On the "Contract Law" in the system of Plea

[Abstract] This Article analyzes the system of contract Law in the application of Plea, and the views of scholars and experts at home and abroad and the practice of contract Law, an objective assessment of China's contract Law is not a defense system.

[Keywords:] <"Contract Law"> pricing Plea

According to China <"Contract Law">, unstable defense refers to the establishment of bilateral contract, to fulfill contractual obligations shall be conclusive evidence that the other pArty one pArty will not perform or fulfill its contractual obligations are not in danger, in the other pArty does not perform or treat provision of security for the temporary suspension of the right to contractual obligations.

First, the applicable conditions of Plea
1. Because of the same bilateral contract the mutual obligations, and the two have on the price relationship between the debt. Although <"Contract Law"> Article 68 does not require "parties owe" as one of the conditions applicable to defenses, but Plea content of the right to see it must be applied to bilateral contract, and is suitable for various types of dual-service contract. uneasy exercise of the right defense, the parties must Bilateral contract for the same mutual obligations, and these two have on the price of the debt relationship premise. unilateral contract, and the Bilateral Contract incomplete unrest can not be right of defense.

2. Uneasy right of defense contracts for the two services when the performance is different. The performance of obligations of both parties to the contract, not in the same time, an earlier one in the post, this difference is applicable when the unstable defense to perform a prerequisite, but something must be recorded by both the prior special agreement. our contract law, unless the parties have specifically provided, shall be used when the performance of different doctrine, including: leasing, contract, storage, warehousing, commission, the broker, the brokerage and so on.

3. Exercise period shall be from to fulfill their obligations completed before. Unstable defense is to implement the side after the discharge side of the performance of defense, if your side has been fulfilled, they do not perform, the first performance of parties exercise should be a breach of the prosecution rights; if the other party has fully performed, then the elimination of the contractual relationship, the defense does not exist to fulfill the right to question.

4. The first performance of parties there is conclusive evidence of the contract after the establishment of performing party for loss or possible loss of its ability to perform. Generally speaking, it consists of three basic elements: First, after performing party for loss or possible loss of its ability to perform. Second, after the performance party loss or possible loss of its ability to perform the contract occurred after the establishment. Again, the first performance of parties after the performing party for the deterioration of its ability to perform the negative fact that a strict burden of proof.

Second, the legal effect of unstable defense
The legal effect of unstable defense includes the two meanings, on the one hand, if the parties did not conclusive evidence showing that the other party for loss or possible loss of its ability to perform the suspension of performance, then the contract can not constitute unstable defense law, shall be liable for breach of contract; On the other hand, press the <"Contract Law"> 69 provides that if the parties in accordance with Article 68 of this Act to fulfill the stay, it shall promptly notify the other party. the other party to provide appropriate security, should be restored to perform; the other did not resume within a reasonable time its ability to perform and fails to provide appropriate security, the suspending party the right to terminate the contract.

Third, China <"Contract Law"> the advantages of unstable defense system
1. On the exercise conditions were more fully detailed provisions in the scope and exercise of even more wide range of conditions more conducive to protecting the legitimate rights and interests of one party to perform first. Breakthrough in contract law provisions of the Civil law tradition, is no longer confined to the property after the discharge side of good and evil there can not do anything towards payment of the consideration, that is, significantly decrease in the property. <"Contract Law"> the provisions of Article 68, can include the deterioration of good property, which also covers loss of business reputation, but also flexibility through the provisions of Article IV to the contract to perform a variety of potentially harmful, threatening behavior, including trading order to the relative loss of ability to perform to determine the standards, which can be said to be a successful example of legislation to form their own Plea characteristics of the system on standby conditions, the first performance of a contract to provide full legal protection. reposted elsewhere in the Research Papers Download http://www.hi138.com 2. not only reflects the interests of the first performance of parties to perform, but also fully take care of the party after the performance period of interest. contract law provides for a first performance of parties the right to suspend performance, but also the corresponding two statutory provisions of the accompanying obligation of proof and notification obligations. At the same time, from 69 provisions can be seen that the first performance of parties in the suspension of contract performance and to make the notification obligations, the first performing party only in a state of waiting, and no right to call for security or performance in advance. This provision is fully taken into account the period after the performing party interests. because, after the performing party in the discharge before the expiration of its ability to reduce performance, it is difficult to fulfill the state may only be temporary, before the expiry of the performance period may regain its ability. If the performance requirements before the expiration of the period performance guarantee or early post-discharge, which, after performing party is not fair. The law can not avoid the consequences of an unfair injustice caused by another. So do not give the first performance of parties upon request provide financial guarantees and performance reflects the early exercise right to the protection of the post-performance party.

3. To further improve the performance side of the remedies first. Anxiety relief right of defense is the right way one can suspend their benefit on the other side, once the other party to provide adequate security, should continue to fulfill their obligations. But they do not ensure the performance of proposed , in the exercise of the right right after the anti-anxiety, can then terminate it? laws of many countries to this very vague provisions. This remedy is not clearly led the first party to fulfill the interests are not adequately protected. China <"Contract Law"> clear that after performing party "within a reasonable time and failed to regain its ability to fail to provide appropriate security, the suspending party may terminate the contract." This is the first performance of parties provides a clear relief.

Fourth, China <"Contract Law"> in the less unstable defense system
1. The conflict between different legal systems, that is expected to breach the system unstable defense conflicts. Such as <"Contract Law"> 68, especially the second one and 108 and section 94 of the second conflict problems. such as "transfer of property, withdrawal of funds in order to avoid debt" and "its conduct that does not fulfill its contractual obligations" relationship led to unstable defense system and the anticipatory breach of the conflict. If the party by its conduct that it does not perform its main obligations the other party may terminate the contract in accordance with Article 94 provides direct; but this behavior can also be explained by Paragraph Four of Article 68 as "other circumstances", then the other party may have only unstable defense, may suspend the performance of the contract, but no right to directly cancel the contract. in the same law, the handling of the same case there were two different methods, the formation of the legal application of the contradictions and conflicts. the question of justice through a clear solution to be resolved.

2.68 provides the so-called "conclusive evidence" issue, that is, problems of proof. I am uneasy with the contract law defenses of the burden of proof requirements are very demanding. However, in reality, the full protection of all information resources in today's society, to obtain "clear evidence "is actually not an easy task, Moreover, the current legal environment in China is not perfect, the other party to control through formal channels, the so-called" conclusive evidence "is very difficult and may artificially create many new social problems. may provide for the exercise of the requirements right side, while the burden of proof, some evidence to the contrary against the negative side responsibility.

3. Does not specify damages in the first request to perform the right side. The provisions of section 69 only gives the parties the right to terminate the contract, but does not require the termination of the contract, the first performance of parties entitled to an immediate right to sue for damages, which peter's relief in many cases clearly did not meet the reasonable requirements of the first performance of parties, reflects the parties in the legislative protection of poor planning.

4. In addition, there are other imperfections, such as about 69 on "appropriate security", "reasonable period" and did not make explicit provisions.


References:
[1] Shi Shangkuan. Claims Act Overview. China Politics and Law University Press, 2000.588.

[2] Wang Liming. On several issues of unstable defense. Civil and Commercial Law Research Series No. 4. Beijing: Law Press ,2001.481-482. Links http://www.hi138.com Research Papers Download