Research On The Unsafe Right Of Defense System

The unsafe right of defense system is a important system in the aspects of the contract in the civil law countries, the legislative purpose is to protect the interests of the parties of contract expectations right, the legislative purpose is to protect the transaction security and ordering, in guard against the contract for the appearance of the stage to perform before the performance of the risk and protect the interests of the party in breach has played an important role. Our country 《contract law of the People’s Republic of China 》(hereinafter referred to as the 《contract law 》) in the inherited discomposure deraignment system on the basis of the basic system and framework, also introduced the anticipatory breach system in Anglo-American law system. So that the 《contract law》 has just issued namely by scholars of the two kinds of system in the different legal systems widely discussed, some scholars think that should be adopted and the practice more closely linked, the anticipatory breach system abandon the right of defense system. About unrest defense system, academic research, but most existing research lack of systematic, nor to the unease defense system with reasonable boundary points, the anticipatory breach system caused unease defense system in the concrete application of the distress, this article will focus on our country 《contract law》, start from the basic theory of the unease defense system, by comparing the differences and similarities between two systems, to our country "contract law" the relevant provisions of the thorough analysis, and puts forward the system of the two conflict, the Suggestions of perfecting our country’s unease defense system.The article is divided into the introduction and three parts. In the introduction, clearly put forward the current problems existing in the legal system, and the purpose of the study. Then in the first part of the article, starting from the basic theory of the unease right of defense system, compares the unease right of defense system, comprehensive introduction, think the unease right of defense system has an irreplaceable role in the civil law system, and the nature of the unease right of defense system in China was analyzed, and puts forward the disturbed defense system of the second power in our country, points out the unease right of defense system is the development of traditional unease right of defense system. The unease right of defense system was introduced into our country 《contract law》 and at the same time and the anticipatory breach system, in view of the two are similar in some aspects of the function, thus has caused the relationship between the two fuzzy, make both on the applicable conflicts, thus weakening the right relief efforts on the parties. So the second part of this article is unease defense system and comparative analysis, the anticipatory breach system in this part analyzes the anticipatory breach system in the Anglo-American law system, points out the misunderstanding between the anticipatory breach system in our country, puts forward the anticipatory breach system including expected refused to perform as expected is unable to perform, expected refused to include express expected refused to perform with implied expected refused to perform. Of two systems from the general to the specific content, from various angles, have made detailed analysis and comparison, thus systematically, clearly points out the two systems in the composition, function and value pursuit difference. For the improvement of the system of plea of unease suggested in the paper, laid a theoretical foundation. In the third part of the article, the author try to "contract law" of the two systems in the conflict of the amended, solve the problem of the conflict between two systems, and puts forward some Suggestions to perfect unease defense system in China, in order to unease defense system boundary points with thoroughly anticipatory breach system, perfect the defense system, the make the nervous system of defense system to operate more effectively, more can play the function, the more fully protect the lawful rights and interests of the parties in the commodity trading activities. Realize the legislative intent. In the final conclusion part, the article writing a general review, further clarify the writing ideas and writing purpose, also points out the writing process and the insufficiencies of the article, and the need to improve in the future.