On The Balance Of Interests And Risk-taking In The System Of Anticipatory Breach Of Contract

At present,the contract Law used in China covers the mechanism of anticipatory breach of contract in the Anglo-American legal system on the one hand and the right of uneasy defense in the mainland legal system on the other.The purpose is to reduce the burden of unnecessary losses caused by the other party’s anticipatory breach of contract and to achieve the balance of interests between the two parties to the contract.The establishment of anticipatory breach of contract needs to be supported by some evidence,but there is a problem of improper integration in the legal transplantation of this system,which causes some conflicts in the application of the law.Therefore,this paper studies the controversial issues existing in the judicial application of the system of anticipatory breach of contract in China,and puts forward the views that the author agrees with and some personal suggestions to enhance its maneuverability.In this paper,the research on the topic is mainly carried out through three chapters: the first part is mainly about the background and significance of the system of anticipatory breach of contract,and points out the problems existing in the judicial application of the system of anticipatory breach of contract in our country.and the relevant research methods of the system of anticipatory breach of contract at the present stage.In the second part,by consulting a large number of cases,the author thinks that although the current contract Law clearly defines the content of anticipatory breach of contract,it is not clear in judicial application: does the creditor have no other choice for the anticipatory breach of contract of the debtor? can only rely on the liability for breach of contract to implement the relief for their own interests? After implementing the anticipatory breach of contract,can the debtor also remedy or correct the adverse consequences caused by his anticipatory breach of contract according to the consideration of his own interests? And after the anticipatory breach of contract occurs,who should bear the risk consequences based on the reasons of the parties to the unaccountable contract? Through thecombination of the theory and case analysis in the previous part of the article,the third part concludes that the measurement of interests in anticipatory breach of contract is the content of contract law,which means that the right of choice enjoyed by creditors is the right of contract law.it can have legal effect without the determination of the other party.The creditor can not only exercise the right to terminate the contract to require the other party to bear the liability for breach of contract,but also can choose to maintain the validity of the contract until the arrival of the original time limit for performance,and then realize the relief of their own interests by the way of actual breach of contract by the other party.After the choice made by the creditors,they should bear certain risks and bear the consequences that may be unfavorable to themselves,so as to maintain a balanced relationship of interests between the two parties.Therefore,the method of interest measurement should be introduced in the judicial application of anticipatory breach of contract in our country,giving the creditor a certain right of choice,giving the debtor a certain right of withdrawal,and clearly dividing the risk burden of both parties.According to this,we should examine the legitimacy of the determination process of the anticipatory breach of contract system and the rationality of the determination result,and maintain the balance of interests between the parties.