A Research On The Right Of Concurrent Performing Counterargument

While fulfilling the right of defense is an important part of the system of the rightof defense of the bilateral contract.Correct understanding and application of thissystem, the people’s court correctly handle the related contract disputes, has a veryimportant significance.Also of great significance in maintaining trading order,guaranteed contracts fully and properly perform and protect the legitimate rights andinterests of the parties.Contract Law, the establishment of the system is consistentwith good faith in civil law principles and the principle of fairness of specificperformance.It requires the parties to the contract transaction process in good faith,heavy promise to actively fulfill their obligations. When interest unbalanced at thesame time fulfill the right of defense can play its role in safeguarding the interests offair between the parties.However, due to various reasons, in China’s legal theory andjudicial practice, understanding and application of controversy while fulfilling theright of defense considerably.Theorists scholars believe that China’s Contract Law atthe same time there are loopholes, Article67no longer necessary to fulfill the right ofdefense system.In judicial practice, the judge in the referee process can not correctlydistinguish the parties to breach of contract, and at the same time fulfill the right ofdefense, leading to many cases of miscarriage of justice.In this context, I believe that it is necessary to clarify these theoretical issues andanswer some confusion in the applicable process,It will make the system value whilefulfilling the right of defense to get the best play. This article will focus on at the sametime fulfill the right of defense "what","why" and "how to do" three angles, detailedexposition is divided into four parts:The first part is from the "What is the point of view of analysis while fulfillingthe right of defense. Were defined while fulfilling the meaning of the right ofdefense.This section is divided into two main small part of the first small part of theelaborate and analyze the concepts and features at the same time to fulfill the right ofdefense. The second small part to fulfill the right of defense and the first to fulfill the right of defense and breach of the relationship between these two concepts betweenthe two sides, so we better grasp at the same time fulfill the right of defense.The second part is at the same time from the point of view on "why" to fulfill theright of defense. This section has two parts, the first small part is introduced at thesame time fulfill generates the base of the right of defense, including bilateral contractimplicated, the principle of good faith and fair principle. It answers why can exerciseat the same time fulfill the right of defense, and when you can exercise at the sametime fulfill the right of defense. Second small part mainly describes the function of thesystem at the same time to fulfill the right of defense. That part is actually answeredwhile fulfilling the value of the existence of the right of defense of the system.The third and fourth part of the discussion from the point of view of "how to do"to fulfill the right of defense.Set forth in the third part which is at the same time fulfill the question of thevalidity of the right of defense. It was divided into two parts, one is the effect on thesubstantive law, the other is the effect on the procedural law. The effect on thesubstantive law mainly refers to the right to refuse to perform, the prohibition of debtcancellation and delay in performance to the exclusion of responsibility. Whichrefused to fulfill the right to the effectiveness of the exercise, and if it does notexercise, you have to take responsibility. The parties, even if no positive behavior, itsdelay in performance, nor does it constitute, and other debt attached to the two sidescan not offset. Effectiveness on the program main parties on how to exercise the rights,as well as how the Court decides such cases.The fourth part is the most important of this article. Set forth in the applicablewhile fulfilling the right of defense. Including applicable conditions and restrictionsthat apply to both small portion. Author while fulfilling each of the constituentelements of the right of defense of the controversial issues are eleven give a response.While the system is in the process of the application, but also prone to abuse of theright, therefore, I believe that should be carried out to fulfill the application of theright of defense at the same time a certain limit.