Analysis Of The Bilateral Breach And Its Responsibility

There is not a concept of the Bilateral breach in current laws or regulations, which has just been explained abstractly in article 120 in Contract Law. Because of simple contents and lack of interpretation, this article is commonly wrongly used in practice. Bilateral breach is one kind of defaults resulting from defective performances of contractual obligation, with which both of the two parties have no exemptions. It is different from Unilateral breach in Contract Law.The scholars have not reached consensus on the idea of writing the Bilateral breach into Contract Law in our country. While some scholars have published their thesis to disagree with its existence, there are still many scholars supporting Bilateral breach to be embedded in Contract Law. This paper agrees with the latter, because whether it is recognized from any angle, theoretically or empirically, the Bilateral breach is more favorable to safeguard the interests of two parties and maintain peaceful economic development. From a theoretical sense, it helps to improve legal system, makes it easier to comprehend default system and gives them a better understanding of the systems of contributory negligence, derogation and defense right of performance through distinguishing the differences among the Bilateral breach and other systems. From a practical point of view, if judges and lawyers study the Bilateral breach further, they can deal with contractual disputes more flexibly and safeguard the rights and interests of the two parties better. The Bilateral breach study also helps to form the dispute settlement mechanism, improve litigation efficiency and protect social justice.This article illustrates the Bilateral breach from four parts. Firstly, it points out the debate of the theory among scholars and briefly introduces their pinions. Then it transfers our focus to put forward that the Bilateral breach should not be recognized as an independent legal system form the default system, but as a system belonging to the default system.Secondly, it focuses on the constituent elements of the Bilateral breach, giving a hand to get more about the Bilateral breach from the aspects of the same bilateral contract, behavior of the Bilateral breach, parties without Defense Right of Performance and improper use of Defense Right of Performance.Thirdly, it is mainly introduced the differences among Bilateral breach, Defense Right of Performance and Derogation. Then, referring to practical cases, it makes those systems to be applied properly.Fourthly, it introduces responsibility bearing of the Bilateral breach, mainly including the rules of liability, exemptions, and the rules of responsibility.