Disturbed Right Of Defense And Anticipatory Breach

Unsafe right of defense is an important system of modern contract law of the civil law countries,this system stems from German civil law in first,has had the significant influence to many country's contract legislations and practice.The unsafe right of defense system has embodied the law principle sufficiently,such as safety,fairness and efficiency,has been well balanced right and the duty,could make use of the resources effectively,reducing the social loss to the less degree.Judging from reality,unsafe right of defense exercising can prevent contract cheating using contract by lawful means, defend legitimate rights of this side who has good intentions to abide by the contract to honor an agreement and interests and the protection transaction security,protect business safety,promote circulation of commodities and encourage trade.Anticipatory breach of contract,and also called to expect default first, derives from the common law system,which accumulates from the legal precedents.《United Nations International Goods Sale Contract Convention》absorbed the anticipatory breach theory of common law,and this basic has a development,which divide expectation default into fundamental breach and non—fundamental breach.But in civil law system,there is not a complete and unified concept anticipatory breach of contract,which have the similar meanings with anticipatory breach of contract.Though the two are the same on the principles,such as fairness,fame and efficiency,they are different in character,components,relief and applying conditions.Unsafe right of defense and anticipatory breach of contract are established for settlement of the contract danger after it takes effect.《The contract law of china》adopts the concepts of the both legal systems,which inherits the basic framework of civil law and absorbs the anticipatory breach of contract from the common law.Thus,the unsafe right of defense and anticipatory breach of our contract law are different from the "convention", common law system and civil law,What's more,they have not yet reached comprehensively and become a whole system.This paper includes four sections,in order to find the suitable system of our law,which discusses history of unsafe right of defense,compares unsafe right of defense from different country of the civil law,analyzes the shortage of unsafe right of defense on our contract law,meanwhile,states the anticipatory breach of contract's theory,system and value,put forward the suggestion to improve China's contract law from Jurisprudence and economics of law's angle.The first section of this paper expounds the basic theory of unsafe right of defense,compares unsafe right of defense from different countries of the civil law,analyzes advantages and disadvantages of the different countries, tries to find out the differences,and analyzes the nature of unsafe right of defense and value of system entirely on the basis of discussion.The second part expounds the basic theory of anticipatory breach of contract,including concept of anticipatory breach of contract,origin, elements and value.The third portion compares unsafe right of defense with anticipatory breach of contract.There are many differences between the two systems, such as design idea,value and systematic character.This part expounds the different functions of the two systems and points out that they are independent and can not be replaced mutually.The last part bases on our contract law,comments unsafe right of defense and anticipatory breach of contract,finds out the frame of right of defense on our contract law,considers that our right of defense inherits and develops the traditional theory.Our contract law brings in anticipatory breach of contract of common law,which leads to chaos of theory and Judicial practice. Finally,using the "convention" as an example,author puts out the suggestion to improve unsafe right of defense and anticipatory breach of contract on our contract law,hoping to provide the reasonable theory support to the future legislation and judicial interpretation.