The Integration Of Anticipatory Breach Of Contract And The Unsafe Right Of Defense System In China

According to the traditional theory of contract law, breach of contract refers to a contract after the expiry of the period; one of the parties fails to fulfill contractual obligation and responsibility of state. Before the expiration date, the two sides had no responsibility to perform the payment obligation. If one party has clearly expressed that he will not perform his obligations under the contract before the expiring date, this risk behavior will bring the contract risk to the other party. In order to protect the safety of the contract and resolve the dangerous circumstances before the contract expiring date, the Anglo-American law system established the system of anticipatory breach of contract, and the continental law system established the unsafe right of defense system. But there are large differences between these two kinds of system in the constitution, application effect etc.The contract law of our country in the68th and69th has established the unsafe right of defense system, and in108th and94th of second established the system of anticipatory breach of contract. To fix two same function systems in one same law, on one side the law seems too interminable and contradictory. On the other side, it is different with the foreign law in the form and practical of the legislation. Although the contract law of our country for these two contents were expanded and improved, the effect is not ideal; confusion and conflict in the judicial application still exist.Through the method of comparative analysis, firstly, compares the unsafe right of defense and the anticipatory breach system of China’s contract law with the foreign law, analysis the difference between the anticipatory breach of contract and the unsafe right of defense system, including the scope of application, legal reasons, judgment standard and the interests of the parties’ arrangement etc. Secondly, based on the analysis for the unsafe right of defense in continental law and the value expected for right in Anglo-American law, we intended to find the right way of reconstructing the expected default. Finally, we try to be reconstructed the anticipatory breach of contract system with the methods for comparative case study, and then detailed analysis the different effects in judicial application, in order to be able to play its due role in judicial practice.