On The Judicial Application Of The Right Of Uneasy Counterplea

In the contract law of our country,both the right of uneasy defense and the expected breach of contract are about the relief system of the expected non-performance,and there is the possibility of overlapping in the application of elements and legal effects.This paper mainly discusses how to sort out and distinguish the relationship between the two.The right of uneasy defense in the contract law corresponds to the "progressive" legal remedy,while the expected breach corresponds to the "direct" legal remedy,so the two should be clearly distinguished in terms of function and scope of application.Under the current framework of the contract law,the scope of application of the expected breach of contract should be limited to the refusal to perform before the period in a strict sense,and the scope of application of the right of defense against insecurity should be moderately expanded to make it applicable to all situations with high possibility of non-performance but uncertain.In addition,according to "contract law" article 69 the creditor to cancel the contract after the problem of how to request damages,the author believes that phase of rescission and the period before the damage compensation claim on legal basis and established range is not the same,both in logically belongs to the two questions,so only in the framework of discomposure deraignment in regulation and suspending period before termination right enough,both don't have to article 69,linking to the expected default rules also do not need to explain it to the new rules of the anticipatory breach;The question of compensation for damages incurred prior to the application of article 69 shall be dealt with in accordance with article 107 of the contract law rather than article 108.