A Study On Unsafe Right Of Defense System

The unsafe right of defense system is an important system of performing contract, and is the special system belonging to continental law system. The law of unite contract in our country not only inherits the fundamental contents of traditional theory of continental law, meanwhile, but also absorbs some flexibilities of the anticipatory breach from Anglo-American law, thus forms our country itself characteristic the unsafe right of defense system. For the unsafe right of defense system, scholars have all kinds of research, however, the present study is obviously lack in depth, breadth and systematization, that leads to kinds of predicament and confusion in its theory and judicial practice. Based upon systematic research and emphasis, thesis carries out comprehensive and in-depth research on the unsafe right of defense system.This thesis consists of introduction and three parts. The introduction puts forward existing problems of the unsafe right of defense system in our country and importance of its research .Part 1 analyses the theory of the unsafe right of defense system. The part first analyses jurisprudence foundation and fundamental legal characteristic on establishing the unsafe right of defense system in traditional continental law. Basically, the thesis explores the unsafe right of defense system of contract law in our country, considers that the system of our country inherits and develops traditional theory, is combined with traditional frame and regular creativity, and analyses its establishing rationality from the view of jurisprudence. In the part, emphatically discusses legal nature on the unsafe right of defense, compared to the nature of unsafe right of defense in traditional continental law, makes comments on the right to statutory canceling contract, considers this rule of the right to statutory canceling contract is worth of affirming in contract law, and rationally links up and explains this rule and traditional theory about the comments of nature of the unsafe right of defense.Part 2 comparative analysis and research on the two system of the unsafe right of defense and anticipatory breach. Anglo-American law has anticipatory breach system, it is corresponding to the unsafe right of defense system in continental law. Because our contract law introduces the two kinds system, their relationship and location is indistinct, that lead to chaos and conflict of their application, thus impedes the effective application of the unsafe right of defense system. So, the author begins with connotation of anticipatory breach, clears some theoretic misunderstanding, puts forward the theoretic system of anticipatory breach that should consist of anticipatory repudiation and prospective inability to perform, anticipatory repudiation includes explicit repudiation and implicit repudiation. In order to distinguish from the unsafe right of defense and anticipatory breach, further understand the unsafe right of defense system, this part discusses in detail their same and difference from total to part, based on comparative analysis the unsafe right of defense system in continental law and anticipatory repudiation of anticipatory breach from Anglo-American law, the author considers the scope of them is excluding and they doesn't replace each other, so they can't take place contradictory and repeat. However, comparative research the unsafe right of defense system in continental law and prospective inability to perform of anticipatory breach from Anglo-American law, the author considers that although they have more similar characteristic, the choice of unsafe right of defense system is more rationality for our legislation. Last, based on the self-criticism of theoretic related reviews, depended on the theory of two legal systems, the thesis coordinates the unsafe right of defense and anticipatory breach in contract law from the legal explanation, makes their relationship clear, so that the law can be correctly understanding and application and the contract legal system can gain harmony.Part 3 discusses in detail specific application and its perfect problems on the unsafe right of defense system. The present law of contract introduces the fundamental frame of the traditional unsafe right of defense system, meanwhile,...