Study On Unsafe Right Of Defense System

Under the market economy conditions, bilateral contract is the product of therapid development of the market. And bilateral contract entered into after theimplementation is completed within this period of time, situations often hinder thesmooth implementation of the contract, which requires protection of the legal system.The unsafe right of defense is to protect the smooth implementation of transactions,and maintaining fair and safe. As a traditional concept in civil law countries and thesystem of anticipatory breach of the British and American legal systems have similarideas. With the development of market economy, in1999, the law of contractsconcerns the civil law system of unsafe right of defense with British and Americanlegal systems of anticipatory breach, establishing a unique system of unsafe right ofdefense. In the integration process of <The contract law of China>in the twosystems, inevitably there are flaws. And anticipatory breach of contract is a systemin the contract law of our country, to a certain extent, causing the right to defenseand the system of anticipatory breach of competition. Theoretical disputes can easilycause confusion in practice, therefore, the discussion on the system of unsafe right ofdefense, clarifying theoretical controversy, to better guide the judicial practice.This article is to analyze the nature of the unsafe right of defense, by studying thetheoretical definition of the nature of the unsafe right of defense, summarized it is anegative and temporary, with the claim that opposition to the system. In addition, theunsafe right of defense of right of formation belongs to the right of formation. On theunsafe right of defense system legislative origin and value of law, civil law countries--Germany is the unsafe right of defense system of the origin researches itshistorical origin, must from proceed with of continental law system countries. Thisarticle mainly analyze from the unsafe right of defense system in Germany andFrance. The principle of fairness, safety and benefit idea, encourage transactions,contract liability theory is existence value of law of the unsafe right of defensesystem. The legal effect of unsafe right of defense system mainly includes thesuspending time and scope, the right to terminate the contract, compensation fordamages, if the unsafe right of defense including the performance guarantee rightand so on, this paper made answer. The unsafe right of defense exercise part isdiscussed mainly by the first obligation to actively use the unsafe right of defenseissues, after the loss of the ability to perform its obligations, to the extent of obligations of duty of notification, the burden of proof obligations to fulfillobligations. Anticipatory breach of contract and the unsafe right of defense systemcomparative study is the core of this paper, the article from the two case to proceed,introduces the origin of the anticipatory breach of contract and implied anticipatorybreach of contract, then on anticipatory breach of contract and the actual defaultphase comparison angle, discuss the characteristics of anticipatory breach of contract.<The law of contract> of china made strict provisions on the anticipatory breach ofcontract system of responsibility--the rescission of the contract, which differs fromthe countries of Anglo-American law system. In addition, some scholars in thetheoretical circle believe that the <the law of contract>94paragraphs2and108onlyregulate on the Express anticipatory breach of contract system, and not on theimplied contract. Implied default system on the common law reflects on the unsaferight of defense in <The law of contract> of china. This article supports negativeattitude to this viewpoint. Exist In the theoretical circle, some scholar believes thatthe unsafe right of defense and anticipatory breach of contract cannot coexist, thispaper refutes. Compared with the unsafe right of defense system of the traditionalcivil law countries, the unsafe right of defense of our country is used more broadly,the burden of responsibility and obligation to inform more strict, The first obligationright relief way more perfect, on obligation human protection more reasonable andso on. But in our country, the unsafe right of defense also has shortcomings, mainlyincluding that there are conflicts between the unsafe right of defense and anticipatorybreach of contract system, the burden of proof of To fulfill the obligations of peopleis too harsh, on the unsafe right of defense system to certain provisions is tooambiguous. Aimed at these questions, this paper put up perfect suggestions about theunsafe right of defense system, mainly including coordination of the unsafe right ofdefense and anticipatory breach of contract、improvement of the burden of proof、reasonable judgment" appropriate guarantee", exact definition and use about the"reasonable period of time" of providing guarantee, to make clear that the durationcalculation problem of after further execution of the contract.