Research On Right Of Defense And Its Basic Rules

According to different efficacy, civil rights can be divided into right of dominion, right of claim, right of formation, and right of defense. At present, Scholars in China pay more attention to concrete defense system, ignore the basic theory of defense, such as the relationship between defense and right of defense, and defense in civil procedure, and some institution related to defense; these issues don't received enough attention. This dissertation gives an introduction to the formation of defense and its development; discusses fundamental issues of right of defense and hackles the basic rules of defense system, tries to present a complete, clear and systemic view about it. I hope this can supplies some necessary basis for theory research, and gives some theory support for its practical application, meanwhile raises a feasible suggestion for perfection of right of defense in China. Besides to introduction, this dissertation includes five chapters.First chapter is about the history of defense institution and its development. Civil right of defense originated from Roman law, so Roman law is our first step. Through middle ages roman, defense system got great development; Savigny abstracted the right of defense, and Windscheid cleared the orientation of right of defense and made it to be a right institution. Afterworld, different countries succeeded totally different defense system, such as France hasn't finished the work of abstract of right of defense yet, while in Germany, they made a perfect system of defense, and did a deep theory research on it. Besides that, this chapter also discusses defense system in Common Law and give a general introduction to defense system in China.Chapterâ…¡is research on basic issues of right of defense. Definition of the right of defense has very important meaning to this topic; it is the base and premises. The properties of right of defense are its difference to other rights. In this dissertation, I put forward that in the aspect of civil procedure law, the object of ageing defense is right of claim to recover; in the aspect of substantial law, the object of it is right of claim to compensation. On the basis of classification, I divide right of defense into unilateral limitation defense and two-way protection defense according to setting aim. After giving a simple introduction on some countries'law codes, I do some basic research on defense, including the basic meaning of defense, its types and efficacy, and I give more words to the relationship between defense and right of defense. The great difference between defense and right of defense is that right of defense can limit the efficacity of right of claim but donot destroy it while defense in civil law can hinder right of claim or destroy it. The exertion of right of defense should advance by obligee, while defense to fact just advance by one party and the judge will check it.As to the relationship between right of defense and right of claim, I think, there are several factors for right of claim to be the object of right of defense. First, only when right of claim includes content of delivery, right of defense can be used in form of refuse to delivery and against right of claim. Second, only right of claim to compensate after origin right is affected, can be the object of right of defense, I give keep contract and lease contract as example. Third, as the object of right of defense, this kind of right of claim can only ask the other one to delivery, for right of claim to affirm privilege in 33 in real right law. As to weather or not right of claim to real right can be the object of right of defense, I think right of claim to restoration and repristination can be object of right of defense to ageing limitation. The relationship between right of defense and right of formation is the key point in this part. Though there are so many differences, their close relationship in formation results in that right of formation is the origin of some right of defense, for guarantor's reversible defense and negative defense. The editor put forward that right of defense in civil procedure can just be defense in lawsuit, for it just against the other party;while right of formation in civil procedure can be a lawsuit, not only a kind of defense. In China, Lien has separated from defense system and becomes a separated civil right. Before through auction and sale-off to reach the priority, debtor can refuse the owner's claim to deliver retained thing, so in some degree, lien has some similarity to right of defense, or in other word, lien holder can have two kinds of right, one is right of priority, the other is right of defense.Chapterâ…¢is the key part of this dissertation, it is about the construction of basic rules for right of defense. In this chapter, I do a systemic research on efficacy rules, exertion rules, and forfeit rules of right of defense, I also discuss the following issues separately:the relationship between right of defense in civil procedure and out of procedure, its efficacy, counteract of creditor's right with right of defense, the way to abandon right of defense and its efficacy and so on. These rules can direct a practical way to solve problems. Meanwhile, I give some suggestion for legislation.As to that the efficacity of right of defense is to hinder or to destroy right of claim, I think, it is better to define its efficacity of right of defense is to hinder, for it can make efficacity of right of defense accordance with its defination, unify the efficacity of kinds of defense, and establish basis for it to be a separate kind of civil right. In the aspect of taking effect of right of defense, I consider that right of defence take effect only when obligee hold. As to countact credit with right of defense to ageing, I consider that the efficacity of right of defense is to hinder right of claim, not to destroy it. Credit overrun time limitation can be a kind of nitiative credit to offset, but when debtor advance right of defense to aging, the counteract cannot happen. When debtor abondon it, counteract can happen. As to issue that obligee perform right of defense to delivery, I think the court should reject its appeal. The reason is that, plaintiff only claim to delivery, judgement to delivery simultaneity surpass the scope of plaintiff's appeal, and lost the basic effect of right of defense. Judgement to reject plaintiff's appeal donot have any influence to creditor, and donot make any damage to appellee's right, while judgement to delivery at the same time is undefinate, and rely to party's performation, so in the condition that judgement to delivery at the same time, it is inadvisable to make this kind of judgement.About the limitation to exertion of right of defense, I consider that we should limit the time to perform right of defense, obligee can only use it before first trial argument, orelse, it is kind of abondon. Right of defense can be performed in civil procedure or out of it, but latter donot have the final effect, for efficacity of right of claim and defense should be confirmed by judicial authority through legal procedure. In bilateral contract, the exertion of right of defense is limited. As to the main credit surpass the time limitation, the effect of guarantee, I think, item220 in real right law define right of hypothec to be a kind of statute of repose is unproper, mortgager should have right of defense to time limitation, that is to say, mortgagee should perform his right in time limition, orelse, mortgager can refuse to clear off by guaranty.Abondon right of defense should include factors to be legal act, besides that, the following factors also should include:first, after exist of right of defense; second, the party to do it should have right to manage the interest; third, the meanning to abondon right of defense should give to obligee. Abondon part of right of defense, the other part willnot be influenced. As to effect to party, obligee give up right of defense, equals to obligee donot perform right of defense, legal relationship donot have any change. When scholars discuss limitation to abondon right of defense, they refer to right of defense to time limitation can not be abondon advance. In this dissertation, this issue is not related to abondon right of defense, it is an issue to exclude it. The exclude and abondon is different, the former make right of defense cannot come into being, the latter means that right of defense has occurred, but obligee give up it. In the condition that two parties agree on exclude right of defense,, issues like abondon right of defense and its limitation will not occurr.Chapterâ…£analysis the enforcement of right of defense in civil procedure, this topic is an extended part, and also is indispensable part. In this dissertation, I begin from factors for protection of civil rights, definite the scope of right of defense, put forward that defense in civil procedure include defense in procedure and substantial law, the former inculdes right of defense to hinder lawsuit, and to proof, latter includes right of defense to block, eliminate and delay right. Right of defense to block and eliminate right is right of defense to fact, right of defense to delay right is right of defense in civil law. The main difference between right of defense in civil law and civil procedure law is the nature, scope, and they also have some difference in efficacity. In order to make full use of defense system, judge's interpretation has very important real meaning. The editor put forward that, firstly, interpretation cannot substitute holder to right of defense; secondly, judge should give clear explaination to the factor of right of defense and its legal result; thirdly, should clear the distribution of responsibility to give proof, and transfer of it.In chapterâ…¤, I refer perfection of defense system in China. In view of the shortage in our legislation, such as narrow scope of defination, lack of types, and lack of defense system etc., I raise that evil defense and undue enrichment defense can be substituted by modern institute, no need to add; we should borrow other country's legislation, supplement guarantor's reversibility defense, counteract defense and defense of impossible of delivery, defense of donee to flaw, defense of hiree to repair. After anylsis the relationship between obligation and responsibility, I raise that weather or not exertion of right of defense donot have any influence to obligation, that means for obligation, there are no any difference between exertion or not, but for the confrim of responsibility, right of defense has very important influence. After plaintiff sue, obligation change to responsibility for the judicial authority, and have effect to put teeth in. exertion or abondon of right of defense change the content of obligation and responsibility. Obligee use the right, the real responsibility will less than obligation, the other's appeal will be reject or limit or derogate; he bondon the right, obligation will have the same content with responsibility, and donot have any influence to it. I suggest that, we should make clear regulation about the efficacy, exertion abondon of right of defense in future civil code. I also study out some legal regulation for reference.