Analaysis On The System Of The Right To Defense Of Bilateral Contract Performance

For the first time Contract Law of People's Republic of China establishes right to defense in the performance of bilateral contract such as the right to defense of simultaneous performance and the right to defense of uncertain performance. Some scholars argue that it is a defy towards the conventional theory to establish right to defense of advance or follow-up performance and the system of anticipatory breach of contract. After a thorough research on the traditional opinions about right to defense and the theories of anticipatory breach of contract, and by making a comparison among the similar law provisions in the world, the paper presents a penetrating analysis of the relevant provisions of Contract Law and scholars' view. The author points out that right to defense of advance or follow-up performance should fall under into the category of the conventional right to defense of simultaneous performance; there is no tenable reason for its self-existent. In order to apply the right to defense of uncertain performance to all kinds of bilateral contracts, and to impartially distribute the right in the interested parties of a contract, the system of anticipatory breach of contract should be abolished and the system of right to defense of be perfected because they overlap and conflict with each other.; For solving the problem of explicit breach of contract, the system of anticipatory refusal of performance should be established according to conventions of Continental Law System. In the paper, the author makes a comprehensive, systematic and penetrating examining on the system of right to defense of performance of bilateral contract and suggest the systems with Chinese characteristics of the right to defense of contract bilateral performance in conformity with the conventions of theContinental Law System by amending and perfecting the contract law.