The Bilateral Breach

Bilateral breach is a controversial issue in the legal and theory field in China, andthere are different views about the value of such legal system. Scholars represented byProfessor Liang Huixing, consider that bilateral breach has its questions both intheory and practice. As the Contract law allows concurrent performing ofcounterargument, one party has the right to refuse to perform corresponding contratobligation when the other party fails to fulfill his/her obligation, this is a legitimateexercise of the right of defense, instead of the breach of contract. But scholarsrepresented by Professor Wang Liming believe that the defaults will not be eliminatedwith the performance of right of defense.On the contrary, the phenomenon of whichstill exists.There has been no definite conclusion in the theory circle for a long time.To this end, the author has searched the cases judged by court according to thebilateral breach in the judicial practice in recent years, and then made an analysis andsummary of these cases. It is concluded that there is a large number of the misuse ofbilateral breach, which could be managed by fault offset and mitigation rule. As to thecontroversial bilateral breach in theory, the author thinks that according to the analysisof cases,such bilateral breach could be resolved by general liability for breach ofcontract, so bilateral breach system is not necessary.The article is divided into three parts?Chapter1,making a brief introduction to the concept of the default system andmode of responsibility?and compare bilateral breach with other systems to understand the connotation of the default system.Chapter2,analysis the situation of misuse of bilateral breach in the practice, andaccording to the different misused situation which can be applicable to other system,Itcan be roughly distinguished as three different types:the system of negligence offsettype, impairment rules system type, as well as the applicable unilaterally default casetype.Through the analysis of the above three kinds of case type, it can be seen in thejudicial practice in our country, there are a lot of the misuse of the defaultphenomenon, but in fact these cases can also be resolved by other systems.The third part is an analysis of a real case of bilateral breach. Of course, Thereindeed exists bilateral breach in the judicial practice,for example, when each party tothe contract breach the duty of contract which has no indivisibility andconsideration, which can not be explained by the right of defense, the parties mayestablish default.Another example of bilateral breach is the violation of paymentobligation,collateral obligation which establish bilateral breach.In this case, we canattain the same legal effect as bilateral breach according to the existing institution.Through the case analysis in this three-parts, we can see that due to the presenceof bilateral breach, there is a lot of misuse in judicial practice situations, but from theanalysis of real case of bilateral breach, general breach of contract law rules can alsobe applied to such situations, therefore, the bilateral breach can be ruled out ofthe field of contract law.