Research On The Principle Of Good Faith In Administrative Law

The principle of Good Faith is one of basic principles in civil law. It has derived from bonae fidei iudica in the original Roman law and has experienced long time development; it's getting more and more important, and nowadays it has taken the supreme position in civil law field. However, in modern times, especially for almost century, the good faith principle has begun to expend its power or influence on public law field, and has been confirmed by public law and law departments in the legislation and judicial precedent in many countries and areas; especially in administrative legal system, it has been widely acknowledged and accepted; at the same time, the viewpoint, that the good faith principle should be one of the basic principles of administrative law, has been accepted by more and more scholars. This legal phenomenon and theory has produced a great impact and challenge on traditional legal theory, especially on public law theory, and led to a heated argument. This article shall, aiming at the controversy caused by the legal practice, analyze and study the issues which centers on whether the good faith principle shall get in public law and become one of the basic principles of administrative law.The entire text divides into five chapters.Chapter one is introduction. It presents many countries'legal practice in bringing the good faith principle of administrative law into effect and points out that this is the legal issue which is actuated and promoted by legal practice, and it simply analyzes some major academic standpoints around the issue. It raises some innovative points in the article and possible ways of researches based on the summary of current study status.In chapter two, the author introduces the general theory of the good faith principle in administrative law and its meaning and content are to be explored. With the commonness of public law and private law as the premise, borrowing the ideas from the good faith principle in civil law, the good faith principle in administrative law can be expressed as: for the purpose of realizing public interests and safeguarding the people's legitimate rights and interests, the subject of rights or the main power body shall exercise its rights or power and perform its obligations based on good faith or goodwill. Its essential requirements are the same as the ones of the principle of good faith in private law, including such three aspects as goodwill, credit and balance of interests. But the public law makes its specific content different from one of private law due to its particularity. The nature of the good faith principle in administrative law is to restrict public power, its function of limiting the purpose and direction of public power has resolved the problem that other principles of public law are powerlessly to adjust public power, and it makes public power more positively and effectively & flexibly controlled. The principle of good faith in administrative law, similarly under the certain history condition and meeting the requirement of social reality, arises timely as the legal regulator of limiting public power, just like it in private law. And in like manner, because the feature of flexibility and the theoretic quality of recipience of the good faith principle meet the requirements of administrative law dealing with the challenge of social development and the changing of public power, and make its status as the basic principle more stable, it more and more shows magnificent power of justice in the sweep of history. The good faith principle in administrative law is different from the one in private law, they have different features: firstly, the moral foundation of the good faith principle in administrative law is political ethics; secondly, subjective credit plays an irreplaceable role in the good faith principle of administrative law and the good faith principle has its own purposefulness; thirdly, public power is the important aspect which the good faith principle of administrative law adjusts and the good faith principle of administrative law shows its characteristic of asymmetry; fourthly, the benefit orientations of the good faith principle in administrative law and in private law are different; fifthly, the subject and scope of application of the good faith principle in administrative law and in private law are different. The good faith principle of administrative law is also different from credit protection principle of administration, and the two have some difference in nature, protected benefit, subject of application, scope of application, mechanism of action, the regulating object and function, thus, the author thinks that the credit protection in administrative law is just a specific rule under the requirement of the good faith principle, and it can not fully realize the value and the function of the principle of good faith. So the principle of good faith should be directly brought into administrative law.Chapter three mainly discusses the question of the justice of establishing the good faith principle in administrative law. This is the key question that makes the good faith principle get into the public law and become one of the basic principles of administrative law. This article seeks the foundation from the two aspects of theory and practice, and analyzes the inevitability, according to the particularity of administrative law, that the good faith principle was originated from administrative law in early time. The author thinks that, theoretically, social contract, administrative ethics and constitutionalism provides important support for the good faith principle of administrative law. Firstly, in social contract theory, people transfer part of the natural rights to government, and under such authorization, government shall be responsible for protecting the safety of people's lives and property, maintaining public order and realizing public interests, etc. By establishing such relationship between government and people, it is determined that government must be loyal to the people, be honest and be commitment-minded, so as to acquire the support and trust from the people, otherwise it is against the contract, the people shall announce to bring back their rights transferred to government and take away its power. It is clear that government shall abide by the ideas of good faith and goodwill to conduct its administration, and this should be an inner meaning of social contract. Secondly, according to the theory of administrative ethics, good faith undoubtedly plays a basic role in the genealogy of government's morality. If a government doesn't possesses the quality of good faith, people shall not believe that it can hold such qualities as goodness, fairness and justice, etc., not believe that it shall fearlessly undertake its duty, conscience and responsibilities to the society and people, and it can genuinely experience the honor and the happiness arising from such qualities. Last, constitutionalism provides the strong support for the establishment of the good faith principle: limited government and fundamental rights protection are the two basic aspects of constitutionalism: the nature that good faith principle restricts public power has the high degree of unity with the content that constitutionalism limits the government power; the assertion of interest balance of good faith principle,to the great extent, has made personal interest guarded and protected and realized the constitutional ideas. In practice, change of eras, transformation of state function and government executive experience all provide a firm practice foundation for the establishing of good faith principle of administrative law. The good faith principle finds its origin in administrative law, and it has deep inner link with the particularity of administrative law. As aforementioned, the essence of good faith principle of administrative law rests in the restriction of public power. And the characteristics of administrative power determine that it needs being controlled more than other power. Moreover, the particularity of administrative law's adjusting objects, administrative discretionary power which now broadly existed in administrative field and equal-rights administrative legal relation represented by administrative contract all make administrative law become the hothouse of good faith principle and make administrative law become main public law which applies good faith principle.Chapter four,starting with the government credit, positively studies the issue of specific application of good faith principle of administrative law in our country. The article analyzes the reasons of lack of government credit from the aspects of economy, politics and culture, and on this basis, it puts forward the idea about building of the government credit. The author thinks that the government credit has the most substantial meaning and important practical significance in the specific application of good faith principle in administrative law. With the background of building a harmonious socialist society in our country, it seems more important and urgent. Harmonious society does not mean there is no conflict of interests at all, and it has the ability to resolve the conflict of interests. The state and the government are the important force of interest coordination, and their main function is to control the conflict between groups, hierarchies or other interest subjects, realizing interest coordination in the society. The important significance of government credit is that, in the process of coordinating the conflict between public and individual interests, government emphasizes how it focuses on individual interests, and it has to give sufficient respect and protection to individual interests, especially paying attention to the need and feeling of individuals of the interests. The theory of government credit requires that government, on the relationship between government and civics, shall take civics as basis, and hold the stand that civic interests and needs occupy the basic and crucial position in the social public administration. Government shall make individual interests protected. The target of building government credit is to set up the image of sincere government, and sincere government must be a service oriented government, legal government and responsible government, and it cares for people. The proposals on the building of government credit system are as follows: firstly, drawing up the law on the disclosure of government information, and making the running of governments more transparent; secondly, defining the responsibilities of compensation caused by government dishonesty; thirdly, completing the supervision and restriction mechanism on government credit; fourthly, establishing civil servants'properties declaration system and promoting anti-corruption and integrity.On the theoretical premise of homogeneity of public law, Chapter five pays attention to the tendency of good faith principle expanding its influence on public law. According to the division between public law and private law in the continental law system, constitutional law, criminal law and procedural law all belong to public law. Because the good faith principle has been confirmed in the civil procedure legislation in some main continental law countries, and common law countries also establish the rule system of Estoppel through precedents, the expanding of the good faith principle on other departments of public law has been effectively pushed forward. The author, on the basis of other relevant academic study, explores tentatively the possibility of the application of the good faith principle in other department laws, briefly analyzes the basis of the application of it in other department laws, the relationship between the good faith principle and other principles of department laws and the specific embodiment of the good faith principle in department laws, so as to learn and grasp the trend of the development of the good faith principle in public law.