Study On The Unsafe Right Of Defense And Anticipatory Breach Of Contract In China's "Contract Law"

In face of such a modern society that varies from minute to minute, for those non-instant contracts, from the effective establishment to the arrival of performance period, there may be many unpredictable new changes, which lead to impossibility or difficulty to fulfill the contract. As two legal systems set for the protection of creditor's rights, the unsafe right of defense and anticipatory breach of contract play decisive roles in the continental law system and Anglo-American law system respectively.Although our country belongs to continental law system, China's "contract law" issued in 1999 creatively absorbs the essence of unsafe right of defense in the continental law system and the anticipatory breach of contract in Anglo-American law system, and provides these two kinds of regulations which belong to different legal systems in one law. Therefore it formed rules of anticipatory breach with Chinese characteristics. It's favorable for prevent contract risk, ensure trade safety and protect interests of the parties. But since the contract law came into effect, the controversy has never stopped.In order to clarify the unsafe right of defense and anticipatory breach in China's "contract law", the author will firstly analyze the concept, the theoretic value and the development of the two regulations, and meanwhile, give a summary on their conditions of application and corresponding remedy rules. Secondly, give a research on the similarities and differences of the two kinds mainly by the method of comparison, and point out that as belong to two different legal systems and have succession of different legal traditions, although have some similar, the two actually have qualitative distinction in the value idea, system, form and other aspects. Then, combined with the "contract law", give an evaluation on the rationality of the system arrangement. Lastly, on base of analyzing the focus of arguments, the author point out the inadequate of the relevant provisions in China's "contract law" and make his own suggestions on improvement. That is, by adjusting the system of unsafe right of defense itself and other relevant rules as Impossibility of Performance, Repudiation in continental law system, Legal Rescission of Contracts and so on, China's "contract law" can overcome most of the defects in Unsafe Right of Defense from inside and outside. Through the improvement of legislation and the adoption of the reasonable factors in the system of anticipatory breach, it can return to civil law tradition, put both two kinds of systems into full play and avoid the conflicts and contradictions at the same time. So that we can further protect the interests of both parties, improve transaction security and efficiency, and avoid the confusion of understanding and usage in the legal practice.