简论先履行抗辩权及其运用

On the Right of Plea against the Advance Performance and Its Use

我国《合同法》为了矫正司法实践对双务合同之牵连性的认识缺陷,借鉴国际经济交往中相关合同履行规则,设立了先履行抗辩权制度。作为一项独立的规则,它弥补了同时履行抗辩权和不安履行抗辩权的不足。但《合同法》实施以来大量的合同纠纷表明,人们对先履行抗辩权的认识不够深刻,对先履行抗辩权的行使不够规范。为了有效避免违约行为的发生,最大限度地保护合同当事人的民事权利,需要透析《合同法》相关条文,细化先履行抗辩权的行使要件,寻求正确行使先履行抗辩权的规则与技巧。

Through drawing lessons from international economic exchanges, our Contract Law sets up the system of plea against the advance performance in judicial practice to rectify the disadvantages of bilateral contract. As an independent rules, it compensates for the right to perform and defense. But the disputes involved Contract Law shows that people know less about it, and the exercise of right of plea against the advance performance is also not standard. In order to effectively avoid the breach of contract and protect the civil rights, it is necessary to make sense of the related articles in Contract Law, refine its performing requirements, and try to seek rules and skills to exercise the right of plea against the advance performance.