Analysis On The Unsafe Right Of Defense

There are three passive and defensive rights of defense in China’s "Contract Law" currently, they are defense right of simultaneous performance, defense right of against advance performance, and the unsafe right of defense. The unsafe right of defense, which especially has deeply historical origin of legal system, is easily confused with other rules because it plays a major role not only in the continental law system, also in Anglo-American law system, as the similar regulations can be found easily.The existing unsafe right of defense, which has the creative and Chinese characteristics, presents some unexpected confusions in judicial practice:how to identify, how to apply correctly, or no details about some provisions. In addition, as we China referred to the relevant provisions of "United Nations Convention on Contracts of International Sales of Goods (CISG)" when we absorbed the unsafe right of defense, so some improper details come out now due to the contradiction with anticipatory breach, so that the academic members pay more attention to the contention in the recent years.In order to solve the above-mentioned problems, this article firstly gives the brief introduction for unsafe right of defense and CISG, then focused on the cases occurred in the reality to find out the weaknesses of unsafe right of defense under our legal system, to inquire the duplicate rules with it, so that can protect the parties correctly. Finally, giving the personal attitudes regarding the legal force of unsafe right of defense, and the recommendations to prefect it according to the CISG and UCC. Then we can make the unsafe right of defense perfected and more importance can be required in the market economy, which is based on good faith principle and fair principle.