Study on the Defense Right of Simultaneous Performance
|Course||Civil and Commercial Law|
|Keywords||While fulfilling the right of defense Ontology Institutionalism Obstacles On|
This thesis, in order to fulfill the right of defense as the object of study, a systematic analysis of basic research methods, divided into the ontology of the right of defense at the same time fulfill institutionalism, the obstacle of three parts. While fulfilling the first part of the historical roots of the right of defense system to reconcile theoretical construct, exercise requirements and the effectiveness of four sub-commentators body constituted. To explore history, the system, in principle, applicable rules, the system and principles is the focus of the writing. System to reconcile the part of the author in the system to the basic operation of the logic of the contract law questions as a starting point, alone at the same time fulfill the prerequisite of the application of the right of defense (to fulfill the specific time is not clear), contract interpretation and contract loopholes to fill resolved, while fulfilling the rights of defense outside run is the basic logic of contract law, tension exists between the two. In order to reconcile such tension, the author analyzed from different perspectives and seek to incorporate both theoretical system of both the association plans while fulfilling the right of defense. In principle part, I mainly implicated in sexual relations judge with the applicable type classification is divided into the original implicated in relations with non-original implicated relationship, the analysis on the different implicated in the relationship between the basis of the applicable conditions, I believe that with the social and economic development, on the one hand, the need for traditional implicated relationship applies to expansion, but we also need to analyze specific issues but not overkill. The second part of the cases investigated by the civil law legislation to commence with the dispute on the legislation in China, which is the focus of this part of the analysis of the legislation on the controversial. Author investigated by the civil law the legislation concluded at the same time to fulfill the right of defense legislation on the German model and the Japanese model, and then through the trading pattern typed way to compare the German model and discrete the mode (our legislature mode), and the Japanese model and discrete discrete model, and ultimately concluded that the German model and the Japanese model is tantamount to quality and exclusive legislative considerations \Responsibility to fulfill their obligations whether a party to enjoy at the same time fulfill the right of defense, the German model and the Japanese model have their pros and cons, we should absorb both advantages. Prior fulfill the abolition of the right of defense, I on the one hand, while fulfilling our legislative defense of the separation of powers \rather than the abolition of the first to fulfill the right of defense. The third part focuses on the articulation between the various performance of obstacles while fulfilling the right of defense system. Divided into specific at the same time fulfill the relationship between the right of defense and breach obstacles and at the same time fulfill the relationship between the right of defense and non-defaulting obstacles. The first part of the breach obstacles into not completely fulfill delay in performance can not fulfill, both parties breach the four parts. The latter part of the non-breaching obstacles is divided into two parts of force majeure and change of circumstances to be addressed. The author believes that in a variety of performance of obstacles while fulfilling the exclusive relationship or presence of coexistence applicable or the existence of the right of defense (liable for breach of the same subject both to enjoy at the same time fulfill the right of defense), applicable in cases when you want to analyze specific issues, good system convergence.