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Anticipatory breach of the right to defense and anxiety Comparative Study

Author: JiaYanZe
Tutor: YinZhiQiang
School: China University of Political Science
Course: Civil and Commercial Law
Keywords: The anticipatory breach of contract Einrede dereinsicherkeit Right to choose Relief
CLC: D913
Type: Master's thesis
Year: 2006
Downloads: 928
Quote: 4
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Abstract

Anticipatory breach of contract, and also called to expect default first, derives from common law system.It is a special concept developed from case law .It means after the contract has been established and effectively before implemented methodelogy,one party expilitly indicates that she will not perform the contract, or she anticipates that the other party will not perform the contract depending on the existing facts 《United Nations international goods sale contract convention 》 absorbed the anticipatory breach theory of common law, and this basic have a development, which divide expectation default into fundamental breach non— fundamental breach But in continent law system,there is not a complete and unified concept anticipatory breach of contract.It only defines the concept of discomfort refutes ,which have the similar meanings with anticipatory breach of contract.Though the two are the same on the principles, such as fainess, fameand efficiency they are different in characters. compements, reliefs and applying conditions. 《The contract law of china》 adopts the concepts of the both legal systems thus,the anticipatory breach of contract and uneasyto refute power are different from the "convention"and common law system.In modern economic life, the many economic and social factorses are volatile.For can’t the contract of immediately pure knot, from make to implement a period to go to, will appear the new circumstance of many inscrutabilities to change lately, and can’t make the contract implement or hard implement.Expecting default and discomfort’s refuting all of power systems is for solve contract to go to take place in the contract to implement before implementing after taking effect last of dangerous but establishment of law system.In order to make two kinds of systems produce result well, there is necessity to carry on searching for root to trace to origins.This text was mainly from five parts carried on elaborating.The first part mainly introduces basic theories of expecting the default system.Commence from the establish a reputation case of the system’s beginning, pass to the case law, 《unify company’s code of laws 》 , 《convention 》 medium of the expectation break contractcomparison research, investigating that system a creation and developing process. The second part more big six methodses fasten all countries to refute the different provision of power system to the discomfort, analyzing the merits and demerits of different way of doing in all countries, looking for existence difference hard of, refuting the property, system value...etc. of power to carry on to analyze completely to the discomfort at this foundation top.For begging to ascend explaining of related rule and the lawmaking of future perhaps law emendation to provide to draw lessons from for the our country current method.The third part is to refute power system to the expectation default and the discomfort of more analytical.The article was deep to analyze expectation default and discomfort to refute power to design principle and attribute and be worth the difference of mindset and system in the system.Elaborate completely two systems contain respectively different function, point out two kinds of systems to can’t replace each other independently mutually. Four-part cent discuss and analyse our country contract method in of uneasy refute power system structure, think our country of uneasy refute power is to tradition theories of inherit with development, is a traditional frame and the innovation of the rule and combiners big six methods proper logic structures for the persistence, our country the contract method limited degree lead go into expectation break contract system, but the expectation of its provision break contract to rule with British and American method departments of expectation break contract totally different, exist many law loopholes. The fifth part our contract method and permit combine the two concepts go together, ruled expectation default and discomfort to refute power two systems in the meantime in a law, caused law in the fulfillment explain, apply of hard nut to crack.Desire’s making two systems exertive should have of function, have to pass lawmaking or judicatory to explain to revise with perfect. The writer brave puts forward want from the root solve two kinds of systems in the middle of applying of conflict, have to at future lawmaking heavy concept expectation break contract system, revivification uneasy refute the property of power, make two kinds of systems connect up properly, develop the function that it should have respectively. (Contract law ? Shall be our country fundamental law ,which should not verify froguently, for alleviate two kinds of system of’not and permit sex" bring of negative effect, adapt judicatory to practice a demand, at present the measure of expediency should ask for help lawmaking explain or judicatory explain create sex ground integration, moderate.Have a foothold toimplement the whole risks this basic purpose in the decrease contract, explain a contract method definitely the 68th provision of lose or may lose four kinds of situations of implementing the obligation ability should Be judge impilitly to show expectation default of objective standard. When the impilitly shows expectation default and discomfort to refute power occurrence heavy match, limit the option of the party concerned, expect to break contract further and definitely of apply condition and succour measure, lower a line to set ajar to refute power to offer as proof a difficulty, while keeping the inherent logic among the legal concepts and maintaining the strictness of the legal structure ,we shall forbid applying different reliefs when encountering the same situation.

Anticipatory breach of the right to defense and anxiety Comparative Study

Abstract

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