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情势变更是合同法中基于公平原则而适用的一项救济性原则。但其概念不够清晰,内容过于抽象,适用尚无统一的标准,容易被滥用,在司法实践中的适用主要依靠裁判者自由裁量。然而,情势变更原则的适用是否合理?情势变更能否体现实质公平?公平的衡量标准是什么?审判者与双方当事人追求的公平是否一致?通过法律救济使企业免受损失是否违背经济运行规律?情势变更与商业风险是否有明确界限?诸如此类问题均值得思考。情势变更原则的适用,不能照搬判例法国家的模式,应当从我国实际出发,参照公平原则的适用,将其归入到不可抗力这一制度之下,而无需另行为其进行制度设计。
The change of circumstances is a relief principle applicable in the contract law based on the principle of fairness. However, its concept is not clear enough, the content is too abstract, there is no uniform standard for application, and it is easy to be abused. The application in judicial practice mainly relies on arbitrators’ discretion. However, the application of the principle of change of circumstances is reasonable? Whether the change of circumstances can reflect substantive fairness? What are the fair measures? Are the judges and the parties pursuing fairness consistent? Is it against the law of economic operation to protect enterprises through legal remedies? Are there any clear boundaries between changes in situation and business risks? Questions such as these are worth considering. The application of the principle of change of circumstances can not copy the model of the country of case law and should be based on the reality of our country and refer to the application of the principle of fairness under the system of force majeure without any separate system design for it.