Study On The Defense Right Of Simultaneous Performance In Bilateral Contract With Order Of Performance

In the traditional civil law system,the system of non-fulfilment of defense right of contract includes "different performance" and "simultaneous performance".Unlike the legislative model,articles 66 and 67 of the "Contract Law of the People's Republic of China" are used to improve the application of law.The explicit policy considerations,with the order of fulfillment as the boundary,distinguishing between the application of the right to defend both at the same time and the first to implement the right to defense,are referred to as "the separation of the right to defend at the same time".Therefore,in the dual-service contract that is performed at the same time,as the first performer,the right to perform the defense at the same time shall not be raised in principle.However,this kind of legislative model leads to related legal issues.That is,in a dual-service contract that is performed at different times,when the debts of both parties have expired and the performance party is delayed,the first-rate performer can be given the right to defend at the same time.In order to achieve fair treatment of the parties to the contract the purpose of the legislation.However,for this issue,it is difficult to obtain a fair and appropriate conclusion from the existing legal norms.Therefore,it is necessary to seek reasonable argumentation results through legal interpretation.In a bilateral contract with order performance,if the post-implementer is caught in a delay in receiving,or refuses to accept or fails to perform the necessary assistance,on the one hand,the failure of the first performer is due to the non-receipt or cooperation of the subsequent performer.As a result,delays are borne by the first performing party.On the other hand,the post-implementation party's delay in receiving the service is a slacken of its own rights.If it does not impose any restrictions on the effectiveness of the post-implementer's right to defend,it will be unfair to the first performer.Therefore,whether it is possible to conditionally grant the pre-executing party the right to simultaneously perform the right of defense in the investigation of the simultaneous performance of dual-service contracts will be helpful to the understanding and application of the entire system of simultaneous defense.First of all,according to the historical interpretation and system explanation,the article finds that due to the lack of sufficient understanding of mutually implicating the obligation to treat payment obligations in the dual-service contract,legislation and doctrines have an understanding of the right to defend the right to fulfill the defense at the same time,making the research focus.From the defense of debt non-performance to the order of performance.However,at the same time,both the right to defense and the right to perform the defense are the defenses against the performance of the contract.Regardless of the order of performance,when the parties to the dual-service contract fail to fulfill their obligations during the period,there is corresponding right to defense.Secondly,through the method of purpose interpretation,based on the exclusion of the normative effect of fulfilling delay in the system of simultaneously performing defense rights,the substantive significance of interpreting the order of fulfillment is not to distinguish "simultaneous performance" or "different performance" but to focus on the expiry of the performance period.That is,the simultaneous performance of the right to defense is a right of defense when the period of performance of the debt has expired.When the performance period of the debts of both parties in the concurrently executed dual service contract has expired,it may constitute a precondition for the application of the simultaneous right to defense.Finally,combined with the characteristics of the delayed acceptance system,in the dual-service contract,when both parties have failed to perform payment and the debt maturity period has expired,the performing party falls into a delayed delay,according to the debtor's liability reduction theory,afterward fulfillment party.Should bear unfavorable legal consequences,the specific performance of the loss of their own time limit and the relief of the first performer.That is,when the performance period of the post-performance party's debt expires,the debt of the two parties will be converted from "timely performance" to a "simultaneous performance" relationship.At this time,when the counterparty submits a performance request,the first performing party may also have the right to perform the defense at the same time and refuse to perform the payment.In this sense,on the one hand,the first performing party can exclude the composition of delayed performance based on its normative effect by enjoying the right to defense at the same time.On the other hand,people can be urged to actively assist in the treatment of benefits and to perform payments to achieve the purpose of the contract.