A Comparative Study Of Unsafe Right Of Defense And Anticipatory Breach

Unsafe right of defense of continental law legal system is an important institutionof the contract law, the anticipatory breach is an unique system of common lawcountries, the two systems are belong to the different legal system, and in nature, theapplicable condition, the relief way are different, but both in the purpose of legislation,principle, function has a similar, both in balance the interests of maintenance, protecttrade security and order and so on are plays an important role. In the Chinese contractlaw, unsafe right of defense based on traditional theory of civil law countries at thesame time, also introduced anticipatory breach of contract system in common lawcountries, in the legislative intent is to hope to be able to adopt two law system ofstrengths, but imperfect legislation make two system in the contract law borrowsmany defects, It is necessary to have a comparative study for fully understand andimproves the two system from different legal system in the contract law.This article adopted the history, comparative analysis and other methods, tounsafe right of defense and anticipatory breach concept, origin, the nature, the legalvalue to be discussed, and to compare the unassured pleadings and anticipatory breachof contract the same and different, then comparative analysis on the Chinese contractlaw on the two kinds of the characteristic of the system and the insufficiency, finallyputs forward relevant improvement suggestions. The paper is divided into thefollowing four parts:The first part describes the general theory of the unsafe right of defense andanticipatory breach system, comprehensive analysis of their respective two systemconcept, legal origin, legal nature, constitutive requirements and so on, in order tohave a more complete understanding about the two systems.The second part comparative analysis the traditional civil law system of unsaferight of defense and common law of anticipatory breach system, described thesimilarities and differences of unsafe right of defense and anticipatory breach, fromthe Angle of comparison to understanding to the two systems.The third part the comparative analysis on the Chinese contract law unsafe rightof defense and anticipatory breach system, made comments in the characteristic of thesystem, insufficient to the contract law of unsafe right of defense and anticipatory breach, from the Angle of comparison to understanding the Chinese contract lawabout the two system rules.The fourth part explores and puts forward improvement suggestions to theChinese contract law unsafe right of defense and anticipatory breach system. Firstanalysis of the domestic research on Chinese contract law of unassured pleadings andanticipatory breach of contract, and then from the legislation and judicialinterpretation point of view, this paper put forward the improvement suggestion forthe two systems.