The Coordination Of Unsafe Right Of Defense And The System Of Anticipatory Breach

In judicial practice,if the performance period of the contract has not expired,and a party to the contract fails to perform the contractual obligations or the performance of the obligations does not conform to the provisions of the contract,in order to avoid the loss of the other party,from the principle of fairness and efficiency,China has learned from the civil law system of uneasy defense system and the Anglo-American law system of anticipatory breach of contract system.Together form the relief system of the expected non-performance of the contract in our country.Because these two systems are remedies for the expected non-performance of the contract,there are similarities in the scope of application,legal causes and remedies.The relief provisions of the Civil Code on the expected non-performance of the contract make the two systems overlap and overlap to some extent.Specifically,the two systems are applicable when one of the parties refuses to perform or cannot perform the contract before the expiration of the contract performance period,and the creditor has the right to refuse to continue to perform the contract.Because of the intersection and coincidence of these two systems,it leads to the contradiction of how to apply the remedy in the event of the expected non-performance of the contract.For example,in the event of expected non-performance of a contract,when the non-breaching party exercises relief rights based on the right of uneasy defense or the system of expected breach of contract,it may lead to a situation where although it is the same legal fact,it is easy to fall into confusion in the application of the law.Although these two systems are consistent in terms of the values protected by law,there are different provisions and results in terms of legal basis and remedies.The newly promulgated Civil Code has made relatively comprehensive adjustments to the exercise of the right to defense against unease compared to the original Contract Law,but it has not fundamentally solved the current situation of confusion in the application between the two systems.Therefore,in order to resolve the existing conflict between the right to uneasy defense and expected breach of contract,the legislative intent of the two systems should be followed,and combined with the judicial background of our country,the two systems should be compared and analyzed,and efforts should be made to coordinate and improve the two systems.Firstly,starting from the conflict between the right of uneasy defense and the system of anticipatory breach of contract,this paper discusses the judicial status quo of the two systems and the existing problems in the application of law through case analysis.Secondly,comparative analysis is used to analyze the two systems,sort out the connection and difference between the two systems,and make a comparative analysis of their respective scope of legal application,relief methods,and the connection and difference between implied breach of contract and uneasy defense in the expected breach of contract,so as to explore the causes of the application conflict between the two systems.Thirdly,through the analysis of the theoretical disputes between the two systems,the necessity of the coexistence of the two systems is demonstrated,and the path of coordination is constructed for the two systems.The main idea is to clearly distinguish the remedy mode of uneasy defense and anticipatory breach of contract,so as to avoid the situation of overlapping and confusing application of existing legal provisions.Specifically,as the right against the expected non-performance of the party,the role of uneasy defense should be defensive,should not involve the right to rescind the contract;The normative terms corresponding to the anticipatory breach system should be limited to the liability for breach of contract.Finally,it provides a way to coordinate the right of uneasy defense with the expected breach of contract,and proposes the reversal of the burden of proof for the application of uneasy defense,and the party who performs later in the contract has the right to take the initiative to guarantee the cause of uneasy,so as to promote the continued performance of the contract.And put forward the relevant suggestions on the legislation system and the terms of legal norms of the anticipatory breach system.Therefore,through the comparative analysis and coordination of the system of uneasy defense and anticipatory breach of contract,we hope to provide a way of thinking for judicial practice and law application,so as to better protect the interests of contract parties.