On Disturbed Right Of Defense

In the contract of bearing the obligation each other, having performed his obligation ,the part who should first perform obligation can meet the danger that the other party can not pay correspondingly . In order to protect the trust benefits of the first performance part .Continental Law Legal System civil law constructed the Unsafe right of Defense system: the first performance party can refuse performancing his contract obligation and not bear the responsibility of deferred performance if the other party'property obviously decreases enough to lose performance capablity and the other party does not offer guarantee after making the contract.Unsafe right of Defense,originating in Civil Law of German,is a significant institution of the civil law of Continental Law Legal System,and greatly influences on preventing contract frauds and protection of legal benefits of the part who should first perform obligation and realizes fair principle of the law. The theory have greatly influnced on many nation's contract law.Distinct nations'legislation about Unsafe right of Defense have nothing in common with each other. China constructed the Unsafe right of Defense ,enlarged its applying range and developed it in contract law in 1999,but did not concern whether the party can have the Unsafe right of Defense when he was preparing his performance and what right the party should have beacause of the unsafe case when he was preparing his performance before the other party performing and so on..In the period of preparing performance,the unsafe party can suspend performance preparation freely and not break the contract. Yet ,whether the party owns the Unsafe right of Defense or not determinates whether he should be remitted the responsibility of deferred performance because of his suspending the perfomance preparing or notEffectiveness is a significant value of law in jurisprudence. When unsafe case is in fact,the party exercises immediately his Unsafe right of Defense profits to improve the effectiveness of social resource and reduce social cost. So any party of the contract should be allowed to suspend the performance of obligation and preparation and don't bear the responsibility of deferred performance when he feels unsafe. Unsafe case is removed when the orther party offers guarantee or reinstatement performance capability,then the unsafe party of suspending performance preparation should own the right to postponereasonably his performance and not perform his contract obligation immediately. Legal standing should be supplyyed for the form and duration of the orther party's guarantee and not remove agreement of both parts of course. The author elaborates the concept of the Unsafe right of Defense and compares distinct nations' system in the first place,then researchs into the questions above-mentioned emphasizing on applyying conditions,exercising,legal effect of the Unsafe right of Defense and comparation with Anticipatory Breach and so on by examining internal and external legal theorists'standpoints,Contract Law and practice.