Contract Interim Relief System Study

How should laws give remedies to the aggrieved party in case of nonperformance of one party (renunciation and impossibility of performance) in medium-term of their contract, which is from effective date to the deadline for performance of the contract? There are two ways of remedy available at present, one is the institution of anticipatory breach of contract in Anglo-American law system, and the other is the institution of the right to plea of unease and the institution of contract cancellation in Continental law system. But the two kinds of institutions coexist in the contract law of China. The question is why should our country put the two together while issues could be settled by either of them as in countries of Anglo-American or Continental law system? Can both of them coexist? And which of them actually should be applied?This article probes into historical sourcing of institutions of medium-term remedies of contract in Anglo-American and Continental law systems. An institution of anticipatory breach of contract is chosen in Anglo-American law system, while an institution of the right to plea of unease is adopted in Continental law system. It is found that each kind of the institutions is built up on its own political and economical background. It also makes a comparative analysis on the scope and requirements of application, method of remedy, and values of law. It is found that although both of them are used to regulate contractual behaviors and to enhance the safety of transaction, obvious differences still exist. For example, there is no requirement for sequential order of performance in the institution of anticipatory breach of contract. It is applicable to both cases of renunciation and impossibility of performance. And there is the right of cancellation given to the party of right to plea of unease traditionally. It is also lay stress on the benefit value of law. While the institution of the right to plea of unease requires sequential order of performance. It is just applicable to the case of impossibility of performance. There is noright of cancellation given to the party of right to plea of unease traditionally. And finally it attaches importance to the safety value of law.The contract law of China stipulates both institutions of anticipatory breach of contract and the right to plea of unease. This reflects the latest advancement of civil theory and judicial practice in China. The article puts forward, through reviewing and analyzing the specific provisions of the contract law of China, that the contract of law of China adopts the legislation style of integration of both the institutions. But this kind of style demonstrates that the legislative technique lags behind and that the content of legislation is empty and simplified. The linkage between the two institutions is not properly dealt with. The lack of harmony of them causes certain troubles for judicial practice, e.g. overlaps and conflicts in specific provisions and in application of the two institutions.The article makes a comparative analysis on the origin background, concrete provisions, scope of application, and value of law between the two law systems, as well as specific articles in the contract law of China, expounds and proves that the institutions of anticipatory breach of contract and the right to plea of unease can coexist in theory and in legislative practice. It points out that the institution of anticipatory breach of contract should be applied in case of renunciation (express anticipatory breach of contract), while the institution of the right to plea of unease applied in case of impossibility of performance (implied anticipatory breach of contract). An amendment advice is raised towards articles 68, 69, 94, and 108 of the contract law of China based on this conclusion.