Implied Expected Default And Anxiety Defenses Comparative Study

The implied anticipatory breach of contract is a special rule in the Anglo-American legal system, and the unsafe right of defense is rooted in the civil law system. First, the thesis introduces the two rules'concepts, establishments and developments. These contents contain the two rules'applying preconditions, causes of legal remedies or of exercising the right, methods of legal remedy (legal effect), values of system and so forth. They are the basis of the following comparative studies of the two rules.Secondly, the thesis compares the two rules on five aspects. On the aspect of applying preconditions, the thesis indicates that the comparative way is unreasonable, which picks the unsafe right of defense out of the whole system of right of defense. On the causes of legal remedies or of exercising the right aspect, after the revise of the 321st in the German Civil Code, the two rules are much less having tremendous differences and even cannot be substituted. On the methods of legal remedy (legal effect) aspect, they are almost the same. Further more, the thesis compares the values of system of the two rules, and finds they are the same. Then, why does the Anglo-American legal system produce the implied anticipatory breach of contract but not the unsafe right of defense, and why does the civil law system produce the unsafe right of defense but not the implied anticipatory breach of contract? The thesis illustrates the question briefly according to the comparison of the adaptation of law. The Anglo-American legal system lays emphasis on experience, is accustomed to inductive inference, stares decisis, and emphasizes the law in the action, while the civil law system lays emphasis on abstract concept, is accustomed to deductive inference, and emphasizes rigorous logic and perfect system. These all determine the implied anticipatory breach of contract, which develops according to legal precedent and restatement of law which is just a collection of law, can not survive in the civil law system that is elaborately constructed with concept and logic.Then, the thesis profoundly studies the model of legislation which has the implied anticipatory breach of contract and the unsafe right of defense coexisted. Such model of legislation has brought out many contradictions and conflicts. Are these questions purely produced by legislative technique or due to the introduction of the implied anticipatory breach of contract? In our country, scholars generally have two opinions. The scholars like Yongjun Li argues against the introduction of the implied anticipatory breach of contract, while the scholars like Liming Wang hold that it is necessary to introduce it. The thesis approves of the former opinion. The later opinion is objected and its arguments are unreasonable. Our countries'law belongs to the Civil Law system and should legislate with the idea of formal rationality. So when introduce the implied anticipatory breach of contract, we should consider whether it will be fit for the whole law system, bring out logically confusion, break the harmony and integration of the whole system, and whether we have rules in our existing system to solve the same problem which it aims at. Searching our law, we find that our Contract Law has provided defense right of simultaneous performance and counterargument right of plea against the advance performance, which can cooperate with the unsafe right of defense to supply overall legal remedy solving the problems that the implied anticipatory breach of contract aims at. Further more, the different adaptations of law of the two rules determine the fact that they cannot survive in each other's law system, and this works in our country that belongs to the Civil Law. Different ideas of legislation determine that the implied anticipatory breach of contract can not survive in our law. Therefore, it is not necessary to introduce the implied anticipatory breach of contract.In a word, the model of legislation, which has the implied anticipatory breach of contract and the unsafe right of defense coexisted, is unreasonable. The implied anticipatory breach of contract can not depart from its own special adaptation of law to survive in our law system. Therefore we should revise the related articles and reject the implied anticipatory breach of contract.