On The Unsafe Right Of Defense

In the synallagmatic contract,the party who should first perform obligations can meet the danger that the other party can not pay correspondingly.In order to protect the trust benefits of the first performance party,the unsafe right of defense system was constructed. The Unsafe right of Defense,originating in Civil Law of German,is a significant institution of the civil law of Continental Law Legal System.This system greatly prevents contract frauds and protects the legal benefits of the party who should first perform obligations and realizes fair principle of the law.The theory have greatly influenced on many nations' contract law.Distinct nations' legislation about the unsafe right of defense have nothing in common with each other.The Contract Law of the People's Republic of China,effective as of 1999,fully introduces the system of the unsafe right of defense and absorbs the reasonable components of the system of Anticipatory Breach of Contract of the Anglo-American Law. With an organic combination of the two systems,China forms its own system of the unsafe right of defense,enlarged its applying range and developed it.Many experts and scholars have studied this system and gave their own opinions about it.However,many problems have occurred during the legal practice of the system of Unsafe right of Defense and they need us to solve.The paper analysis systematically the concept,the nature and the legal basis of the unsafe right of defense through historical research methods,compare the unsafe right of defense and the Anticipatory Breach of Contract,study the legislative process of our country about the system,make a scientific evaluation about the exercise and effect of the system,and then give views to develop the system of the unsafe right of defense.The paper consists of five parts besides the introduction and conclusion.The first part is about the concept and nature of the unsafe right of defense.It gives Academic and legislative definitions and points out the unsafe right of defense is a short-defense right.Next part is the legal basis and function of the unsafe right of defense.The principle of good faith,the development of contractual liability and the principle of non-change are the legal basis of the unsafe right of defense.It reflects the principle of fairness and Effective,the purpose of encouraging transaction.The third part reference to the legislative origin.this part introduces the related systems of Civil Law and Anglo-American Law.Then Analysis China's contract law about the system of the unsafe right of defense.The forth part is about the effect and the performance of the unsafe right of defense.the party who should first perform obligations can cease acts of preparation,but don't have the right to performance bond.He also has the right to terminate the contract and seek compensation.He must fulfill the obligations of notification and proof.The last part proposes some advices to develop the system of the unsafe right of defense. Firstly,develop the interpretation about the unsafe right of defense in keeping with the system of Anticipatory Breach.Secondly,the burden of proof of the party who should first perform obligations must be reduced.Finally,the "Appropriate security" and "Reasonable period of time" should have clear definitions.