On The Judgment Of Simultaneous Performance

The civil litigation process is regarded as the field of the combination of civil substantive law and civil procedure law.Therefore,the design of civil litigation system must consider the convergence of substantive law and procedural law.While ignoring the substantive law provides that the litigation system designed from the point of view of the litigation law may make the substantive law become "the text",and the purpose of the litigation procedure itself can not be realized.The judgment of simultaneous performance in this article is the result of the convergence of substantive law and procedural law,its research is inseparable from the analysis of the right defense right of simultaneous performance in substantive rights.In particular terms,the judgment of simultaneous performance is the result of the exercise of the right of plea by the party(the defendant)in the payment of the action.The judgment of simultaneous performance in nature is a result that the court recognized the defense right of simultaneous.Functionally,it can solve the dispute at one time,reduce the cost of litigation,and can achieve the defense right of simultaneous performance in the substantive law "to avoid credit grant" and "increase the implementation of incentives" function.Outside the domain,Germany through the legislation expressly stipulates the judgment of simultaneous performance,and our Taiwan region and Japan through the jurisprudence establishes the judgment of simultaneous performance.Unfortunately the defense right of simultaneous performance in the substantive law of our country and litigation decision-making is largely fragmented:from the legislative point of view,the judgment of simultaneous performance is not included in the legislative provisions;in judicial practice,the court effectively exercise the judgment about the defense right of simultaneous performance is also very unanimous,while the verdict is only a very small number of these judgments.This paper analyzes the judgment of simultaneous performance from the angle of the litigation law.Including the introduction,this article has five parts:The introduction part expresses firstly the necessity of the establishment the judgment of simultaneous and its theoretical and practical significance.Secondly,the part is about research situation and gap between the inside and outside of the judgment of simultaneous performance.Finally,the research emphasis and research method are introduced.The first part is a basic overview of the judgment of simultaneous performance.This part first is about the recognition of the judgment simultaneous performance,and it is clear that it is a conditional judgment.Secondly,it analyzes the basic law foundation of the judgment simultaneous performance and its function.The second part is an analysis of the status quo of judging the defense right of simultaneous performance.On the one hand,the four kinds of judgment modes,including the judgment of simultaneous performance,are introduced through the case form,and the advantages and disadvantages of each judgment mode are analyzed.On the other hand,it is an analysis of the doubts that the judgment is facing in China.The third part is the investigation and reference of the judgment of simultaneous performance.In this part,the first is to have a profound theoretical basis of Germany,Japan and Taiwan with the implementation of the judgment of simultaneous performance;followed by outside the study on the basis of some conclusions on the point of view;the final analysis is the reference of the judgment of simultaneous performance in our country.The fourth part is only an analysis of some important issues in the judgment of simultaneous performance.The first is about the relationship between the judgment of simultaneous performance and the right of the judge;Scondly,author anaiysis who wins the lawsuit;The third is about appeal of the judgment of simultaneous performance and the appeal of the scope of the effectiveness;and finally,it is about the implementation of the the judgment of simultaneous performance,including the effectiveness of the attached condition in the execution of the procedure,the formal examination in progress,and the duration of the application.