In The First Performance Of The Right Of Defense, The Contractual Obligations Of Both Parties Are Involved In The Determination

In view of the judicial practice,there are many misunderstandings and application errors in the application of the right of defense to perform first.The emergence of this problem leads to some interests that should be protected,but it can not be guaranteed because the application of the right of defense to perform first can not be guaranteed.Among the above problems,confusion is the easiest to apply,or the most difficult to use,is one of the preconditions for the first performance of the right of defense: the identification of the implicated relationship of contractual obligations.Based on the above situation,this paper introduces the argument point from the case.According to the application of Article 67 of the Contract Law of the People's Republic of China on the right of defense to perform first,the core lies in the determination of the relationship between the two parties' mutual obligations after signing a bilateral contract in judicial practice.The author holds that judging whether one party's obligation of treatment and non-treatment in a bilateral contract is related to the principal obligation of payment of the other party needs to be clarified in a case by combining the principle of good faith in Article 60 of the Contract Law and the realization of the purpose of the contract,and the application of the right of defense should be performed first.Whether the requirements of the contract agreement,the supplementary rules of the law or the application of the custom,we should take the "principle of good faith" stipulated in the Contract Law as the criterion of judgment.Based on this point of view,this paper will be divided into three parts,one by one,to analyze and explain,respectively,the first part: case introduction,analysis of points of contention,to illustrate the value of this study;the second part: interpretation of the right to perform defense related jurisprudence,legislation,the distinction between two types of implicated relations;the third part: theoretical evaluation of judicial decisions,the third part Confirmation of Conditions for Exercising the Right of Defence and Conditions and Procedures for Applicability of the Right of Defence.Through gradual analysis,the author finally makes a corresponding judicial evaluation of the cases initially introduced in this paper.The first instance decision of this case does not correctly apply the conditions of performing the right of defense first,does not identify the core element of performing the right of defense first in Article 67 of the Contract Law,namely the relationship between the two parties' successive debts,and does not consider the meaning of the contract.The influence of the relationship of affair involvement on the right of first performance of defense is self-adjudication;the judgment of second instance is based on the applicable conditions of the right of first performance of defense,but the judgment reason is far-fetched and difficult to identify.Based on the analysis of the above-mentioned judgments of the second instance,the author puts forward some suggestions on how to design the transaction conditions and draw up the corresponding contract for reference when one or both sides of the transaction wish to apply the right of defense to perform first.