1. Introduction

Since January 2020, the "new crown pneumonia" has been the hardest hit area in Wuhan and quickly broke out nationwide. Accordingly, the State Council and various provinces and cities have successively adopted a series of targeted epidemic prevention and control measures such as appropriately extending the Spring Festival holiday, postponing the resumption of work of enterprises, and closed management of communities, and the prevention and control measures taken by the central government and local authorities in this epidemic prevention and control have had a significant impact on many industries in society. Accordingly, this article will focus on whether the "new crown pneumonia" can constitute force majeure and lead to the inevitable cancellation of the housing lease contract when the tenant, especially small and medium-sized enterprises, has signed a housing lease contract before the prevention and control of the "new crown pneumonia" epidemic and the remaining lease period is long, and the current situation that the "new crown pneumonia" epidemic prevention and control needs to temporarily cannot use the house normally for operation?

2. What is "force majeure"?

Article 153 of the General Principles of the Civil Law of the People's Republic of China stipulates that force majeure refers to unforeseeable, unavoidable and insurmountable objective circumstances.

Accordingly, a force majeure clause is a clause that stipulates that the party suffering from force majeure may be exempted from liability for performance of the contract when an accident occurs after the conclusion of the contract that the parties cannot foresee, avoid or control at the time of entering into the contract, resulting in the inability to perform the contract or the inability to perform the contract as scheduled.

3. Does "new crown pneumonia" constitute force majeure?

In view of the current situation of "new crown pneumonia" prevention and control in China, the "new crown pneumonia epidemic" has not yet been able to determine its source of infection, and there are no effective clinical treatment drugs and treatments. "New coronary pneumonia" itself should be an objective circumstance that cannot be foreseen, avoided and cannot be overcome under the current existing medical technology conditions, and its nature can be recognized as a force majeure event stipulated in the above-mentioned General Provisions of the Civil Law of the People's Republic of China and the Contract Law of the People's Republic of China.

At the same time, on February 10, 2020, Zang Tiewei, spokesman of the Legal Affairs Commission of the Standing Committee of the National People's Congress and director of the Research Office, said: At present, the new crown pneumonia epidemic in China is occurring, and in order to protect public health, the government has also taken corresponding epidemic prevention and control measures. For the party who is therefore unable to perform the contract, it is a force majeure that cannot be foreseen, avoided and cannot be overcome.

4. Does the force majeure caused by "new coronary pneumonia" necessarily lead to the termination of the lease contract?

After searching the relevant laws and regulations, there are two legal consequences arising from force majeure:

(1) Legal consequences of partial or total exemption.

Paragraph 1 of Article 180 of the General Provisions of the Civil Law of the People's Republic of China stipulates that if a person is unable to perform a civil obligation due to force majeure, he shall not bear civil liability. Where laws provide otherwise, follow those provisions.

Article 117 of the Contract Law of the People's Republic of China stipulates that if the contract cannot be performed due to force majeure, the liability shall be partially or completely exempted according to the impact of force majeure, unless otherwise provided by law. If force majeure occurs after a party delays performance, it cannot be exempted from liability. "Force majeure" as used in this Law refers to objective circumstances that cannot be foreseen, avoided or overcome.

(2) Legal consequences of contract rescission

Article 94 of the Contract Law of the People's Republic of China stipulates: "The parties may rescind the contract under any of the following circumstances: (1) the purpose of the contract cannot be achieved due to force majeure; ......”

According to the above legal provisions, our lawyer believes that although the current "new crown pneumonia" prevention and control measures are unforeseeable, unavoidable and insurmountable force majeure, they do not necessarily lead to the exemption and termination of the lease contract. A force majeure event can only be an exemption if there is a causal relationship between the force majeure event and the consequences of the failure to perform the rental contract, resulting in the inability to perform the contract. Whether the "new crown pneumonia" prevention and control measures as force majeure constitute a cause of exemption for contract cancellation is related to the performance period of the lease contract, the content of the contract performance, the degree of impact of the epidemic and the causal relationship. The "new crown pneumonia" prevention and control measures have had a certain impact on the performance of the lease contract, but it should be noted whether the impact is sufficient to make the purpose of the lease contract unrealizable, whether the lease contract can continue to be performed after the epidemic, and whether the purpose of the lease contract can be achieved is an important consideration for the lessee when requesting the termination of the lease contract on the grounds of force majeure.

At the same time, on February 13, 20120, the Nanjing Intermediate People's Court issued the Implementation Opinions on Properly Hearing Commercial Contract Dispute Cases and Promoting the Stable Development of Micro, Small and Medium-sized Enterprises, which clearly pointed out: adhere to the principle of encouraging transactions and properly handle contractual relationships. Article 5 stipulates that if it is truly impossible to continue to perform in accordance with the original provisions of the contract due to the impact of the epidemic, the parties shall be encouraged and guided to maintain the contractual relationship and continue to complete the transaction by changing the method of performance, adjusting the time of performance, etc., so as to avoid "one-size-fits-all" judgment to terminate the contract. On February 18, 2020, the Shaoxing Intermediate People's Court also issued a corresponding hearing opinion on lease contract disputes during the "new crown pneumonia" period, which also insisted on encouraging transactions and avoiding "one-size-fits-all" judgment to terminate the contract on the issue of lease contract disputes.

Secondly, from the current prevention and control of "new crown pneumonia" in Nanjing, as of February 17, 2020, there have been no new confirmed cases in Nanjing for two consecutive days, and the "new crown pneumonia" epidemic in the city has been effectively prevented and controlled to a certain extent. On February 18, 2020, the Nanjing Joint Prevention and Control Work Headquarters for the Novel Coronavirus Pneumonia Epidemic issued the Notice on Optimizing Epidemic Prevention and Control Measures to Accelerate the Resumption of Work and Production, pointing out: Enterprises and business households that accelerate the resumption of work and production, meet the protection standards and meet the prevention and control requirements, implement the filing system to resume work and production, and the online application is deemed to be completed as the record, and work can be resumed. For the relatively concentrated operating enterprises (places) of personnel, they will not resume work and business for the time being.

To sum up, we have reason to believe that with the further emergence of effective measures for the prevention and control of the "new crown pneumonia" epidemic, the temporary business impact of the "new crown pneumonia" prevention and control measures on operating enterprises (places) will be gradually eliminated, and the current force majeure caused by the "new crown pneumonia" does not necessarily lead to the termination of the lease contract, whether from the perspective of legal provisions, judicial practice standards or the overall situation of "new crown pneumonia" epidemic prevention and control.

(This article is translated by software translator for reference only.)