A Study On The Demarcation And Connection Between The System Of Anticipatory Breach And The Right Of Disobedience In China

The contract law of our country stipulates the liability for breach of contract,which means that after the expiration of the performance period of the contract,one party fails to perform the contractual obligation or the performance of the contractual obligation does not meet the agreed conditions.This traditional liability for breach of contract is a relief system for the interests of both parties after the expiration of the performance period And when the time limit for the payment of the contract has not been to,when one of the parties if any contract cannot continue to perform the contract,in order to avoid the expansion of another party's loss,from the principle of fairness and efficiency of our country draw lessons from the anticipatory breach system in the Anglo-American law system and continental law system of right of defense system,to form the contract fails to perform the expected relief system in our country,to the default behavior of prior to the expiration of the time and uneasy affair happen through the two standard system is all about the contract.Our country "contract law" the regulation of contract fails to perform the expected relief system,to the regulation of the two system exist some cross and overlap,the two system are all in prior to the expiration of the term of the contract,if one party refuses to perform before a period or to perform the behavior,not involved in two system,under the two system,the creditors shall have the right to refuse to continue to perform the contract itself.It is because of the similarity of these two systems that some problems arise in the judicial application of the relief for the expected non-performance of the contract.For example,in case of the expected non-performance of the contract,if the parties to the contract want to remedy according to the provisions of the contract law on the expected nonperformance of the contract,it is easy to fall into the ambiguity and confusion of the application of law for the same reason.Although the system of expected breach of contract and the system of the right to protest are both norms and remedies for the expected nonperformance of contract in terms of value protection of law,they have different provisions and results in terms of legal basis and specific remedies.In addition,the civil code of the People's Republic of China(draft),promulgated on December 16,2019,makes more specific and perfect provisions on the exercise of the right of disquiet defense than the current contract law.Therefore,following the trend of legislation in China,it is also necessary to make a comparative study of the system of expected breach of contract and the system of the right of disquiet defense,so as to improve and link the two systems.Therefore,based on this research,this paper firstly discusses the current situation and existing problems of the two regulations from the legal sources of the two systems.Secondly,comparative analysis,case analysis and other methods are used to analyze the two systems,to find out the connection and difference,including the scope of application of the two systems,relief methods and the comparative analysis of the implied breach of contract and the right to disquiet in the expected breach.Thirdly,the author puts forward some Suggestions on the boundary and connection of the two systems.The main idea of perfecting the proposal is to clearly distinguish the respective relief modes according to the nature of expected default and uneasy right of defense,so as to avoid the situation of overlapping and chaotic application of existing legal provisions.To be specific,the normative terms corresponding to the expected breach system should be limited to the liability for breach;The right of disquiet defense,as a right against the other party,should be limited to the defensive right of confrontation,and should not involve the right to terminate the contract.The author puts forward some Suggestions on the legislative system,legal standard language,and the distinction and improvement between explicit breach and implied breach in the expected breach.The application of the right of disconcerting defense puts forward the inversion of the burden of proof and the right of the party to the post-performance of the contract to guarantee its own disconcerting causes,thus promoting the timely performance of the contract.A party to a contract shall have the right to provide security and other Suggestions.Finally,the connection between the system of expected default and the right of disconcerting defense is conceived.In these two systems,it is biased to deny or cancel any one of them.The system of expected breach of contract exists as a system of liability for breach of contract.Therefore,this paper makes a comparative analysis and connection research on the system of expected breach and the right to protest against anxiety,hoping to echo the relevant provisions in the contract compilation of the civil code in the future,and provide a way of thinking for judicial practice and law application,so as to better protect the interests of the parties to the contract.