The Study On The Legal Application Of The Defense Right

Most Civil Law Countries stipulate defense right in the law, which plays animportant role in protect the right of people and the business safety as a significantcomponent of Civil rights system. Borrowed the essence of the Defense rights systemfrom the Civil Law Countries, the Contract Law of the People’s Republic of China(1999) stipulate Defense rights in paragraph68based on the Law of the People’sRepublic of China on Economic Contracts Involving Foreign Invest. The ChineseDefense right system combines the basic theory of the Continental Law with theAnticipatory breach system of the Common Law, and scholars pay high attention on itsince it was introduced in the Contract Law. While most researchers only care aboutthe basic theory, and it is a rare man or woman who pays attention to the practice. Infact, excellent legal system is not just about talk, the application of the system is themost charming side. Although the Defense right system was specified in the law ofthe Civil Law Countries, we should turn our attention to the Court Cases since the lawitself can’t elaborate every problem we may encounter in practice, in other words,people can’t get a comprehensive understanding of the circumstances which Defenseright system will apply through the deduction means. People will realize theapplication of the system in live only after the induction, summary and research aboutthe Court Cases, and finally complete the transformation of "de Jure" to "de Facto".This thesis consists of four chapters. The first chapter consists of two parts, part one, I will combine the achievements the scholars have accomplished withthe statutes of the Civil Law Countries to analyze and summarize the definition,characteristic and the value of the defense right. After that, I will elaborate theapplication of the defense right through the analysis of the cases and the <Guidance>concerning the defense right enacted by the Supreme People’s Court.The second chapter is the critical part of this thesis. I will expound theapplication conditions of the defense right, meanwhile, I will enumerate many casesfor analysis, induction and summarization.The chapter three and four mainly concern the application and legal effects of thedefense right. I will analysis the basis theory through a larger number of the cases,then may the defense right have a correct application in juridical practice.