The Standards Of Judicial Judgment That Constitute The Elements Of The Unrest Defense Right

The defied right of defense is an important contractual defense system,plays an important role in implementing the principles of fairness,maintaining transaction security,and reducing the risk of rights holders.There are five elements of defied right of defense.The first element is based on an effective dual-service contract,excluding invalid,single-service contract.Second,the contract has the performance of the order,excluding the performance of the contract at the same time.Third,after the implementation of the existence of one party is lost,may lose the ability to fulfill the situation,to prevent the abuse of the right to apologize.Fourth,the exercise of the right period for the contract after the entry into force,the first party to fulfill the obligations before the completion of payment.The fifth is the right to claim the parties did not provide security,to pay the price.After the two elements in the judicial practice easy to judge,the controversy is not the first three constituent elements of the criteria are worth studying.To determine whether the contract is effective should focus on review of the contract is in violation of laws and administrative regulations of the mandatory provisions,pay attention to distinguish between the contract itself,the contract obligations in violation of mandatory provisions of the situation.In practice,the vast majority of commercial contracts are clear the order of compliance,in the case of unknown agreement,the performance criteria for the referee should be strictly grasp,carefully determine the order of performance of the contract.After the implementation of the obligations of a party whether there is loss,may lose the ability to perform the situation,is the focus of judicial standards and difficulties.Chinese referee’s recent referee standards tend to be conservative,reflecting the judicial authorities focus on promoting the normal conduct of the transaction,to prevent the abuse of the defenses of the judicial policy.In the future judicial practice,the referee should grasp the trend of market economy to adjust the judicial policy to achieve the maintenance of transaction security and promote the balance between the freedom of trade.