论采砂权出让合同在情势变更中的利益协调——以成都鹏伟实业有限公司采砂权纠纷案为视角

The Coordination of Interests of the Sand Mining Right Assignment Contract in Circumstance Change—From the Perspective of the Sand Mining Right Dispute Case of Chengdu Pengwei Industrial Co., Ltd.

采砂权出让合同的履行涉及不同利益诉求的对立可能,在情势变更事由作用时冲突更易显现。结合鹏伟公司案的裁判实际,法院在应对这种利益纠纷时,存在缺乏公益之间、私益之间及彼此间的利益权衡原则与难以合理分担情势变更事由造成的损失等不足。以宏观视角分析,行为者应当明晰不同利益关系对立乃至冲突时的保障顺位,完善情势变更等情形下采砂权管理的法律规则,鼓励“中立”、“区分”与“裁量”取向为关键的裁判实践。

The performance of the sand mining right assignment contract involves the possibility of the conflict of different interests, and the conflict is more likely to appear during circumstance change. Combined with the actual judgment of the Pengwei Company case, when the court dealt with such interest disputes, there were still shortcomings such as the lack of the principle of ba-lancing interests between public interests, between private interests and each other, and the difficulty of sharing losses caused by circumstance change. To this end, from a macro perspec-tive, actors should clarify the order of protection when different interests are opposed or even conflict, improve the legal rules for the management of sand mining rights in situations such as circumstance change, and encourage judgment concepts of “neutrality”, “discrimination” and “discretion”.