河北法学2025，Vol.43Issue(1)：62-79,18.DOI:10.16494/j.cnki.1002-3933.2025.01.004
同时履行抗辩权的程序法理
On Procedural Jurisprudence of Defense Right for Simultaneous Performance
摘要
Abstract
The legal attribute and legal effect of the defense right for simultaneous performance determine the litigation structure when the defendant performing the right of defense in the action.The the defense right for simultaneous performance is the defense right of substantive law,is the attack defense method in litigation,does not affect the identification of the subject-matter of the litigation,and can not be transferred to the assignee with the transfer of the subject-matter of the litigation.The defendant shall prove the facts of the legal requiremnt condition of the defense right."The other party fails to perform"requirement is a negative fact,if the plaintiff denies it,he shall prove the facts that he has performed.The objective scope of res judicata to treat the payment judgment only covers the payment claim claimed by the plaintiff.However,after the judgment comes into effect,the dispute between the two parties over the payment obligation has been settled,and the defendant brings the payment claim against the same plaintiff based on the same facts and legal reasons,which does not have the interest of litigation.According to the principle of blackout effect,the parties have the opportunity to argue simultaneously perform defense in the previous lawsuit,and if they do not put it forward for objective reasons,they can not put it forward afterwards.Follow the procedural legal principles of the judge's elucidatory,only on the premise that the defendant's defense contains the meaning of defense right of simultaneous performing,the judge can guide the parties to debate around the defense right of simultaneous performance,and resolve the dispute as once as possible.关键词
同时履行抗辩权/对待给付判决/证明责任/遮断效/法官释明Key words
defense right of simultaneous performance/judgement of simultaneous performance/burden of proof/interdiction effect/judge's elucidatory分类
社会科学引用本文复制引用
吴英姿..同时履行抗辩权的程序法理[J].河北法学,2025,43(1):62-79,18.基金项目
国家社科基金重大项目"民法典与民事诉讼法的协同实施研究"(22&ZD206)的阶段性成果. （22&ZD206）
