The Judicial Application Dilemma and Solution Path of the Right of Anticipatory Defense—Taking the Contractual Agreement of “Invoice First, Payment Later” as an Example

“先开票后付款”的约定常见于商事交易中，该约定在司法实践中存在被架空的现象。纠纷发生时付款义务人基于该条款提出先履行抗辩权是否成立在司法实践中存在分歧，案由的差异也影响到此类抗辩权的认定。该约定是当事人意思自治的结果，并未违反法律法规的强制性规定，当事人基于该约定主张的先履行抗辩权理应得到法院的尊重，法院在认定时也应当综合案件实际情况而非仅依照对待给付原则予以驳回。The agreement of “issuing invoice first and then making payment” is common in commercial transactions. However, in judicial practice, this agreement is often circumvented. There are differences in judicial practice regarding whether the payer can raise the defense of prior performance based on this clause when disputes arise. The difference in case causes also affects the determination of such defense rights. This agreement is the result of the parties’ autonomy of will and does not violate the mandatory provisions of laws and regulations. The defense of prior performance claimed by the parties based on this agreement should be respected by the court. When determining it, the court should also consider the actual situation of the case comprehensively rather than simply reject it based on the principle of reciprocal performance.