Anticipatory Breach Of Contract In The Form Of Classification And Disturbed Right Of Defense Of The Comparison

The doctrine of anticipatory breach of contract, which was originated from judicial precedent of England, is a special system of common law. It is adapted to the development of commercial economic, can help protect against loses of the parties of contract, balance the rights of both parties, and hereby realize efficiency and justice of judicature. Thus, The doctrine of anticipatory breach of contract was not only adopted by other countries of common law system but also accepted by some universal convention like CISG. It has been developed to be quite mature and complete through more than one hundred years. The Chinese Contract Law also has the provisions concerning the doctrine of anticipatory breach of contract.In traditional civil law system, we can not find the doctrine of anticipatory breach of contract. But there is a similar regulation called the right of defense of anxious. As a conventional system of civil law system, the right of defense anxious has a long history. It has functions of preventing fraud and securing the safety of trades. Based of civil law system, our country's legislation absorbed the right of defense of anxious.In order to take advantages of two kinds of regulations, our country's legislation provides both of them in Contract Law. But it has some apparent faults in the legislation and practice.This thesis holds that there two factors lead to the fault:First, the scholars'the opinions about classification of anticipatory breach of contract are not rational in our country. Second, the scholars of our country had not realize the essential differences between anticipatory breach of contract and the right of defense of anxious anticipatory breach of contract.Therefore, this thesis is going to give some opinions concerning the classification of anticipatory breach of contract and the relationship between anticipatory breach of contract and the right of defense of anxious. Then this thesis will point out the defects in our legislation and give some advices of amendment.This thesis has four parts. The first part is the introduction of anticipatory breach of contract and the right of defense of anxious, it introduced the origination and the development of this two regulation and then illustrated the conception and features of them. The second part made a comprehensive approach to the classification. The third part mainly explained the essential differences between anticipatory breach of contract and the right of defense of anxious, including the comparison between two kinds of anticipatory breach of contract and the right of defense of anxious. The fourth part pointed out the defects in our country's Contract Law and give some suggestions for the improvement of legislation.