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| Guiding Opinions of the Supreme People's Court on Several Issues concerning the Trial of Cases of Disputes over Civil and Commercial Contracts under the Current Situation | | 最高人民法院印发《关于当前形势下审理民商事合同纠纷案件若干问题的指导意见》的通知 |
(No. 40 [2009] of the Supreme People's Court) | |
（法发〔2009〕40号） |
The higher people's courts of all provinces, autonomous regions and municipalities directly under the Central Government, the Military Court of the PLA, and the Xinjiang Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uigur Autonomous Region: | |
各省、自治区、直辖市高级人民法院，解放军军事法院，新疆维吾尔自治区高级人民法院生产建设兵团分院： |
We hereby issue the Guiding Opinions of the Supreme People's Court on Several Issues concerning the Trial of Cases of Disputes over Civil and Commercial Contracts under the Current Situation to you. Please earnestly implement them in light of local actualities. | |
现将最高人民法院《关于当前形势下审理民商事合同纠纷案件若干问题的指导意见》印发给你们，请结合当地实际，认真贯彻落实。 |
July 7, 2009 | |
二○○九年七月七日 |
Guiding Opinions on Several Issues concerning the Trial of Cases of Disputes over Civil and Commercial Contracts under the Current Situation | |
关于当前形势下审理民商事合同纠纷案件若干问题的指导意见 |
Currently, the conflicts and disputes triggered by the spread of the global financial crisis have been clearly reflected in the judicial field, and the number of civil and commercial cases, especially cases of disputes over civil and commercial contracts relating to business operation, continues to increase significantly. In the meantime, a lot of new issues on trial practice triggered by the changes in the macroeconomic situation have emerged. To surround the economic development strategies of the state and the requirements for “maintaining growth, protecting people's livelihood and ensuring stability”, adhere to the guideline of “taking trial as the cornerstone, bearing in mind the overall objective, helping each other and jointly overcoming the hard times”, firmly establish the concept of service for the overall objective and justice for the people, seriously study and timely solve the universal and key issues closely related to changes in the macroeconomic situation in the practice of civil and commercial trials and effectively resolve conflicts and disputes are not only the important tasks of the departments of civil and commercial trials to cope with the financial crisis, but also of great significance in maintaining the integrity of the order of market transactions, safeguarding a fair investment environment under the rule of law, fairly settling disputes, boosting the market confidence, etc. We hereby put forward the following opinions on several issues concerning the people's courts' trial of cases of disputes over civil and commercial contracts under the current situation. | |
当前，因全球金融危机蔓延所引发的矛盾和纠纷在司法领域已经出现明显反映，民商事案件尤其是与企业经营相关的民商事合同纠纷案件呈大幅增长的态势；同时出现了诸多由宏观经济形势变化所引发的新的审判实务问题。人民法院围绕国家经济发展战略和“保增长、保民生、保稳定”要求，坚持“立足审判、胸怀大局、同舟共济、共克时艰”的指导方针，牢固树立为大局服务、为人民司法的理念，认真研究并及时解决这些民商事审判实务中与宏观经济形势变化密切相关的普遍性问题、重点问题，有效化解矛盾和纠纷，不仅是民商事审判部门应对金融危机工作的重要任务，而且对于维护诚信的市场交易秩序，保障公平法治的投资环境，公平解决纠纷、提振市场信心等具有重要意义。现就人民法院在当前形势下审理民商事合同纠纷案件中的若干问题，提出以下意见。 |
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| I. Prudently applying the principle of “change of situation” and reasonably adjusting the interest relationship between two sides | | 一、慎重适用情势变更原则，合理调整双方利益关系 |
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| 1. Currently, a lot of disputes have arisen from the product transactions and capital flow between market participants under the influence of such factors as intense fluctuation of prices of raw materials, changes in market demand and insufficient working capital. For the requests filed by some parties in litigation for modifying or rescinding contracts under the principle of “change of situation”, the people's courts shall strictly examine them under the principle of equity and principle of change of situation. | | 1、当前市场主体之间的产品交易、资金流转因原料价格剧烈波动、市场需求关系的变化、流动资金不足等诸多因素的影响而产生大量纠纷，对于部分当事人在诉讼中提出适用情势变更原则变更或者解除合同的请求，人民法院应当依据公平原则和情势变更原则严格审查。 |
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| 2. When applying the principle of “change of situation”, the people's courts shall fully realize that the global financial crisis and changes in the domestic macroeconomic situation are not completely a process of sudden change that hits all market participants unexpectedly but a gradually evolving process. During the evolving process, the market participants shall be able to foresee and estimate market risks to some extent. The people's courts shall apprehend the application conditions for the principle of “change of situation” in accordance with law, strictly examine the “unforeseeable” claims put forward by the parties concerned, and more prudently apply the principle of “change of situation” to the contracts under which the subject matters involve bulk commodities long known for their active market attributes and volatile prices such as petroleum, coke and nonferrous metals and risk investment type of financial products such as stock and futures. | | 2、人民法院在适用情势变更原则时，应当充分注意到全球性金融危机和国内宏观经济形势变化并非完全是一个令所有市场主体猝不及防的突变过程，而是一个逐步演变的过程。在演变过程中，市场主体应当对于市场风险存在一定程度的预见和判断。人民法院应当依法把握情势变更原则的适用条件，严格审查当事人提出的“无法预见”的主张，对于涉及石油、焦炭、有色金属等市场属性活泼、长期以来价格波动较大的大宗商品标的物以及股票、期货等风险投资型金融产品标的物的合同，更要慎重适用情势变更原则。 |
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| 3. The people's courts shall reasonably distinguish between change of situation and commercial risks. Commercial risks are inherent in business activities, such as changes in supply and demand and price changes not reaching the level of abnormal changes. The change of situation is not a risk that is inherent in the market system and cannot be foreseen by the parties when they entered into a contract. When deciding whether a major objective change is a change of situation, the people's court shall take into account such factors as whether the type of risk is one unforeseeable in the common sense, whether the degree of risk is far beyond the reasonable expectation of a normal person, whether the risk can be prevented and controlled and whether the nature of transaction falls within the usual scope of “high risk and high return”, and distinguish between the change of situation and commercial risks in the specific cases in combination with the specific situation of the market. | | 3、人民法院要合理区分情势变更与商业风险。商业风险属于从事商业活动的固有风险，诸如尚未达到异常变动程度的供求关系变化、价格涨跌等。情势变更是当事人在缔约时无法预见的非市场系统固有的风险。人民法院在判断某种重大客观变化是否属于情势变更时，应当注意衡量风险类型是否属于社会一般观念上的事先无法预见、风险程度是否远远超出正常人的合理预期、风险是否可以防范和控制、交易性质是否属于通常的“高风险高收益”范围等因素，并结合市场的具体情况，在个案中识别情势变更和商业风险。 |
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| 4. In apprehending the value of adjustment, the people's courts shall follow the principle of giving weight to the protection of non-defaulting party. The principle of “change of situation” shall not be applied simply to relieve debtors from obligations and let creditors bear adverse consequences, but to fairly and reasonably adjust the interest relations between both sides with a full consideration of balance of interests. In litigation, the people's court shall actively direct the parties concerned to renegotiate and revise contracts; if renegotiation fails, the court shall try to solve disputes through mediation. In order to prevent the normal order of market transactions from being affected by the abuse of the principle of “change of situation”, if the people's court decides to make a ruling under the principle of “change of situation”, it shall strictly implement the relevant procedures for examination and approval of the application of the principle of “change of situation” in accordance with the requirements of the Notice of the Supreme People's Court on Correct Application of the Interpretation II of Several Issues concerning the Contract Law of the People's Republic of China to Serve the Overall Work Objectives of the Party and the State (No. 165 [2009] of the Supreme People's Court). | | 4、在调整尺度的价值取向把握上，人民法院仍应遵循侧重于保护守约方的原则。适用情势变更原则并非简单地豁免债务人的义务而使债权人承受不利后果，而是要充分注意利益均衡，公平合理地调整双方利益关系。在诉讼过程中，人民法院要积极引导当事人重新协商，改订合同；重新协商不成的，争取调解解决。为防止情势变更原则被滥用而影响市场正常的交易秩序，人民法院决定适用情势变更原则作出判决的，应当按照最高人民法院《关于正确适用〈中华人民共和国合同法〉若干问题的解释（二）服务党和国家工作大局的通知》（法〔2009〕165号）的要求，严格履行适用情势变更的相关审核程序。 |
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| II. Reasonably adjusting the amount of liquidated damages in accordance with law and fairly solving issues on the liability for breach of contract | | 二、依法合理调整违约金数额，公平解决违约责任问题 |
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| 5. Nowadays, breaches of civil and commercial contracts are quite prominent due to the changes and impacts of the domestic macroeconomic environment. Where the parties insert a clause on liquidated damages in a contract which are excessively higher than the losses caused by the breach of contract or are very punitive, the people's court shall, in accordance with the contents and spirit of the provisions on adjusting the excessively high liquidated damages in paragraph 2 of Article 114 of the Contract Law and Article 29 of the Interpretation II of the Supreme People's Court of Several Issues concerning the Application of the Contract Law of the People's Republic of China (hereinafter referred to as the “Interpretation II of the Contract Law”), reasonably adjust the amount of liquidated damages so as to fairly solve issues on the liability for breach of contract. | | 5、现阶段由于国内宏观经济环境的变化和影响，民商事合同履行过程中违约现象比较突出。对于双方当事人在合同中所约定的过分高于违约造成损失的违约金或者极具惩罚性的违约金条款，人民法院应根据合同法第一百一十四条第二款和最高人民法院《关于适用中华人民共和国合同法若干问题的解释（二）》（以下简称《合同法解释（二）》）第二十九条等关于调整过高违约金的规定内容和精神，合理调整违约金数额，公平解决违约责任问题。 |
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6. Under the current situation that the business operations of enterprises are generally in a difficult condition, if the liquidated damages are excessively higher than the losses caused by the breach of contract, the court shall, under the principle of good faith and fairness as prescribed in the Contract Law, adhere to the nature of liquidated damages, i.e. more as a compensation than a punishment, reasonably adjust the extent of discretion, and effectively prevent the parties from agreeing on excessively high liquidated damages under the pretence of autonomy of will.
．．．．．． | | 6、在当前企业经营状况普遍较为困难的情况下，对于违约金数额过分高于违约造成损失的，应当根据合同法规定的诚实信用原则、公平原则，坚持以补偿性为主、以惩罚性为辅的违约金性质，合理调整裁量幅度，切实防止以意思自治为由而完全放任当事人约定过高的违约金。
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