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    　　“先履行抗辩权”又称“不安抗辩权”，是双务合同中应当先履行债务的当事人，有确切证据证明对方有经营状况严重恶化、转移财产、抽逃资金以逃避债务、丧失商业信誉，或者有丧失或可能丧失履行债务能力的其他情形，危及到自己债权的实现时，可以中止自己的履行，在合理期限内对方未恢复履行能力且未提供适当担保时，可以解除合同的权利。因此，先履行抗辩权在抗辩性质上具有延期性和消灭性的双重属性。我国根据自己的国情，建立了具有中国特色的先履行抗辩权制度，并具体体现在我国的第一部《合同法》中。下面本人就从以下几方面进行一些肤浅的探讨。

一、先履行抗辩权的适用条件

根据大多数大陆法系合同法的理论，先履行抗辩权适用条件大致有以下四个方面：

　　（一）因同一双务合同互负债务，且两债务间具有对价关系。先履行抗辩权与同时履行抗辩权一样，均只能发生于双务合同。因此，单务合同以及不完全的双务合同均不能产生先履行抗辩权。

　　（二）先履行抗辩权适用的双务合同属于异时履行。异时履行是指双方履行存在的时间顺序，即一方先履行，另一方后履行。根据我国合同法规定，对一些买卖合同，除法律有特别规定外，一般采用同时履行主义。而对于有些合同如租赁、承揽、保管、仓储、委托、行纪、居间等则一般应采用异时履行主义。

　　（三）先履行方债务已届清偿期。如果履行期未届至，先履行方只能暂时停止履行的准备，无从停止履行。

　　（四）先履行方有确切证据证明后履行方于合同成立后丧失或可能丧失履行能力。它包括三个要素：

1、后履行方丧失或可能丧失能力。按我国《合同法》的规定，后履行方丧失或可能丧失履行能力的原因有：①财产显形减少。包括经营状况恶化、转移财产、抽逃资金以逃避债务；②丧失商业信誉；③提供劳务或完成工作的合同中，债务人丧失劳动能力；④给付特定物的债务中，该特定物丧失；⑤其他情形。

2、后履行方丧失或可能丧失履行能力发生于合同成立之后。

3、先履行方对事实负有举证责任。先履行方主张先履行抗辩权，必须有对方丧失或可能丧失履行债务能力的确切证据，而不能凭自己的主观猜测。否则，将会因擅自中止合同履行而承担违约责任，从而使自己处于极为不利的地位。

二、先履行抗辩权的效力

合同当事人一方在符合上述条件后，即取得先履行抗辩权，但先履行方取得该权力后会对双方当事人产生什么影响呢？也就是说先履行抗辩权的效力问题。

（一）第一次效力

　　１．先履行方可中止履行合同，但应通知对方，并给对方一合理期限，使其恢复履行能力或提供适当的担保。中止履行既是行使权利的行为，又是合法的行为，当先履行方于履行期满不履行债务或迟延履行，并不构成违约。中止履行是暂停履行或延期履行，它并不同于解除合同，其目的不在于使既有合同关系消灭，而是维持合同关系。如果先履行方解除合同，则其行为构成违约，后履行方可要求其承担债务责任。先履行方中止履行，应当通知后履行方，通知方式以口头或书面形式均可。

　　２．在合理期限内，后履行方未提供担保且未恢复履行能力而要求对方履行的，先履行方可以拒绝。

　　３．在合理期限内，后履行方提供担保或恢复履行，先履行方应当继续履行合同。后履行方提供担保或恢复履行能力后，先履行方不再有对方不能给付的危险，因此应当恢复履行合同。

（二）第二次效力

如果合理期限届满，后履行方未提供适当担保且未恢复履行能力，则发生第二次效力，即先履行方可以解除合同。

责任编辑：吴俊

The right of defense to perform first, also known as the right of defense against unease, refers to the parties in a bilateral contract who should perform their debts first. If there is conclusive evidence to prove that the other party has seriously deteriorated business conditions, transferred property, evaded funds to evade debts, lost commercial reputation, or lost or may lose the ability to perform debts in other circumstances that endanger the realization of their own rights, they can suspend their performance, The right to terminate the contract if the other party fails to restore its ability to perform within a reasonable period of time and fails to provide appropriate guarantees. Therefore, the right to exercise defenses first has dual attributes of delay and elimination in the nature of defenses. China has established a system of first performance defense rights with Chinese characteristics based on its own national conditions, which is specifically reflected in China's first Contract Law. Below, I will conduct some superficial discussions from the following aspects.

1、 Applicable conditions for fulfilling the right of defense first

According to the theory of contract law in most civil law systems, there are generally four conditions for the application of the right of first performance defense:

（1） Due to the fact that the same bilateral contract bears mutual debts and there is a consideration relationship between the two debts. The right to exercise defenses first, like the right to exercise defenses simultaneously, can only occur in a bilateral contract. Therefore, both single party contracts and incomplete dual party contracts cannot generate the right of first performance defense.

（2） The dual performance contract applicable to the right of defense in advance belongs to different time performance. Heterogeneous performance refers to the chronological order in which both parties perform, that is, one party performs first and the other party performs later. According to the Contract Law of our country, for some sales contracts, unless otherwise specified by law, the principle of simultaneous performance is generally adopted. For some contracts such as leasing, contracting, storage, warehousing, commission, commission, intermediary, etc., the principle of performance at different times should generally be adopted.

（3） The debt of the first performing party has reached its repayment period. If the performance period is not reached, the first performing party can only temporarily suspend the preparation for performance and has no way to stop performance.

（4） The first performing party has conclusive evidence to prove that the second performing party has lost or may lose its ability to perform after the contract is established. It includes three elements:

1. The performing party loses or may lose its ability. According to the provisions of the Contract Law of our country, the reasons for the loss or possible loss of performance ability by the later performing party include: ① a significant decrease in property. Including deteriorating business conditions, transferring assets, evading funds to evade debts; ② Loss of commercial reputation; ③ In the contract for providing labor or completing work, the debtor loses the ability to work; ④ In the debt of paying a specific item, the specific item is lost; ⑤ Other situations.

2. The loss or potential loss of performance by the performing party occurs after the formation of the contract.

3. The first performing party bears the burden of proof for the facts. The first performing party claims the right of defense to perform first, and must have conclusive evidence that the other party has lost or may lose the ability to perform the debt, rather than relying on their own subjective speculation. Otherwise, one will bear the liability for breach of contract due to unauthorized termination of contract performance, thereby putting oneself in an extremely disadvantaged position.

2、 The effectiveness of exercising the right of defense first

After meeting the above conditions, one party to the contract gains the right of first performance defense. However, what impact will the first performance party have on both parties after obtaining this right? That is to say, the effectiveness of exercising the right of defense first.

（1） First effectiveness

1. The first party to perform may suspend the performance of the contract, but shall notify the other party and give them a reasonable period of time to restore their ability to perform or provide appropriate guarantees. Suspending performance is both an exercise of rights and a legal act. If the first performing party fails to perform the debt or delays performance at the end of the performance period, it does not constitute a breach of contract. Suspension of performance refers to the suspension or extension of performance, which is different from the termination of a contract. Its purpose is not to extinguish the existing contractual relationship, but to maintain the contractual relationship. If the first performing party terminates the contract, its behavior constitutes a breach of contract, and the second performing party may demand that it assume debt liability. If the first performing party suspends performance, it shall notify the second performing party, and the notification method may be oral or written.

If, within a reasonable period of time, the later performing party fails to provide guarantees and fails to restore its ability to perform and requests the other party to perform, the first performing party may refuse.

3. Within a reasonable period of time, if the later performing party provides guarantees or resumes performance, the first performing party shall continue to perform the contract. After the later performing party provides guarantees or restores its ability to perform, the first performing party no longer has the risk of the other party being unable to pay, and therefore should resume performance of the contract.

（2） Second effectiveness

If a reasonable period of time expires and the subsequent performing party fails to provide appropriate guarantees and restore its ability to perform, a second effect occurs, that is, the first performing party may terminate the contract.