At The Same Time To Fulfill The Application Of The Right To Pleadings

The right of defense is the right to claim against other party’s request, which has severaltypes. The defense of simultaneous performance is to refuse temporarily,with a intent of the otherparty performing the contract under the principle of good faith, in order to attain the purpose of thecontract, rather than request both parties to perform simultaneously. It’s supported by the principleof fairness and principle of good faith. If an institution is not applicable,it’s just like a dead letterwithout any value. It has theoretical and practical significance to study the issue of institutionapplication. This paper which studies the application of the defense of simultaneous performancewill be divided into four parts as follows:The first part is about the basic theory of this institution. Being clear on understanding thebasic theory is helpful to explore the application of the institution, which can establish afoundation for problems of the study. The analysis about the origin and function of the institutionis helpful to explore the aim. The clarify with other similar system (such as lien, dissolution ofcontract) is helpful to the right fit of the institution.The second part mainly introduces the application of the defense of simultaneousperformance under atypical cases, and case of the time for performance is not the same for bothparties of the contract, and convention applicable situations. There are two kinds of typical cases.One is the contracts which are not easy to identify, such as partnership agreement and donationsubjected to collateral obligation. The other is contract with special transaction type, such ascontinuing contract, installment contract, contract for the benefit of third parties. Whether the rightcan use in the field of case which the time for performance is not the same for both parties is thebone of contention among academia. It’s also the key point to ascertain if there is a legal loopholein this institution. Besides that, we should also admit the agreed ones.The third part mainly analyzes the applied effect of the right. Specifically speaking, itcontains the relationship with limitation, delay of performance, defective performance, partialperformance, bilateral breach. In the condition of delay of performance,this paper hold the viewof adopt both the existential effect theory and exercised effect theory. In the condition of defects toperform, this paper mainly analyzes the relationship with responsibility for warranty of defect.The fourth part is the study about the status quo,where there is no procedural law matchingthe institution. Through analyzing the judgments, this paper classifies the current situation andsummarizes the existing problems. On the basis the existing theory and the comparison oflegislation of other countries and regions, this paper tries to find a suitable path that matches the actual situation of our country.