Research On The System Of Anticipatory Breach Of Contract In China

In the contract law,the anticipatory breach system is a supplement to the actual default system,which originated from the Anglo-American law system.Although there are still many controversies about this system in the academic world,it is still recognized by the legislative and judicial practice of many countries for its advantages.It is stipulated in the United Nations Convention on Contracts for the International Sale of Goods,the General Rules of International Commercial Contracts and the Principles of European Contract Law.On the basis of referring to relevant national legislation and the provisions of international contract documents,the contract law of China also stipulated the anticipatory breach system.However,the legislation of this system in China is not perfect.The judges have no clear theoretical understandings of relevant issues and the standards in the trials are different,leading to judicial injustice and other consequences.Firstly,with the methods of legal interpretation,case analysis and comparative analysis,the paper started with a case to point out the problems existing in China's judicial practice about the application of the anticipatory breach system,analyzed the theoretical and practical significance of studying the system,and summarized the history,characteristics,functions and legitimacy of it.Secondly,the paper analyzed the anticipatory breach system of contract law of China,and summarized its deficiencies and focal points: the incompleteness of the components of the anticipatory breach and the judging standards of the implied anticipatory breach,the imperfection of the relief methods,and the insufficiency of the connection between the anticipatory breach and unsafe right of defense,etc.Furthermore,this paper discussed the deficiencies above,and pointed out the causes of the problems;it alsoprovides some corresponding improvement ideas for the aspects above :(1)the inconsistency of the provisions of the law on the constitutive elements of anticipatory breach of contract results in the disunity of the judgment standards in judicial practice;(2)when the objective situation deteriorates,even if one party does not imply an anticipatory breach of contract by his act,it is enough to threaten the legitimate rights and interests of the other party;(3)unreasonable restrictions on the rights of the party who abides by the contract can easily lead to abuse of relief measures,resulting in unbalanced rights and obligations of the double parties of contract;(4)there exists concurrence and overlap of anticipatory breach and unsafe right of defense,which leads to the confusion in their application.Lastly,based on the case analysis and comparative study above,this paper proposed the following suggestions to improve China's anticipatory breach system:(1)it shall be clearly and consistently prescribed that only when the parties breach the "principal debt" either in an expressed or an implied way,can it constitutes anticipatory breach;(2)not only the behaviors of the parties but also the objective facts can be the judgment standards of implied default;and there should be separate provisions for the express and implied expected default;(3)the restrictions on the right of the non-breaching party to terminate the contract and the scope of the compensation shall be clarified;(4)the scopes and conditions of application of the anticipatory breach system and the unsafe right of defense should be clearly defined to link them up.