On The System Of Uneasy Right Of Defense

On January 1,2021,the civil code of the People’s Republic of China(hereinafter referred to as the civil code),the first law named after the code,came into effect after the founding of new China.It is of epoch-making significance to set a precedent for codification in China.The civil code follows the "old system" and stipulates the system of uneasy defense right and anticipatory breach of contract.How to connect the system of uneasy defense with the system of anticipatory breach of contract has become a very important research topic.The conflict between the system of anticipatory breach of contract and the system of anticipatory breach of contract has a long history.One of the most prominent is how to choose when a case meets both the constitutive requirements of the right of uneasy defense and the constitutive requirements of anticipatory breach of contract.The civil code transplants two very similar systems at the same time,which directly leads to many overlaps between the two systems.In the process of judicial application,it is difficult to choose between the two systems.In addition,a series of problems,such as too high burden of proof of the party who performs first,unclear specific provisions on appropriate guarantee and reasonable time limit,all lead to the party’s uneasiness in the exercise of resistance The lack of clear legal basis leads to some difficulties in safeguarding rights.In addition,this paper also makes an empirical study through the Chinese legal document adjudication network and Weike advance legal information database,so as to understand the problems existing in the judicial application of the right of uneasy defense system,and point out the direction for the further improvement of the system.This paper argues that under the background of legislation in the new era,it is necessary to explain the above issues clearly.As for the relevant legal provisions of China’s system of uneasy right of defense,this paper makes a full study in order to put forward a new path to improve the relevant provisions of the system.The research on improving the system of uneasy right of defense is an important embodiment of practicing the legal value of our country.From the perspective of interpretive theory,this paper puts forward its own opinions in order to improve the system of uneasy right of defense.First of all,in order to better clarify the relationship between the system of uneasy right of defense and the system of anticipatory breach of contract,and avoid confusion in the system,we should do a good job in the connection between the system of uneasy right of defense and the system of anticipatory breach of contract.When the party who performs first fails to exercise the right of uneasy right of defense,it is deemed that the party who performs later constitutes anticipatory breach of contract,and the party who performs first can exercise the right of anticipatory breach of contract Secondly,referring to the relevant provisions of the enterprise bankruptcy law,we should appropriately reduce the burden of proof of the first party,and reasonably distribute the burden of proof between the two parties;finally,we should have the relevant provisions of the system of uneasy right of defense,so as to lay a solid foundation for improving the contract system.