On The Counterpleaing Right System For Bilateral Contract Execution

Contract Law of the People's Republic of China promulgated in 1999 provides in Article 66 to Article 69 that in performing a contract, the contracting parties enjoy three kind of counterpleaing right—counterpleaing right of simultaneous execution ,counterpleaing right of later execution and counterpleaing right of insecurity. As a new stipulation in the contract law system of China, it is a challenge to the traditional theory, which contributes greatly to the safety of transactions and the protection of the contract complier's benefit and credibility. By comparing and contrasting the corresponding law systems in two law families and international conventions, the thesis looks deeply into counterpleaing right system for bilateral contract in China through referring to the relevant provision in Contract Law. It is found that though having helped to make up for the shortage of traditional contract law, the ternary system of counterpleaing right of simultaneous execution, counterpleaing right of later execution and counterpleaing right of insecurity also leads to the superposition of the right provision and the conflict between the corresponding law systems which we should never ignore, such as the superposition of counterpleaing right of simultaneous execution and counterpleaing right of later execution, the antinomy between counterpleaing right for insecurity and the anticipatory breach and so on. According to the paper, we should extend counterpleaing right of simultaneous execution to such an extent that it can involve counterpleaing right of later execution since the lack of sufficient support of the independence of the latter. Meanwhile, we should also perfect the provision of counterpleaing right for insecurity and the anticipatory breach in law, and make full use of the advantages of the both by adjusting the relationship between counterpleaing right for insecurity and the anticipatory breach properly so as to achieve the purpose of counterpleaing right of insecurity that to balance the interests of both sides come true. In brief, we hope to set up a dualistic counterpleaing right system contended by counterpleaing right of simultaneous execution and counterpleaing right of insecurity, which not only conforms to the tradition of continental law but also has the Chinese feature.