Based on the typological analysis of the agreement on the order of performance,it can be concluded that such agreement usually have no impact on the establishment of the right of defense of contract performance.Furthermore,regarding the agreement on the order of performance as an fundamental element of the right of defense of contract performance results in mutual exclusion of two essentially identical types of defense rights,which will lead to extremely unreasonable practical consequences.Therefore,these agreements should not be regarded as fundamental element of the right of defense of contract performance.However,in order to fill the legal loophole in the claim of the defense of performance by non-fixed first payment obligors,it may be appropriate to regard the agreement on the order of performance as an obstacle element to the defense of performance.There-fore,the party who has first-payment obligation but have not performed could not claim the defense of perform-ance.In addition,the defendant's performance of his contractual obligations should not be regarded as an obsta-cle element to the defense of contract performance,but a constituent element of the norm of the right elimination.On the one hand,the above understanding can provide a new perspective for the debate on the preservation or abolition of the defense of first-performance,and on the other hand,it can also provide clear and stable practical guidance for the evidence investigation of the defense of performance.
关键词
同时履行抗辩权/先履行抗辩权/履行顺序/构成要件/证明责任
Key words
The Defense of Concurrent Performance/The Defense of First-Performance/Order of Perform-ance/Constituent Elements/Burden of Proof
万方数据