| Bilateral contract to fulfill the right of defense against fulfill the request the right to the legal system, our country "contract law" to learn from the civil law, common law, the United Nations International Sale of Goods Convention on Contracts for International Commercial Contracts General Principles of contract performance on the basis of the legislative experience of the right of defense, in Article66to Article69of the Act provides for the fulfillment of fulfill the right of defense, to fulfill the right of defense and disturbed defenses, thus forming a bilateral contract with Chinese characteristics the defense of the right system. Correct understanding and the exercise of the right of defense of these three can not only protect the security of transactions, maintenance of the observant party interests and the social credit, and to distinguish between the breach of contract, and timely resolution of contractual disputes. In trial practice, whether it is the staff of the contracting parties or the trial court’s understanding of the performance of the contract right of defense there are some problems. Therefore, the study of the right of defense in the Contract Performance of great significance not only for the Civil and Commercial Law theory and judicial practice, this article with comparative studies and civil law method of hermeneutics, the meaning of the right of defense, as well as the performance of the contract types of right of defense and its conditions of application made to a preliminary overview, and through bilateral contract to fulfill the right of defense to analyze the defects in the judicial practice, and further proposed the system of defenses in the performance of the Perfection of bilateral contract recommendations. Of Competency is still shallow, so expect to be able to start a discussion.This article is divided into three main parts:The first part is the basis of the full text, first of all start from the concept of the right of defense to be defined as the exercise of its rights holders to request the right, obligations enjoyed by the denial of their right to request, as a premise for further research; and thus the performance of the contract defended the right type of overview, through the same time fulfill the right of defense, and fulfill the right of defense and the generation of unstable defense discusses further the concept and conditions of use, and finally, a clear bilateral contract to fulfill the right of defense. Part II of this defect in civil law countries and common law countries the legal system on the basis of comparison, analysis of China’s Contract Law provisions exist on the right of defense. That the "Contract Law" Article66provides for the same time to fulfill the right of defense, but there are unreasonable. Mainly to separate independent legal provisions in Article66and Article 6017of the "Contract Law", at the same time fulfill the scope of application of the right of defense is too narrow, while fulfilling the right of defense in the various breach of contract form how to properly exercise and other issues.The third part is a bilateral contract to fulfill the right of defense in the perfect proposal. That the merger of thae Contract Law Article66and Article67of the first should a provision is necessary to fulfill his right of defense after the establishment of a separate; Second, the provisions generally applicable to the case at the same time fulfill the right of defense; Third, in the procedural law, perfect matching rules, while fulfilling the right of defense and are better able to play at the same time fulfill the role of the right of defense. |
