Under the epidemic, how does the law respond to "unexpected circumstances"

——Interview with Wang Yi, Vice Chairman of the Civil Law Research Society of the Chinese Law Society

"The sky is unpredictable" is a common saying about unpredictable things happening in real life. In law, they are defined as "force majeure".

This new coronary pneumonia epidemic is sudden. How to bear the losses caused by the epidemic and its prevention and control measures to the parties, how to determine the force majeure and whether the situation can be changed to better protect the rights and interests of the parties are particularly concerned by the society. In response, the reporter interviewed Wang Yi, vice president of the Civil Law Research Society of the Chinese Law Society and dean of the School of Law of Renmin University of China.

Reporter: Does the epidemic situation and its prevention and control belong to force majeure?

Wang Yi: The epidemic situation and its prevention and control are force majeures prescribed by law.

On February 10, 2020, the Legal Work Committee of the Standing Committee of the National People's Congress pointed out in a reporter's question on legal issues related to epidemic prevention and control, "There is currently a sudden public health event of a new coronavirus infection pneumonia epidemic in China. The government has also adopted corresponding epidemic prevention and control measures. For parties who cannot perform the contract, it is force majeure that cannot be foreseen, unavoidable and insurmountable. " The reply identified the epidemic situation and its prevention and control as force majeure as required by law.

As early as the period of SARS, the Supreme People's Court issued a notice on June 11, 2003, and determined that the SARS epidemic and its prevention and control belonged to force majeure prescribed by law. At present, the judicial policies related to the epidemic situation and its prevention and control issued by the High People's Courts in many provinces have no exceptions. For civil cases directly affected by the epidemic situation and its prevention and control, the general rules of civil law, contract law and tort The liability law and other provisions concerning force majeure shall be handled in accordance with the principles of good faith and fairness; if other laws and administrative regulations provide otherwise, the provisions shall be followed.

Reporter: How to understand the force majeure rules established by China's civil legislation?

Wang Yi: According to the general provisions of the Civil Law, force majeure refers to an objective situation that cannot be foreseen, unavoidable and insurmountable.

According to the general theory of Chinese civil law, force majeure is not an act of the parties themselves, but an event in the facts of civil law. Whether natural disasters, government actions, or social events are significant or significant, as long as the parties have paid due attention and belong to abnormal accidents, it constitutes force majeure.

In the trial practice of our country, the objective situation that the parties can neither foresee, unavoidable and insurmountable is naturally force majeure; although the parties can foresee, the foreseeable is insufficient and incomplete, and the objective situation that cannot be avoided and insurmountable is also force majeure. The objective situation that the parties can foresee or already know, but cannot avoid and cannot overcome, is not force majeure.

Reporter: How to understand the force majeure clause agreed by the parties?

Wang Yi: The force majeure clause is not based on legal provisions, but appears based on the agreement of the parties and belongs to the contract clause.

In trading practice, there may be four different types of force majeure clauses: First, the force majeure rules are reiterated; second, compared with the force majeure rules, the scope of force majeure is expanded, and beyond the law, force majeure matters are added; third, all The application of force majeure rules is excluded; fourth, compared with the force majeure rules, the scope of force majeure is narrowed down, and the part of force majeure matters prescribed by law is excluded.

After entering into the contract, the force majeure clause first faces the issue of validity judgment. If the force majeure clause is a standard clause, there is a situation stipulated in Articles 52 and 53 of the Contract Law, or if the party providing the standard clause unreasonably exempts himself from the responsibility, increases the other party ’s liability, and excludes the other party ’s main rights, the clause is invalid. . If the force majeure clause does not belong to the standard clause, a validity judgment is required.

Reporter: If the epidemic situation and its prevention and control are included in the force majeure rules, and the continuation of the contract is obviously unfair to one party, can the situation change system be applied?

Wang Yi: The editor of the draft contract of the Civil Code confirms, "After the contract is established, the basic conditions of the contract have undergone significant changes that are not foreseeable when the parties concluded the contract and are not commercial risks. Continued performance of the contract is obviously unfair to the parties. The adversely affected parties may renegotiate with the other party; if the negotiation fails within a reasonable period, the parties may request the people's court or arbitration institution to change or terminate the contract. "Paragraph 2 confirms," ​​The people's court or arbitration institution shall combine the actual situation of the case Change or rescind the contract according to the principle of fairness. ”At this point, force majeure that was once“ exiled ”by the situation change system in the judicial interpretation was“ please go home ”by the situation change system in the draft civil code. This choice is worthy of recognition.

Before the promulgation of the Civil Code, it was obviously unfair for one party to continue to perform the contract due to the epidemic situation and its prevention and control. Although it is still not possible to advocate the provisions of the draft Civil Code, the Supreme People ’s Court ’s notice has confirmed that due to the SARS epidemic For reasons, the performance of contract disputes that have a significant impact on the rights and interests of a party according to the original contract can be dealt with according to the specific circumstances and applying the principle of fairness. This shows that at that time, there was a judicial concept that left room for the situation change system to apply.

Although the Supreme People's Court has not made a clear statement on whether the epidemic situation and its prevention and control can be applied to the situation change system, judging from the judicial policies issued by some high people's courts, it basically shows the following attitude: the epidemic situation and its prevention and control only cause difficulties in contract execution The parties can renegotiate with the other party; if the contract can continue to be performed, both parties are encouraged to continue to perform. If the negotiation fails within a reasonable time limit, the parties may request changes to the contract performance period, performance method, price amount, etc., and the people's court shall support it in light of the specific circumstances of the case. If the parties only advocate the termination of the contract on this ground, the people's court will not support it, but the continued performance of the contract is obviously unfair to one party or fails to achieve the purpose of the contract. The actual situation determines whether to change or cancel. This judicial attitude is similar to the situation change system established in the draft civil code.

(Reporter Jin Hao)