Study On The Effectiveness Of The Defense Right Of Simultaneous Performance

The defense right of simultaneous performance is one of the bilateral contract performance,It has important function that to encourage trading and balance the interests between the parties. This paper is split into four parts to study the effectiveness of the defense right of simultaneous performance with method of systematization analysis and example analysis.The first part of this paper mainly discusses the fundamental theories of the defense right of simultaneous performance. This part mainly analysis the nature of simultaneous performance in bilateral contract by finding the origin and development of the defense right of simultaneous performance. And under the system of civil right of defense and the right of defense of contract performance this part analysis the importance and uniqueness of the defense right of simultaneous performance. The defense right of simultaneous performance is not an independent system of the contract, Study it inevitably involves the civil right of defense and the right of defense of the contract, under the two systems, the author mainly highlights the uniqueness of the defense right of simultaneous performance.The second part of this paper mainly discusses the effectiveness rules. The effectiveness of this defense right is split into noumenal effectiveness and accompanying effectiveness. Noumenal effectiveness mainly manifested in refusing to claim, Accompanying effectiveness covers a lot of ground. The limitation on the offset, the impact on the performance of the delay, and the influence on prescription as well as breaching of contract are the content of accompanying effectiveness.The third part of this paper mainly discusses "the nature of must be advocated" of this defense right. In the author’s opinion,he think that not only the noumenal effectiveness but also the accompanying effectiveness shall be under the clear claims by the two parties can take effect."The nature of must be advocated" of the defense right of simultaneous performance ensures its attribute of right, which distributes the option of interests to both parties. This approach can reveal the charm of private law autonomy. In this part of the paper, the author mainly discusses "the nature of must be advocated" on the accompanying effectiveness. On the one hand, under all situations of delay of performance which includes delay in performance and delay of acceptance, the accompanying effectiveness of this defense right shall be under the clear claims by the two parties can take effect. On the other hand, from the nature of the offset and the relevant provisions of "international trading contract general rule "and" principles of European contract law" to demonstrates that creditor’s rights which attached to this defense right also can be used as an offset active creditor’s rights. So the option of standing for the defense right of simultaneous performance can be given to the parties.The fourth part of this paper mainly discusses the effectiveness of this defense right in the procedure. The effectiveness in the procedure focuses on its claiming and abandoning when in the litigation and the distribution of burden of proof and the judge’s aufklarungsrecht. The defense right of simultaneous performance on China’s contract law is so simple and fuzzy that is lack of operability.The procedural law of our country which is also lack of matching adjudgement system, therefore, draw lessons from" simultaneous performance adjudgement" that is rooted in Germany and Japan necessary. This adjudgement system also can make the defense right of simultaneous performance function of encourage trading and balance the interests between the parties.