Study On The Defense Right Of Simultaneous Performance

With the defense right of simultaneous performance as the object of this study, using the basic research method of systematization analysis, this thesis is divided into three parts. the ontology of the defense right of simultaneous performance, the institutionalism of the defense right of simultaneous performance and obstacles of the defense right (?) simultaneous performance.The first part consists of the history, system adjusting, and theoretical framework as well as the exercise elements effects of the defense right of simultaneous performance. Discussions are made from the perspectives of the history, system, principles and applicable rules, in which the system and principles are paid special attention to. In the system adjusting, the author raises the question from the starting point of the basic operational logic of contract law, and believes that the applicable prerequisite of simultaneous performance (with the specific performance time unclear) can be solved by systems such as contract explanation and contract regulation; besides, the defense right of simultaneous performance is operated outside the contract law with a tension between them. To reconcile this tension, the author conducts the analysis from different perspectives to find the connections between the two and integrate the defense right of simultaneous performance into existing theoretical systems. In the principle part, the author mainly classifies the types of identification and application of entanglement relationships into the original entanglement relationship and non-original entanglement relationship. On the basis of analyzing the application of different entanglement relationships, the author believes that with the development of society and economy, the application of traditional entanglement relationship should be expanded on the one hand and be studied case by case on the other hand to avoid overkill.The second part is developed from the controversy in China's legislative patterns and the probe into the legislative patterns of the civil law system, in which the controversy analysis of China's legislative patterns are the focus. Through studying the legislative patterns of the civil law system, the German model and Japanese model of legislation on the defense right of simultaneous performance are summarized, then means of trade type classification are utilized to compare the German model and the divided model (China's legislation model) as well as the Japanese model and the divided model, and it is finally concluded that the forms of the German model and the Japanese model are same but the content is different, i.e. their legislations seemingly in harmony but actually at variance, the German model and the divided model have the same content with different forms, and their operation effects are similar. On the issue of whether the party to first perform the obligation enjoys the defense right of simultaneous performance, the German model and the Japanese model both have their advantages and disadvantages. China should learn from their respective advantages. On the abolition of the defense right of simultaneous performance, the author believes that on the one hand, China's divided model of the defense right of simultaneous performance has no actual innovations, and on the other hand, the stability of laws requires China's existing legislation to focus on the perfection not abolition of the defense right of first performance.The third part mainly discusses the connection between various performance obstacles and the system of the defense right of simultaneous performance. Specifically, it is divided into the relationship between the defense right of simultaneous performance and breach obstacles and the relationship between the defense right of simultaneous performance and non-breach obstacles. The former classifies breach obstacles into partial performance, delayed performance, impossibility of performance and both parties' fault. The latter discusses non-breach obstacles from the perspectives of force majeure and change of circumstances. The author believes that whether various performance obstacles and the defense right of simultaneous performance excludes each other or enjoys co-existence (i.e. the same party bears the liability of breach and enjoys the defense right of simultaneous performance) should be studied case by case, and the connection of systems should be bettered.