A Study On The Legal Identification Of Bilateral Breach

Article 120 of China's "Contract Law" stipulates the bilateral breach,but because of its over-generalization and abstraction,its practical guidance does not have much practical impact.For the cases of the bilateral breach,the judge is confused about the method and application of the lawsuit.There is no systematic way to make the judge misrepresent the responsibility of the parties.There are also some shortcomings in the rationale of the adjudication documents.This article examines the bilateral breach as the starting point of the types of bilateral breach,hoping to provide judges with a better way to determine the bilateral breach.This article is divided into five parts except the introduction.The first part discusses the dispute whether there is the bilateral breach.The scholar say the bilateral breach can be taken of contributory negligence,and afterward,it is not applicable to the law of contract,and denied the viewpoints of the preceding viewpoint.However,it should be able to apply to the contract law when it comes to the defence of the causality in the defence of liability.And the reason why there is contributory negligence can't completely replace the bilateral breach is that they are different in the subject,focus and liability of concern.And the bilateral breach also can't be replaced by mitigation rule.The bilateral breach is not an independent system.It can still be solved through the relevant systems within the contract law,but the process is more complex and difficult.The second part discusses the types of the bilateral breach.The first is the type of standard.To "involvement" and "consideration" as the standard type of the bilateral breach,there is a level of benefits.The process is step by step and not easy to chaos.Second,discuss the specific types of the bilateral breach.The first is the simple bilateral breach that has no need to discuss "involvement".Such cases can bring about the efficiency of litigation through combined trial.The second is the complex bilateral breach with discussing "involvement" and "consideration".It's the defence rights of simultaneous performance and advance performance improperly exercise;the third is the bilateral breach with discussing "involvement" no "consideration".It's that the defence right of unsafety improperly exercises.The third part discusses the judge can interpret the defence right of performance.Firstly,it emphasizes that the judge interpretation can influence the outcome.Secondly,the scope ofinterpretation includes the defence right of performance.After the party has proved the basic facts that are the establishment of the defence right of performance,the judge can explain it based on the substantive fairness of the law.The fourth part deals with the constitution of bilateral breach.The first is the basic condition for the bilateral breach,that is,the bilateral breach does not exist in the unilateral contract and the parties must all breach the contractual obligations.Second,the specific types of the constitution of bilateral breach.The simple bilateral breach meets the basic conditions;The complex bilateral breach is formed when defenders,who do not follow the requirement of "consideration" or not have relevant defence rights,illegitimately perform the defence rights of simultaneous performance and advance performance;The defense right of unsafety improperly exercises either because the defender fails to perform the notification obligation properly or because it failed to prove in the lawsuit its burden of proof that the defense right of unsafety was established.Whether caused the bilateral breach,it depends on other party defaults or not.The fifth part concludes the full article.