The Theory Of The Judgment Of Exchange Performing

When the plaintiff ’s right of claim for payment and the defendant’s right of counterplea for concurrent performing are established simultaneously,the court in principle needs to rule a judgment of exchange performing,which shall correspond with the substantial purpose of the bilateral contract and the normative function of the right of concurrent performing counterplea.Since the right of concurrent performing counterplea was first stipulated in Article 66 of the PRC Contract Law in 1999,the civil jurist has conducted detailed research and exploration on the substantial effect of the the right of concurrent performing counterplea.However,there is little concern in the field of civil procedure about the effect of procedural law and the special application.The absence and vacancy of legislation have caused the theoretical disputes and led to the confusion of judicial practice.In view of this,this paper uses the methods of normative analysis,comparative study,crossover study,empirical research to positively responds to the expectation,strangeness and misunderstanding of the practice field on the judgment of exchange performing from the perspective of the connection of the substantive law and procedural law.It promotes the practice field to change their ideas and deepen their understanding,so as to face the challenges brought by the development of the standardization of civil judgment in a better way.In addition to the introduction,this paper has five parts,the main content is as follows.Chapter one: the basic theory of the judgment of exchange performing.This chapter is divided into four sections,which discuss the substantial legal basis of the judgment of exchange performing,the definition of the judgment of exchange performing,the legitimacy analysis of the judgment of exchange performing,and the expected function of the judgment of exchange performing.The right of concurrent performing counterplea entitles a party in a bilateral contract to refuse to perform its obligation before the other party fails to perform.In order to respect the disciplinary right of the parties to the greatest extent and balance the rights and obligations of both parties,the party shall have the right to choose whether to exercise the right of concurrent performing counterplea by means of counterclaim or counterplea.When the defendant claims to perform the right of concurrent performing counterplea by means of counterplea,the court should,in principle,make a judgment of exchange performing.The judgment of exchange performing is the "enforcement document with conditions”.There are lots of controversies on the judgment of exchange performing in the procedural law field,but from the perspective of the substantial purpose of the bilateral contract and the normative function of the right of concurrent performing counterplea,the judgment is consistent with the principle of adversary and the principle of good faith,and the judgment meets the inherent requirement of the right of concurrent performing counterplea.In addition,the judgment of exchange performing has the functions of expanding the economic benefits of litigation,balancing the interests and demands of the parties and promoting economic development.Chapter two: the current situation of the judgment of exchange performing in China.This chapter is divided into two aspects: review of the current situation and reflection on the problems of the judgment of exchange performing.There is no institutional legislation about the judgment of exchange performing in China yet.Although the Opinions on the Coordination of the Operation of the Standing Trial and Execution,the "Minutes of the Ninth People’s Conference",and the Draft Law on Enforcement have already shown the prototype of the system,these provisions are not institutional legislation in the strict sense and cannot be called the real sense of the judgment of exchange performing.At the same time,judicial practice has preceded pioneering explorations on the judgement related to the right of concurrent performing counterplea prior to theory and legislation process.But the practice is confusing and lacks standardization,which lead judgements about the exchange performing mechanism fail to meet its expectation.The reason for the above-mentioned problems in the development of the judgment of exchange performing is closely related to the incomplete understanding of the burden of claims and the imperfection of the enforcement rules.Chapter three: the elements of the establishment of the judgment of exchange performing.This chapter is divided into two sections,which introduce the substantive and procedural elements respectively.From the viewpoint of the substantive elements,when the plaintiff’s right of payment and the defendant’s right of concurrent performing counterplea is established at the same time,the plaintiff fails to prove the obligation has been treated or has claimed treatment,and the plaintiff’s payment is enforceable,the judge should make a judgment of exchange performing.From the viewpoint of procedural elements,the judgment of exchange performing is based on the rule of exercising the right of concurrent performing counterplea.Because the court cannot ex officio force the parties to accept the legal effect of the right of concurrent performing counterplea,the parties must have the desire to exercise the right of counterplea,and the judge cannot invoke the initiative based on the existing facts or evidence.Of course,the concurrent performing counterplea is a typical right defense,so the judge can only give negative interpretation,and the interpretation should be based on the meaning that the parties have the intention to perform the right of concurrent performing counterplea.Chapter four: The basic framework of the judgment of exchange performing.This chapter is divided into two sections,which examine the scope of application and the formal structure of the judgment of exchange performing.First of all,the scope of application of the judgment of exchange performing should be based on the scope of application of the right of concurrent performing counterplea.With the principle of good faith as the criterion,there is expanded application of the judgment of exchange performing for non-bilateral contract debts,the conversion of the right of plea against the advance performance,and the debts not based on the same legal relationship.In addition,there is limitation application of the judgment of exchange performing in the case of failure to pay due to the imputability of one party,or the application of the payment judgment beyond the original purpose of the standard.Second,the main text of the judgment of exchange performing should be expressed in a manner that takes the plaintiff’s request for payment and the defendant’s counterplea of concurrent performing into account.At the same time,the expression of the main text of the judgment of exchange performing should also distinguish the way of claiming the right of concurrent performing counterplea and clarify the conceptual meaning of "simultaneous performance",avoiding the misrepresentation of the judgment of exchange performing as the judgment of simultaneous performing or the judgment of successive performing.For the latter,only when the defendant’s performance is continuous or requires the intervention of a third party,a judgment of successive performing may be exceptional.In addition,to determine whether the right of concurrent performing counterplea is established,the judge must illustrate for the judgment with detailed explanation of the facts and the applicable law,as well as the corresponding reasons,which can provide a rationalization for the settlement of the dispute.Chapter five: analysis of the effectiveness of the judgment.This chapter is divided into two sections,in which the effect of the judgment is discussed in depth from two aspects: the main text of the judgment and the reasons for the judgment.Firstly,the controversy over the effect of the main text of the judgment mainly focuses on the determination of the objective scope of res judicata and the enforcement.The court ordered the plaintiff to pay is not a judgment on the subject matter of the lawsuit,with no res judicata,and the defendant may not apply for enforcement based on this.The plaintiff’s payment shall be an element of the commencement of enforcement,and the enforcement agency shall start enforcement only after the conditions of payment have been fulfilled,and the plaintiff must prove the fact about the fulfillment of its obligation to be paid or has proposed to pay.Secondly,there are three theories for the factual determination of the reasons for the judgment on the effect of the subsequent lawsuit:res judicata,issue preclusion force,official document evidence.In order to avoid the contradictory situation caused by the limitations of the objective scope of res judicata,the binding force can be given to the right of concurrent performing counterplea using the theory of issue preclusion force.