A Comparative Study On The Principle Of Good Faith

In international law,the principle of good faith is the basic principle of national communication,Constructing a community of human destiny requires all countries to uphold good faith and abide by it.State integrity is embodied in the behavior of specific subjects.In the field of international civil and commercial affairs,it is an important manifestation of building national mutual trust that civil and commercial subjects act in accordance with the principle of good faith.In comparative law,the principle of good faith is established directly or indirectly as the basic principle in private law of all countries and regions in the world.But at the same time,affected by economic,cultural and social factors of each country and region,the legislation and judicial application of the principle of good faith presents an unbalanced level of development objectively.At present,With the advance of the great cause of building the destiny community of mankind and the implementation of the "one belt and one road" initiative,the principle of good faith Urgently Need to be Constructed in International Civil and Commercial Activities.At the same time,Chinese civil legislation should realize the compilation of civil legislation through code compilation to supplement the system gap.but at present,the understanding and application of the principle of honesty and credit in our country cannot fully meet the requirements of the development of the new era.Therefore,it is of great significance to compare the principle of good faith between countries and regions by comparing different legal systems.The definition of the principle of good faith is the basis of systematic research.The principle of good faith is stipulated in civil law of most countries and regions,but its understanding is not the same.The function of the different understanding is limited.Based on analysis of different understandings,it is understood in various dimensions of history,society and reality.By comparing the etymology and different definitions of the principle of good faith in different legal systems,this paper points out that the connotation of the principle of good faith is "being faithful to facts,not harming others,taking into account the interests of others and society,and realizing the balance of interests".In view of the argument of"monarch clause" supporting and questioning the principle of good faith,it is put forward that "distinguishing function orientation and concrete function" is the key to understand "emperor clause".In essence,the understanding of the connotation and function of the principle of good faith is an interpretation of its proper value.The single perspective of scholars is replaced by The perspective of Western comprehensive jurisprudence.from the point of view of morality,sociology and ethics,the author makes a philosophical consideration of the principle of good faith,deepening the understanding of the essence of the principle of good faith,and further explaining the concept of principle of good faith.The principle of good faith has experienced initiation,establishment and development.Judging from the routine of historical development,good faith of Continental Law originates from Roman Law,In the middle ages,a variety of credit systems were extended,The principle of good faith was regarded as a standard of sin and non crime in Canon law,and established in modern French Civil Code which has been imitated and followed by civil law of different countries and regions in continent.The principle of good faith has been established as the basic principle in the Swiss Civil Code.The development of good faith in Anglo-American law,being closely related with Equity,The principle of good faith in legislation can be said to be a restatement of the principles already established in precedents and doctrines.The contemporary good faith of civil law has been evolved from passive restriction of autonomy of private law into active intervention of social life.It has also shown the tendency of strengthening protecting substantive justice,the expansion of application scope,unity of subjectivity and objectivity of judgment standards.The concept of the principle of good faith is abstract and general and its application might endanger the stability of law,thus regulation of application of good faith principle has been an important content of contemporary civil law.Firstly,In order to prevent judges from abusing of discretion,different types of good faith principles have been builded according to specific situations in the same sense.Relative to the value added method of abstraction,the typological application has bridged ion and concreteness.To enhance the certainty of judgment,the synergy of ideas of category and concept is needed to prevent absolution of the idea of category.Secondly,The judgement of interests in violation of the principle of good faith is limited by two aspects of entity and procedure,interest measurement has provided tool and method for application of good faith principle.Measuring heterogenous interests should be grounded in practices of cases.The value judgment of interest measurement should abide by the unification of positions of outsiders and legal personnel.Improving the procedure restriction mechanism like the expression of litigant,judicial neutrality will prevent preconceived conclusion of judgment.The principle of good faith,as a basic principle,has a issue of coordinating and conflicting with other principles.Regarding the diversification of regulations of basic principles of civil law by different countries and regions,it is extremely difficult to make complete comparison among the principles.Therefore,this thesis selects and compares those principles which has been commonly recognized and reflecting the most updated development trend of civil law.Through comparing good faith principle with autonomy of private law,the principle of public order and good custom,and green principle,the following perceptions have been reached:Legal principle is the embodiment of legal value and interest,The conflict between good faith principle and other principles is essentially the conflict between legitimate interest,the value of interest in essence conflicts.Therefore,the conflict between principles can not be applied to the exclusive rule of "all and nothing",Instead,we can only use the"value" method to choose the best position.Correcting the deviation of autonomy of private law by reason other than the principle of good faith is a trade-off between freedom and rational value,not a countervailing elimination.The violation of moral and ethical standards is reflected in the judgment of legal acts according to the principle of good faith and public order and good custom.Green principle,as a response to the environment issues of Chinese Civil Law,starts a new system of protecting biological environment by private law in the world.The recognition of conflict of interest between the principle of good faith and the principle of green will happen in the concurrence of private law and public law,the goal of good faith is the balance of personal interests by giving consideration to the interests of others and society,The green principle realizes the protection of the ecological environmental interests by minimizing the loss concept.in the light of extensive application of the principle of good faith,it is hard to discuss the detailed categorized application from all aspects.It is the main research method for scholars to choose different perspectives to discuss related issues.Through the discussion of the application of the principle of good faith in civil and commercial fields at home and abroad,we get the following understanding:(1)Whether the standard clauses exceed the autonomous boundary of private law or not,civil law of various countries has undergone the evolution from the principle of public order and good custom to the principle of good faith.To realize the contract justice of "insufficient agreement",we should examine the contents and procedures in order to realize the balance of interests and protect the disadvantaged group.(2)The understanding and application of the Principle of Good Faith is different between the domestic and WTO Law,the United Nations Convention on Contracts for the International Sale of Goods,Its application reveals the tradition of history and reality in the countries,But it has strong international law in international trade contacts.The interpretation of any domestic law can not dispel the purpose of promoting the unification and impartiality of international trade.