问题 问答题

试论不安抗辩权制度。

答案

参考答案:(1)不安抗辩权是指在双务合同中,先履行合同的一方当事人在有确切证据证明后履行一方有丧失或可能丧失履行债务能力的情况下,有暂时中止履行自己债务的权利。
(2)不安抗辩权制度的直接目的(功能)在于平衡合同当事人的利益,它赋予先履行合同方当事人在对方有难以为对等给付情形发生时,拒绝履行合同的权利。但对方当事人已为给付,或其难以为对价给付的情形消除,或为给付而提供担保时,先履行合同方当事人则应当恢复履行。不安抗辩权制度扩张了债的效力。
(3)不安抗辩权的构成要件包括:1)当事人基于同一双务合同互负债务。在双务合同中,一方的对等给付是另一方权利得以实现的基础,反之亦然。只有在双务合同中,才存在不安抗辩权的问题。2)主张不安抗辩权的一方应当先履行债务且其债务已届清偿期。主张不安抗辩权的一方应当是先履行方,而不是后履行方。先履行方的债务必须已到期,如果没有到期,不能行使不安抗辩权。3)先履行一方有确切证据证明对方履行能力明显降低,有不能对等给付的现实危险。根据合同法的规定,有下列情形的,先履行方有权主张不安抗辩权:后履行方经营状况严重恶化;转移财产、抽逃资金,以逃避债务;丧失商业信誉;有丧失或者可能丧失履行能力的其他情形。在这些情形发生时,先履行方可以中止履行合同。
(4)不安抗辩权的效力在于:在具备行使不安抗辩权的条件时,先履行一方有权中止自己的履行,并可要求后履行一方提供担保。在后履行一方提供适当担保时,先履行一方应当恢复履行。如果后履行一方在合同期限内未恢复履行能力而且未提供适当担保,先履行一方可以解除合同。

阅读理解

It’s Really a Miracle (奇迹)

Mr. Clarke works in New York and he brought his family to China last summer. They visited many places of interest and had a good time here. Before they left for New York, the Clarkes climbed the Great Wall. It was the greatest project over two thousand years ago. They took a lot of photos there and then they had a picnic under a big tree. Suddenly it began to rain and they hurried to the car. And when they returned to the hotel, they couldn’t find the bag in which their expensive camera was. They were all sorry for it. They could buy another camera but had no time to go to the Great Wall again. They could not miss the plane!

That evening they didn’t have supper. Mr. Clarke hoped to make them happy, so he said, “Well, let me tell you a story. An old man lived in a sixty-storey building. One day he fell down from it when he was cleaning the window. But he didn’t hurt himself.”

“It was a miracle!” called out his children, “Why?”

“Because he lived on the first floor!”

They all began to laugh while two policemen with a bag came in. They said a Chinese boy found it under a big tree and he asked them to find out who lost it.

“It’s really a miracle!” the Clarkes said happily.

小题1:Where did the Clarkes enjoy themselves before they left for New York?

A.In London.

B.In Beijing.

C.In Shanghai.

D.In Hong Kong.小题2:Where did the Clarkes left their bag?

A.They left their bag on the Great Wall.

B.They left their bag in the car.

C.They left their bag under a big tree.

D.They left their bag in the plane.小题3:Why didn’t they have anything that evening?

A.Because they were sorry for losing the camera.

B.Because they were not hungry.

C.Because they had no time to have supper.

D.Because they had nothing to eat.小题4:What did Mr. Clarke tell a story to his family for?

A.His children asked him to do so.

B.He wanted to make his family happy.

C.He wanted to tell them a miracle.

D.He liked telling stories.小题5:Who found the bag?

A.Two policemen.

B.A Chinese boy.

C.A Chinese girl.

D.An American boy.

单项选择题 B1型题