Study On Simultaneous Performance Judgment

As a major form of engaging in civil and commercial transactions in the process of modern economic and social development,dual service contracts are becoming more and more rapid,and civil and commercial transactions are becoming more frequent.The role of dual service contracts in economic development is also becoming increasingly important..However,obstacles will inevitably be encountered in the performance of the dual service contract.In order to better protect the performance of the dual service contract and protect the legitimate interests of both parties,it is particularly important to promote the transaction.The right of defense,as a relief system established in contract law in the performance of a dual service contract,has incomparable advantages compared to systems such as liability for breach of contract.At the same time,the performance of the right of defense is an important means for the parties to self-relief during the performance of the dual service contract.Article 66 of China’s Contract Law clearly stipulates this.However,the simultaneous implementation of the right of defense faces great difficulties in practical applications.In the case of dual service contract disputes,if the parties raise the right of concurrent defense in the lawsuit,how should the court decide.That is,in the dual service contract litigation,the defendant filed a concurrent performance of the defense.If this defense does not hold,the court directly decides to support the plaintiff’s claim.There is no doubt about this.The question is,if the defendant proposes at the same time that the defense is established,how should the court decide? This issue is still blank in the field of civil procedure law in China,which also restricts the exercise of the right of defense in the substantive law.Although the simultaneous execution of judgments in China’s judicial practice has emerged,it has not been recognized and popularized.Such judgments in foreign countries are more mature practices in civil law countries,especially in Germany,Japan and Taiwan of China.Provisions.However,in China,although similar judgments have appeared in practice,there are no clear legal provisions,which will inevitably cause confusion in judicial application.In this regard,it is necessary to introduce and analyze the simultaneous execution of judgments outside the territory.This article mainly introduces the analysis of the concurrent execution of judgments from the perspective of procedural law.Based on the legislative and theoretical research of such judgments in relevant countries and regions outside the region,it systematically introduces the analysis of the superiority and rationality of the simultaneous execution of judgments system.It is introduced and widely used in judicial practice to make recommendations.The article includes an introduction which is divided into five parts.In the introduction part,the author introduces the current situation of the procedural law after the exercise of the right of concurrent performance defense at home and abroad,explains the practical significance of the introduction and introduction of the judgment of concurrent performance abroad,and explains the research methods of the article.The first part mainly analyzes and introduces the judgment of simultaneous performance on the basis of theory.First of all,through the introduction and analysis of the concept of concurrent performance judgment,it is clear that the nature of this kind of judgment belongs to the conditional enforcement basis;secondly,according to the different degree of implicative recognition of the legal basis of concurrent performance defense right in civil law countries,it analyzes the concept and nature of concurrent performance defense right on the basis of substantive law,and concludes that concurrent performance defense right belongs to the defense right At last,the author introduces three kinds of judgment forms made by the court when the defendant exercises the right to perform the defense at the same time in the current judicial practice,and makes a brief analysis of the three kinds of judgment forms.The second part introduces the rationality of introducing concurrent performance judgment in China.Combined with the research of Germany and Japan on simultaneous performance judgment,this paper analyzes the query of simultaneous performance judgment in our country,responds to the query,and puts forward the rationality of the application of simultaneous performance judgment.The third part mainly introduces the relevant legislative provisions and judicial practices of the countries and regions of the extraterritorial civil law system,and introduces the trial procedure of the simultaneous performance of the judgment system.First of all,it introduces the way,time requirement and claim scope of the parties’ exercising the right of simultaneous performance of defense in the court proceedings;secondly,it analyzes the problem of the right of interpretation and the distribution of the burden of proof in the system of simultaneous performance of judgment;secondly,it clarifies the scope of the application of the right of simultaneous performance of defense in the proceedings by discussing the scope of application of the right of simultaneous performance of judgment,It mainly includes the application based on the origin,the application of contract rescission and restitution,and the application by analogy in theory.Finally,it introduces the rationality of the judgment of the plaintiff’s winning in the performance of the judgment at the same time,and discusses the relevant appeals of the plaintiff and the defendant.The fourth part analyzes the nature of the conditions attached to the simultaneous performance of the judgment,the subject of the application for enforcement and how to review the enforcement agencies in practice,when neither the legislation nor the judicial interpretation of our country has provided for the implementation of the judgment at the same time.