On Good Faith Principle In Civil Litigation

Good faith~1 principle may trace to its historical source both in China and foreign countries.It is commonly believed among scholars that good faith principle originates from "general malicious defense" and "good faith contract".There is no legal concept in Anglo-American law system of the same meaning with "bona fide"~2 in Roman law.Therefore, "good faith" is usually used in Anglo-American law system when the similar concept is needed.From the prospective of the source,good faith principle is characterized by both moral and legal norms.The development of the principle mainly has such four stages as Roman law stage,medieval stage,modern stage and contemporary stage and finally set its place as "empire provision" in modern civil law.In China,the concept of "Cheng Xin" in Chinese(good faith in English) has a long history,too."Cheng Xin" has been considerably found in ancient Chinese books and records. It is commonly believed by scholars that Cheng Xin in ancient China never got rid fundamentally of the restrictions of "family","affection between family members","personal loyalty" and "acquaintance".Generally speaking,on one hand,good faith principle discussed in the theoretical field of laws in China at present mainly refers to bona fide principle originated from Roman law of continental law system;on the other hand,honesty and credit has been an integral part and existed only as a part of the traditional Confucian moral system for thousands of years in Chinese history.In the whole system of Confucianism,honesty and credit did not have a dominant position.Moreover,honesty and credit was not always attached great importance to in litigation and there were no high mandatory requirements for honesty and credit whether in legal system or in public opinion during the trial by officers on behalf of the state power.The bona fide principle in continental law system has been an important fundamental principle in the legal system of China.It is believed by the overwhelming majority of scholars that bona fide or good faith principle is the "empire provision" in China's civil law.As for good faith principle,there generally exist several doctrines:"semantic theory","general clause theory","legislators' will theory","dual function theory" and "mixed theory".Roman law gestated good faith principle in private law.Roman law is a combination of all laws and the characteristic of confusion between procedure law and substantive law directly leads to the fact that rights and remedies for rights cannot be separated from each other in Roman law times.Good faith principle in Roman law not only balanced various interests of civil subjects but regulated civil litigations classified into the scope of public law later.With the constant development of social economy,public law gradually tends to make up for its deficiency with some principles in private law.There also exists a problem spraddling between public law and private law as for good faith principle.Good faith is applicable to civil and commercial law as well as to public law.The establishment and application of good faith principle in public law is a kind of regress rather than expansion.There are two different viewpoitns as for the application of good faith principle in civil procedure law:pros and cons.Debate between establishment and repeal of good faith principle is much more a reflection of the surface phenomenon and the deep-seated proposition behind the debate is the harmony and integration of relationships between the good faith principle and parties' obligation of being truthful,between the good faith principle and the adversary proceeding.The main embodiment of good faith principle in civil procedure law of countries of civil law system is the obligation of being truthful.There has been a controversy over the obligation of being truthful ever since its birth.Essentially speaking,the obligation of being truthful is in conflict with the traditional litigation mode of adversarial system.If settlement of disputes by absolute and pure adversarial system is overemphasized in civil action,the basis of application of good faith principle does not exist any more.Through analysis of adversarial system~3 and inquisitorial system~4,it is found that countries of civil law system mainly adopt inquisitorial system so the conflict between adversarial system in civil procedure and good faith system is impossible to occur in civil law countries.Correspondingly,as for Anglo-American countries adopting adversarial system, there is not a concept of exactly the same meaning as bona fide in their legal thoughts and the aforesaid conflict has no basis of existence in Anglo-American countries. In China,inquisitorial system had always been the guideline by 1990s.After 1990s,an unprecedented reform of civil judicial system,the goal of which is to establish adversarial system as a guideline,was launched in civil procedure circle.The conflict between good faith principle and adversarial system exploded during the settlement of disputes in China at the turn of the century.As far as China's social reality concerned at present,good faith is much more feasible and has better social basis in respecting parties as subjects in civil proceedings than inquisitorial system.Replacing adversarial system with the concept of "good faith" may cause regulations too emphasized on principle without feasibility,almost having the suspicion of retrogression by replacing ruling by law with ruling by man.The feasibility of a legal principle and the suspicion of "ruling by man" depends on whether the said principle is in accordance with laws and even social and cultural tradition of the country or region as well as on whether there is sound matching systems supporting and guaranteeing the principle.China's traditional honesty and credit is of more moral nature in practice than that of western countries,In recent years,China's traditional honesty and credit was widely criticized by theoretical scholars of laws because of this nature.However,it should be noticed that the traditional honesty and credit of ancient China which is considered very primitive and unprogressive today may greatly contribute to the settlement of disputes whenever applied to judicial practice under certain historical circumstances.Excluding social and historical conditions which have changed,the honesty and credit in traditional morality may give enlightenment to settlement of social civil disputes in modern China."Ma Xiwu's trial mode" which was widely applied in revolutionary bases during the new-democratic revolution also contained rich elements of good faith.And these traditional legal culture and ideas are exactly the good faith principle in China's traditional morality.As for China,it is doomed to failure to learn inquisitorial system of western developed countries blindly by means of "a brand new start after denying all the existing ones" without taking China's specific national conditions into consideration and without the support and safeguard of corresponding legal and cultural tradition.Moreover,we cannot afford the high cost needed by this kind of reform.In the past ten years,it seems that western developed countries' experience was worshiped blindly.Through a comparison between Ma Xiwu's trial mode with Civil Procedure Law of the National Government,more emphasis should be attached on "making the past serve the present" and a relative prudent attitude should be maintained as for "making foreign things serve China" when making a comparison or choice between the two aforesaid dispute settlement modes.It is necessary to establish good faith principle in China's civil procedure system as required by maturity of right protection system,current situation of civil judicial environment, realization of functions of civil litigation and judicial practice.The fundamental meaning of establishing good faith principle in the civil procedure system of China lies in bridging a transformational mechanism between western legal ideas and Chinese traditional legal culture.The biggest restriction element of establishing good faith principle in China's civil procedure system lies in the formation of the concept "good faith" and establishment of credit system throughout the society.The other restriction element in establishing good faith principle in civil procedure system is the every issue needing to be settled by applying good faith principle.How to apply good faith principle correctly as an efficient restriction of abuse of power or of right by judges or other litigant participants is an important restriction element of establishing good faith principle in civil procedure system nowadays in China.Moreover,faced with different civil disputes,how much and how deep good faith principle should be implemented is another important factor of establishing good faith in civil procedure law.Good faith principle shall be applicable to all litigant subjects,including judges,parties and other litigant participants(including clerks,witnesses,expert witnesses,interpreters and agents).Good faith principle shall be applicable in the whole proceeding from filing a suit to execution of a judgment.However,as for different subjects,regions and cases,the application of good faith principle is different.As far as judges are concerned,application of good faith in civil procedure law mainly lies in their discretion on some procedural issues and more in some trivial details.One important question is that during the process of the formation of open evaluation of evidence through inner conviction,avoiding surprise judgment is essentially a kind of interpretation or explanation by judges to parties.According to requirement of good faith litigation for judges, judges should give interpretations under special circumstances;in this sense,interpretation is judges' obligation.Through prescribing the interpretation obligation,on one hand,discretion of judges may be restricted effectively;on the other hand,parties,especially the weak ones are provided with adequate procedural protection in participating in litigation and the difference of defense and offence abilities between parties is diminished.Judicial activism~5 should be a higher-level representation form of judges' good faith. The core of judicial activism lies in system arrangement of judges' discretion while the essence of good faith litigation lies exactly in grant of discretion to judges.Judges' discretion becomes the connection point of logic relationship between judicial activism and good faith litigation.The key to judges' judicial activism lies in judges' honest personality.In recent years,China's judges brought judicial activism into full play and made their contributions to harmonious development of the society.However,taking the current situation into consideration,China's judicial activism leaves a lot to be desired whether in its own development or its application in proceedings.The lack of good faith has been the first and the biggest obstacle to the development of China's judicial activism.That is,good faith provides a dependable "safety valve" for judicial activism of judges.As for judge team and judge quality construction,"demobilized soldiers in the courts" severely has been eased to some extent.As a matter of fact,with the increase of college and university graduates majoring in laws and the establishment of judicial examination system, college and university graduates has been the main source of workers in many courts.In the process of judge quality and team construction,two factors should be considered:one is the optimization allocation of judicial resources and the other is the judges' continued learning.Good faith principle should have different requirements for judges and parties.The essence of good faith for parties is to prevent parties from abusing litigant right.However, abuse of litigant right by parties should be analyzed objectively too.Abuse of litigant right by parties can be divided into two categories:one is real "malicious abuse" and the other should be called "unintentional abuse".The real problem that good faith of parties should and could solve is the first category:malicious abuse of litigant right.Obligation of being truthful may play an important role in correcting and preventing the abuse of litigant right by parties and the key point is guarantee mechanism for performance of obligation of being truthful.Taking civil litigants' role as market entities into consideration,it is impossible to set down the same requirements of moral regulations for parties as for judges and lawyers and the protection system should be emphasized.It is believed that system design may be conducted in terms of sanction and prevention.Cooperation pattern of civil litigation has been a hot issue widely discussed by the circle of civil procedure law.Xiao Yang,ex-president of the Supreme People's Court,put forward a brand new concept "harmonious litigation".Proved through practice,both adversarial system and inquisitorial system has had obvious questions.And cooperation pattern as a compromise is undoubtedly the only choice at the present stage.Harmonious litigation with good faith as the guild is undoubtedly the final choice of China's civil litigant pattern.Lawyers,because of its legal nature and marketability,accompanied with characteristics of this trade and ever-increasingly fierce competition,Lawyers' disobedience to good faith principle is likely to spread in the lawyer trade.Good faith construction of lawyers lies in,just like judges' good faith,improvement of personal qualities of lawyers themselves and perfection of morality in the long run.However,in view of shortage of system building of lawyers' good faith,it is necessary to discuss it here.On one hand,disciplinary punishment system of lawyers should be further consummated.On the other hand,the bar association and law firms should strengthen daily regulation of lawyers.Autonomy of lawyers is not suitable for today's China.And as for the relationship between lawyers and judges,Taking China's national conditions into consideration,dealing with relationship between lawyers and judges nowadays should stick to good faith principle for mutual respect,mutual communication and cooperation between them.Cooperation pattern of litigation is also the ideal state of their relationship.Under such a pattern,it is much easier for lawyers and judges to communicate with each other.On the other hand,the decrease of profits is bound to curb,to some extent, the development of lawyer trade in litigation.However,judges and lawyers undoubtedly play a role in guiding and setting an example for the establishment and maintenance of social good faith system.