Study On The Principle Of Good Faith In Civil And Commercial Law

The civil-commercial law at present has the trend of strengthening honest and trustworthy principle. Occupying leading status ,it becomes " emperor's clause " in civil-commercial law . Every national trader legislates and administration of justice have carried on extensive application to the honest and trustworthy principle. This paper uses the comparative law method , philosophy of law to compare china's understanding and development of the principle with the countries that belong to Continent legal family and Anglo-American legal family on the legislation and administration of justice. And contact our country reality at present, propose in legislate and administration of justice should suitable to apply the people commercial law honest and trustworthy principle widely.This text has four parts in all, every part's main content is as follows:First part. The definition of civil- commercial law's honest and trustworthy principle . The honest and trustworthy principle is understood differently in theory. But through overall materials collection and generalization of whole abstract, we can understand its spiritual essence still. In our country, the honest and trustworthy principle was introduced by foreign country as a legal term . Honesty and trustworthiness, in ancient times Germany, talked as an oath, played a role in guaranteeing traveling obligation. Later, the honest and trustworthy oath was transfered to using for expressing a basic principle of the civil law. Since the establishment of the honest and trustworthy principle in China's general rule of the civil law , the civil law circles have the following four kinds of views on its concept and nature." theory of semanteme ". " theory of the general clause ". "the theory of legislator's will ". " the theory of double function ". Four kinds of views announce honest and trustworthy principle's concept and nature from different angles and sides separately, each have its theory value.We can look for and hold the nature of the honest and trustworthy principle in the contract law from native and foreign countries's scholars's discussions. Formed by three respects mainly: First, from the psychological meaning of the morals, honest and trustworthy principle is determined by certain comprehensive social terms of society, for example, good will, sincere and fair and reasonable general morals psychology. Second, at the meaning, honest and trustworthy principle takes one regard morals as centre but has law force from legal norm. It is concerned person's and legal conscientious approval of code of conduct of standardization. It is a psychology request from object to subject. Third, at the aspect of practice, honest and trustworthy principle is all the behaves of concerned person and administration of justice.The honest and trustworthy principle has three major characteristics, supplementary and uncertainty and balance. It is one of the most remarkable characteristics of civil law to be supplementary. The honest and trustworthy principle is an abstract additional regulation. Uncertainty (elastic clause ) regulate insufficient function of remedying specifically but speech to their to law. Making the limited legal clause to play to the heaviest utility. Balance gives the judge the power, according to fair principle of justice , according to concrete special circumstances of case, to use the laws flexible.Second part. The introduction of the theory development of honest and trustworthy principle. Honest and trustworthy requires as a kind of morals of marketing , originally existed in the form of commercial habit . It requires people to have stress credit, pursue one's own interests in case of not harmful to interests of others among market activities. In a word, honest and trustworthy has went through 3 stages, Rome law , modern civil law and contemporary civil law. Continent legal family countries were the birthplace of honest and trustworthy principle. Italianscholar ,Jusep'koles, show initial production foundation and display form of it to us through Rome researc...