On The Counterpleaing Right In Fulfilling A Contract

Issued on Mach 15th, 1999, and executed on October 1st, The Contract Law of the People's Republic of China (called The Contract Law for short) specifies that while carrying out a contract litigants are entitled to three types of right to counterplea: counterpleaing right of simultaneous execution, counterpleaing right of later execution and counterpleaing right of insecurity. As a new stipulation in the contract law system, it means progress of the national civil law system, which contributes greatly to the safety of safety of transactions, the protection of the contract complier's benefit and credibility, determining the responsibility for breaking the contract, and to the settlement of contract disputes. However, in the present judicial practice, both among litigants and judges problems still exist in their understanding of the counterpleaing right and of its execution. Some ligitants refuse to fulfil their duty by exercising their counterpleaing right even when the contract is slightly broken, and thereby causing many contracts that should be carried out unable to be fulfilled, and violating the main purpose of establishing the counterpleaing system. As such, it is conditional, not arbitrary to exercise the counterpleaing right, although it is an important right granted by law to ligitants. Only when debtors meet legal conditions can they exercise the counterpleaing right. In judicial practice, judges should also grasp the conditions in which to exercise the right, without allowing the contract breaker to escape from his share of responsibility under the excuse of exercising the counterpleaing right, so as to uphold the seriousness of contracts. Therefore, the study of the counterpleaing right is very significant not only to the research work of the relevant theories of the civil business law, but also to judicial practice. By learning from foreign experience about the counterpleaing system in carrying out the contract and by combining what the Contract Law has stipulated about it, this paper has made a thorough and systematic study of the definition of the nature of the counterpleaing right, its theoretic basis and the difficult problems involved in the process of exercising the counterpleaing right. A brief explanation of the important points of each section is as follows:The defining the nature of the counterpleaing right, a brief description is focused on the classification of counterpleaing, with an analysis that in China the counterpleaing right in the process of fulfilling the contract belongs to exercising the counterpleaing right, and that its nature is to counterplea in order to refuse to fulfil any duty. A discussion is made on studying and defining the significance of the nature of the counterpleaing right. In the section of establishing theoretic basis, the focus is placed on the basic principles of the civil law (mainly the principle of integrity and trustworthiness, and the principle of fairness and justice), the balance between transactional safety and efficiency, and the influence of foreign civil legislation on the counterpleaing system. The focus of this paper is to comment on and analyze the difficult problems of the counterpleaing right in the course of fulfilling the contract, and the exposition is laid on the following three points. 1. In the case of the simultaneous counterpleaing right, this paper details the applicable conditions of the right, and whether in applying the conditions, the other litigant can resort to the simultaneous counterpleaing right, if one litigant only promise fulfillment, flaw fulfillment, delayed fulfillment, claiming delay and partial fulfillment. Personal ideas are given on whether litigants can apply the right when mutual repayment outside the contract takes place.2. In the case of the counterpleaing right of insecurity, central discussion is given to the judging standards of impossible payment, its happening reasons, times and problems in exercising the right. A detailed analysis is conducted on whether one of the prerequisites of the ri...