Research On The Atypical Counter-argument Outside Of The Bilateral Contract

The paper is to analyze the counter-argument outside of the bilateral contract,which refers to the counter-argument that occurs in the bilateral contract with themain obligations excluded, and the counter-argument outside of the bilateral contracthereabove as well. The atypical counter-argument the paper analysing implies theantagonism between the right of defense and the right of claim outside of theobligations for reciprocal payment against delivery of the bilateral contract, whichintends to balance the interests of both parties and to achieve the fairness and justiceof the law.This paper is divided into four chapters, makes demonstrations on the basis ofthe analysis of typical domestic cases, and draws forth the issues the paper concernedthrough the said analysis and discussion on the controversial point.Chapter Ⅰ: the counter-argument between the main obligation and incidentalobligation. This chapter is consisted of two parts. The first part concerns thecounter-argument between the main benefit obligation and incidental paymentobligation, and the creditor shall have defense right where the debtor fails to performthe incidental payment obligation which is closely related to the fulfillment of thecontract. Meanwhile, the said defense right shall be restricted for preventing the rightcrossing the boundary and abused. The second part is mainly about thecounter-argument between the principal contract and accessory contract, which are independent contracts, and have very close relationship as well. To demonstrate thisinssue, it is necessary to concentrate on the two crucial factors as follows: if theparties express or imply the mutual constraints of the effectiveness of the the principalcontract and accessory contract; to judge the use of the defense right referred to thecredit rating and the performance dispute rating in general according to the type of theprincipal contract and the warranty contract.Chapter Ⅱ: the counter-argument among the partnership contract. The nature ofthe partnership contract is to form the partnership property, not to exchange theproperty, where a partner could not exempt from carrying out the obligation ofcontribution as any other partner fails to perform or perform the obligation ofcontribution improperly.Chapter Ⅲ: the application by analogy of the defense right of simultaneousperformance. Since the feature of atypical counter-argument is imbalance, this chaptertries to discourse if such defenses in law could be applied to the defense right ofsimultaneous performance by analogy, and analysis the applicable conditions, legalfoundation and the overseas legislation of the defense right of simultaneousperformance, in order to guide the understand and apply of the atypicalcounter-argument in practice.Chapter Ⅳ: the counter-argument in the Debtor-creditor-supplier relationship ofthe consumer credit. It emphasises the "break through of the relativity of the right toplea", which is a matured legal institution with a long history in Germany’ s legalsystem of the consumer credit, and analysis the aforementioned institution from theperspective of transplantations of law and juridical practice of China, with the purposeof learning from Germany and improving the legal system of consumer credit act ofChina.