On The Mutual Paying Litigation

Civil litigation is the complex product of civil substantive law and civil procedure law, and it has been recognized by the majority of civil law scholar.There is a interdependent and mutual reinforcing side between civil substantive law and civil procedure law,and it mutually promotes their development.The defense right of simultaneous performance is the concept of contract law,generally exist in bilateral contract,and it leads to the mutual paying litigation,which is a special form of paying litigation.Article 66 of People’s Republic of China Contract Law(hereinafter referred to as contract law)have formulated the defense right of simultaneous performance,but Civil Procedure Law of People’s Republic of China(hereinafter referred to as civil procedure law and its judicial interpretation have not formulated it clearly,which leads to the detached between substantive law and procedural law,and implement of substantive law depends on the judge’s discretion,lacking of legal regulation.In this regard,the relevant provisions of Germany, Japan and Taiwan are more detailed,including exploring in the doctrinal.China mainland scholars does not lacking in research on the defense right of simultaneous performance in the contract law,but lacking in thorough research on the mutual paying litigation in the civil procedure law.A direct result of this defect in practice during the proceedings for the application of the defense right of simultaneous performance is it does not reach the desired effect,and protect the interests of creditors and debtors unbalancedly in litigation phase and the implementation phase.There is not enough information back to the judicial application of substantive law from procedural law, and it also affect the further development of substantive law.This is mainly due to itself uniqueness of the mutual paying litigation,some deviate for general paying litigation and civil litigation jurisprudence,making it easy to give the impression that it does not comply with the debate doctrine of civil procedure and institutional in continental legal system,and because of the presence of other ways, such as a counterclaim or another complaints, making it easy to give the impression that the question point of its necessary.However, through thorough research to treat paying litigation,we will find that it not only did not deviate from debate doctrine, but also has some advantages,including fitting to the litigation regarding the economic principles and the concept of one-time settlement of disputes.This paper is divided into three parts,the first chapter introduces the legal basis of the mutual paying litigation,analysising respectively from related concepts,applicable scope and justification of the mutual paying litigation.Because there are some scholars questioning the applicable of the mutual paying litigation,this chapter discourse these issues focusing on refute questioned and discussed from a positive way.The second chapter analysis procedural issues of the mutual paying litigation,including nature and basis of the mutual paying litigation,effect of the defense right of simultaneous performance,reflect of judge powers,sentence main body structure and appeals issues.This chapter focuses on solving problems that have been encountered or may arise hereafter,discussing from the perspective of theory and practice.The third chapter is a discussion about specific application,basing on the view that through between substantive law and procedural law and promote their interaction,and start from the research status of contract law.this paper emphasize the improvements of procedural systems and process,which combined with the typical case from practice,and pointed out that the judicial application of specific ways.Generally speaking,I believe that,the interaction between substantive law and procedural law, is conducive to their common development,on this basis,judicial application of the mutual paying litigation have many benefits,and conform to the trend of judicial reform.