履行抗辩权探微

我国合同法将同时履行抗辩权和先履行抗辩权分立并无不当,不宜称合同法第66条的规定存在着法律漏洞。履行抗辩权在若干场合可以存在于非对价关系之中。履行抗辩权因当事人的约定而扩张或者收缩。对于同时履行抗辩权的"存在的效力",应当区分情况而定。

Study on the Defenses in the Performance of Bilateral Contracts

It is not a fault of Chinese Contract Law to separate defense of simultaneous performance and defense of subsequent performance,thus it is not proper to assert that there exists a legal gap in Article 66 of the Contract Law. Sometimes defenses in the performance of a contract may arise on the occasion that the duty undertaken by one party is not in exchange for the duty of the counterparty to perform. In addition, the defenses in the performance of the contract will be expanded or shrunk depending on the agreement of the parties. The effects of existence for the defense of simultaneous performance should be ascertained in different situations.