先履行抗辩权制度的适用顺序

The Application Order of the Defense of First-performance

先履行抗辩权与附生效条件(学说称之为附停止条件,或延缓条件,下同)本为不同领域的制度,两者在机理、法律构成和法律效果等方面均不相同,在个案中不发生关联的情形较为常见。但一个客观事实同时符合先履行抗辩权与附生效条件的构成,也是可能的,并且已经成为事实。于此场合,当事人对其运用顺序有约定的,依其约定;没有约定的,应当先适用法律关于附生效条件的规定。

The defense of first-performance and effective time condition are two different systems in different areas. They are different in some aspects, basic principles, legal formation and legal effect, etc. and they are not relative to each other on usual. However, it is possible that an objective fact conforms the two conditions, and has become the fact. So we should according to the parties＇engagement, or according to the legal rules about the effective time condition if there are not engagement.