The Defense Right Of Simultaneous Performance And Subordinate Obligation

The defense right of simultaneous performance is the most important system in duplex contract.These years,the defense right of simultaneous performance expands intosubordinateobligation and other obligations.The necessity of expanding about defense right of simultaneous performance has gained public recognition.If the subordinate obligation has close relationship with the purpose of the contract,defense right of simultaneous performance can be using in protecting the obligation.The theoreticians' attitude about expansion of defense right of simultaneous performance is different from practitioners'.If someone uses the defense right of simultaneous performance to protect the subordinate obligation,judges would not agree with this point.The purpose of the defense right of simultaneous performance is balancing mutual interests and preventing obvious missing of impartiality in contract.If we deny all the relations of other obligations with main contract obligation,there is indeed the possibility of unfairness in the performance of the contract.The expansion of the defense right of simultaneous performanceis seldom applied to in the current lawsuit practice.In order to get the feasibility of the performance,we could analyze the principle mainly from the perspective of the purpose of the contract,the principle of full implementation of the contract and the principle of autonomy.Otherwise,we also talk about the type of subordinate obligation,which cannot be protected by the defense right of simultaneous performance.Apart from the introduction and conclusion,there are three chapters in this paper:Chapter 1,as an overview section,making a brief introduction to the deficiency of the defense right of simultaneous performance,and the necessity and feasibility of expansion.In order to introduce the expansion of defense right of simultaneous performance in subordinateobligation,we should first discuss the differences between subordinate obligation and collateral obligation.According to the case in the judicial practice,it is effective to analyze different obligations,which include issuing invoices,providing certificates,assisting registration,secrecy and so on.Chapter 2,from the expansion of defense right of simultaneous performance in different subordinate obligations of cases analysis,illustrates the universality of the expansion.And talk about the principle of autonomy and complete performance,and realization of contract objective,analyzes the rationality about the expansion of the defense right of simultaneous performance in the different kinds of subordinate obligation.In order to provide a basis for practical application,I will try to establish the abstract standard of the expansion of defense right of simultaneous performance in different subordinate obligations.Chapter 3,if the expansion of the defense right of simultaneous performance lack of restrictions,it would lead to imbalance between rights and obligations.In order to solve the problem,I will distinguish different kinds of subordinate obligation and puts forward some subordinate obligations which are improper to invoke the defense right of simultaneous performance.For example,the of situations improper to invoke the defense right of simultaneous performance include not in implicated relation,not comply with Good faith principle and the differences form other systems.