On The Application Of The Right Of Defense To Simultaneous Performance

The right of defense for simultaneous performance,which is an important defense system in the process of contract performance.However,with the deepening of theoretical research and the emergence of a new trading model,its shortcomings and disputes in the application become more and more obvious.Secondly,the application of the right of defense to be exercised simultaneously strictly follows the interpretation of the text and meaning.Thirdly,to exercise the right of defense correctly and at the same time,the types of judgment made by the court are not the same.Through a lot of case classification comparison,and based on the perspective of law hermeneutics,suggested "contract law" article 66 and article 66 should highlight the commonality of its incentive to perform,and weaken the order on the performance difference,merge the two clauses,unified interpreted as when one party fails to fulfill its obligations the other party shall have the right to refuse to own performance,except where the first to perform the obligation;In addition,it should be recognized that there is room for the right of defense to be exercised in the non-consideration relationship between the non-identical service contract and the contractual obligations of both parties;Finally,there is no need to introduce simultaneous performance of judgment in the current legal framework,the court should make a judgment to reject the plaintiffs claim.The article is divided into four parts,the specific contents are as follows:Through case classification comparison and from the perspective of legal hermeneutics,this paper discusses the following four aspects:The first part:simultaneously the legal basis of the defense-implication theory and its production process.At the same time,the right of defense is an important defense system in the contract law.The analysis of the constitutive elements of the right to defense of simultaneous performance is explained from the following aspects:"both parties have the same period of performance of their debts" and "both parties treat each other's payment obligations due to the same service contract".The second part:in view of the first component "the same period of performance of both parties' debts",the author analyzes whether the basis of the right of defense of first performance is the theory of implication.Is it necessary to separate the right of first performance defense from the defense of contract non-performance.The third part:in view of the second component "both parties treat each other's payment obligations due to the same service contract",it explains whether there is room for expansion and application of the right of defense to be performed at the same time.The fourth part:when the parties correctly exercise the right of defense at the same time,what kind of judgment should the court make?Most scholars believe that "simultaneous execution of judgment" should be introduced in order to solve disputes once and for all and avoid the waste of litigation resources.Is this new form of judgment reasonable and feasible.