Two-dimensional Method For Legal Risk Management:on Unsafe Right Of Counterplea

Risk management has been applied to the discipline of law, forming a new fieldthe legal risk management. Methods for legal risk management belong to a kind ofinterdisciplinary methodology, important and new. Its research is still in its infancy. Itis necessary to explore it with the combination of international perspective and fields’expansion, proposing the two-dimensional method for legal risk management. Thismethod takes subject of right and relevant legal institutions as subjects ofmanagement, includes four management stages, i.e., context identification, risksidentification, risks evaluation, risks treatment, and is circulatory, dynamic and openmethodology for legal risk management.Unsafe right of counterplea is an important right of defense in the performanceof bilateral contract in civil field. As with protecting interests of the former performerand embodies fairness and efficiency of law, it is of great significance. But due tofuzziness and uncertainty of legal norm, there are lots of problems in practice.Scholars have given full attention and judicial interpretation also has not maken theurgent problems clear. The author intends to use the analytical methodologytwo-dimensional method for legal risk management and focuses on exploring somemain legal risk in the performance of unsafe right of counterplea to be helpful to theapplication and improvement of this system.The two-dimensional method for legal risk management provides exploration ofexercising unsafe right of counterplea with new research perspective. The papersuccessively focuses on risk of applying burden of proof and reasonable periodtogether with risk caused by right of opposition and system concurrence in theperformance of unsafe right of counterplea. Firstly, the former performer is faced withmany obstacles to quoting and proof is harshly required to be “exact”, bringing legalrisk in the application of burden of proof. The former performer needs to objectivelymeasure and reasonably decide whether to suspend performance; relevant law organsshould make the meaning of “exact” clear and require the latter performer to providerebuttal evidence after the former performer’s grasp of preliminary evidence. Secondly, the former performer can hardly measure the length of reasonable periodand law has not maken “reasonable” clear, bringing legal risk in the application ofreasonable period. The former performer should cautiously wait a not-too-short periodconsidering the environment of contract performance; judicial interpretation mayadopt the legislative construction of combination of compromised period and legalperiod. Thirdly, the former performer may wrongfully exercise right of rescission ofcontract and right of opposition is against to it, bringing legal risk caused by right ofopposition. The former performer is supposed to carefully consider factorsinfluencing the excising of right of rescission to avoid hasty exercitation; judicialinterpretation should conform right of opposition. Fourthly, the former performer isfaced with obstacles to selecting between the performance of unsafe right ofcounterplea and anticipatory breach of contract and these two systems are ofconcurrence, bringing legal risk caused by system concurrence. The former performershould properly select considering system analysis and performance environment;judicial interpretation consequently should conform that unsafe right of counterpleaand anticipatory breach of contract are independent and competing systems andrestrict this right of election.