On The Unity Between Subjective And Objective Aspects Of Good Faith Principle

Good faith principle is the basic principle of civil law, the scholar of continent law call it as " emperor term ". This principle has been emboded in the general rule of civil law and contract law in the legislation of our country. But the research of our country of law circle for good faith principle is always with contract law for major visual angle.This paper thinks that good faith principle can be divided into objective and subject aspects unified . "goodwill" described in property law is subjective good faith actually, relative to the objective good faith in contract law, both is the relation of unity of opposite. Objective good faith is a kind of behavior duty; Subjective good faith is the main individual for that its behavior coincidence method restrains or has to join morals content believe. Objective good faith applies to contract law mainly, subjective good faith applies to property law mainly. In the legislative design of the future ceremony of civil law of our country ,definition of good faith principle should be conluded . This paper proves mainly from 4 aspects for above-mentioned basic viewpoint. Firstly , it begins from the investigation of development and definition of good faith principle . On the understanding for good faith principle , introduce and appraise the viewpoint that has representative fairly , such as subjective judgement, benefit balance , behavior rule , morals , undetermined or blank , etc.. These viewpoints from a certain angle have explained good faith principle on one hand , but could not summarize its meaning completely. This paper thinks: Good faith principle is the morals norm that forms in market economic , modern civil law has absorbed this morals idea, it denote everyone should be honest to keep promise , exercise right with the way of goodwill , perform duty , must not abuse right and avoid the stipulation of law or contract in order to maintain the benefit balance . It should contain the two aspects of subjective good faith and objective good faith, both is unity of opposite. Good faith principle has to establish code of conduct , balanced benifit as well as appoint judge the function that judg freely. In the theoretical research for good faith principle definition and development ,it is often confined to contract field, and very less and in property law. This paper thinks: Good faith principle and the subjective good faith should also apply to property law. Good faith principle is the both unity of opposites of subjective good faith and objective good faith. Secondly , elaborate the inner meaning of objective good faith and subjective good faith. Subjective good faith and objective good faith for cube now: Subjective good faith usually transforms , is a kind of legal psychological state that guided for the appointment of right because of this kind of good faith, if involved party has reached it, will get certain preferential treatment; And objective good faith adds with the lesson of duty, ask for feature and law with the name of good faith that this of involved party is so done , has no any arrangement of award if making. Scholar thinks , objective good faith is not the rule about the rightfulness of behavior of personalness, therefore the standard of objective good faith regardless of for what person, is unified; And subjective good faith has personalness,in another word, in specific feelings boundary behavior person whether have reached subjective good faith, to depend on case, is judged. However, two sincerities also have close connection. The subjective good faith of the involved party of one side comes from the objective good faith of the involved party of other places. Therefore subjective good faith is the another surface of objective good faith however. From function, two sincerities are unified , no matter objective good faith is still subjective good faith, has played the part to the stiff structure of code with the role of elasticity, it can meet code better to aim at the new reality of the unceasing change of adjustment if it causes to normal...