The principle of good faith (PGF) is originally a definition in the field of personal law. The PGF was first established as an important principle regarding liability litigation in Roman laws, and widened itself later as a basic principle in the civil law. It is called "an imperial clause"by some scholars. Till the 1930s, the PGF made wider its existing space daily in order to adapt to the rapid changes and complexity of the society. This principle had considerable impact on the contents of the civil procedural law and had gained development in the discipline of civil procedural law. Presently increasingly more countries lay stress on the importance of the PGF in the civil procedural litigation and establish it as a basic principle in the civil procedural law. A general belief in the law field is that the PGF originated from the good faith agreement and good faith civil litigation in Roman laws. In the Roman laws, the jurist dealt with the case that ensued concerning the good faith agreement by the procedure of good faith civil litigation. In the civil procedural litigation process, the jurist will not be restrained by the literal meaning of the agreement,instead they could consider the details of a case carefully,use the PGF as the standard, then make a judgment properly based on fairness and justice of the spirit. However, in the Roman procedural system, apart from the good faith litigation, there were factual litigation and factual counterplea, brief litigation and brief counterplea, ordinary fraudulent counterplea, and arbitration litigation and goodwill and just litigation. The function of the modern PGF was undertaken by all these litigation systems in Roman laws. That is why we say that all these litigation system are precedents of the modern PGF. The principle of good faith originated from the Roman laws and was brought into the civil law as the Roman laws rejuvenated and developed in Europe. In recent years, PGF has been established as a basic principle of the civil code all over the world. Because PGF has two important functions –the demand on the litigant's good faith and trustworthiness and the judges'grant of free judicial discretion, both of which are demonstrated by the procedural litigation, and because material law and procedural law are similar to and infiltrate each other, the PGF is destined to become a basic principle in the civil law discipline. The principle of good faith in civil action means that the court,the litigant and other participants in the civil litigation must show justice, good faith and goodwill in taking the civil case and performing civil action. It demands that the court,the litigant should be in line with good faith and goodwill when performing the civil litigation action. In modem times,no matter which kind of civil litigation model, each entitles the judge commanding right and a certain amount of free judicial discretion, and the litigant, disposition right and benefit of argument to realize the goal of civil litigation; But as it often happens, there are judges who abuse their amount of free judicial discretion and litigants who abuse their civil litigation right in the practice of civil litigation. So these rights should be limited. Although these limitations should be backed by civil litigation rules, for one thing, due to the limitations of the statute, civil litigation rules cannot possibly contain all those acts in action with improper purposes that should be regularized. For another, these scattered rules in civil litigation action should be combined by a principle. All these rely on the principle of good faith for its accomplishment. In other words, the practice of civil litigation calls for the principle of good faith. Any law system holds in store the specified value that it is after,the soul of this value and its existing foundation lie in that they satisfy the needs of the people who are after this lawful value. The principle of good faith ensures in civil actions the realization of fairness and justice and the improvement of judicial efficiency by means of entitling and prescribing the judge's free judicial discretion and the right of interpretation and prohibiting the litigant's improper acts in action. This civil litigation value in the principle of good faith meets the need of the legal value which needs to give consideration to justice in procedure. The factual justice and the inner value of procedural justice that reside in PGF enable that it becomes a basic principle in civil litigation. The civil litigation needs the principle of good faith. In the 1930s, the revised German civil litigation (clause 1 of the 138th item) formulates:"The parties should state the real state of the fact,"which is called by scholar "the factual obligation。"This formulation is considered as one of the reflections of PGF. With the changing of our social life and the development of the civil litigation theories,the requirement made by different countries on the principle of good faith has not been limited to adjusting the parties'acts in action –"the factual obligation,"It has been developed from the requirement of the "factual obligation"to the coordination of the civil litigations'benefits among the main bodies of civil litigation. It has also raised itself to a basic principle in civil litigation. By the end of last century, the civil litigation in Korea and Japan had respectively established the principle of good faith. At this time the PGF had experienced development from the good faith judgment in Roman laws to the substantive law, and then it was expanded to the procedural law. It was entrusted with a new historical mission:"Nowadays,neither the theory nor the legal precedents will doubt the possibility of the principle of good faith; no one will deny the special existing value of PGF as a basic principle in civil litigation."There is no stipulation about PGF in the law regarding civil litigation in our country. Academic consideration concerning this field was also scarce in the past. This is because we, for a long time in history, exercise our functions and powers beyond office in civil litigation. At that time,the judge's freedom of judicial discretion, the parties'right of disposition, of argument, etc. were all put a limit to. The absence of legislation was not paid enough attention to. Now with the reform of trial model and the changes of civil litigation model,while the judge's freedom of judicial discretion and the parties'disposition right being bestowed, it is also required that the application of these rights be in conformity with the purpose of civil action,i.e. no abuse. Historical experience shows that litigant-orientedness has many shortcomings. It overstresses the parties'positiveness and the judges'negativeness to such an extent that it leads to delays of litigation action and unfairness, etc. Therefore, in the present conversion of litigation model, it is only sensible to summarize the experiences of legal reforms in other countries –to bestow parties adequate right of argument and disposition and to prevent the parties from abusing the right of litigation; to prohibit judges packed litigation and controlled judgment, and to grant them adequate freedom of judicial discretion and commanding right –only so can the purpose of civil litigation be attained and the modern judicial value of fairness and efficiency be better realized. In order to reach the above goal, the principle of good faith must be introduced to civil litigation. Civil action is a dynamic developing process, which is accomplished by different litigation procedures. Each procedure is again accomplished by individual civil litigation action. This purpose is achieved through adjusting and controlling the civil litigation action of civil litigation subjects,with the intention of adjusting the interests and rights and obligations among the civil litigation subjects for the embodiment of the value of civil litigation. The principle of good faith effects on the party in that it demands that the party must show good faith and goodwill in performing acts in action. Its concrete requirements are listed as follows: l) forbiddance of false statement in the civil litigation; 2) forbiddance of reverse speeches (or sarcasm); 3) forbiddance of forming a litigation state to one's own favor using improper ways; 4) forbiddance of abusing the civil litigation right and 5) forbiddance of the civil litigation fraud. To the court,the principle of good faith requires that the court be fair and reasonable when trying or judging civil cases. It is shown in the following ways: l) The judge should faithfully employ the freedom of judicial discretion; and the exercise of this right must be in accord with the requirement of the principle of good faith, and abusing the right is prohibited; 2) The judges should, being aware of the PGF, exercise the right of interpretation and fulfill the obligation of it with goodwill and fairness; 3) When distributing the burden of the proof,the judge should have a sense of good faith and goodwill and weigh the situation of individual cases based on the belief in fairness and justice,take into full consideration factors like the capability of the parties'providing proof, the value direction of material law so as to allocate the burden of proof. In the judicial practice,there are numerous cases violating the PGF in which the party abuses its civil litigation right and makes false statements, and the judges abuse the right of freedom of judicial discretion and make abrupt trials, the appearance of these behaviors is because of the lack of stipulation against violation of good faith behavior in the law concerning civil litigation in China. Especially there exists an ambiguity or even blankness about the responsibility system of the civil litigation. Burdenham, an American law scholar, said,"If a legal system has no punishing measures that can be implemented by force, it will be proved unable to limit the non-cooperative and anti-social crime factors,and then can't realize its basic function to maintain the order and the justice in the society. Therefore,in order that the PGF can be carried out and properly implemented in the law of civil litigation,we should establish a responsibility system to punish the actions that violates the principle of good faith in civil action. According to the different features of the responsibility in violating the principle of good faith in civil action,it can be divided into material legal liability and procedural legal liability in violating the PGF. It can ensure the carrying out and implementing of the principle of good faith in civil action by ascertaining where the legal responsibility lies and punishing the acts that violate the material law and procedure law. Professor Xu Guodong said,"Origin accounts for all."Although the PGF had its origin in the procedural law, and the features are concealed by the change of weight shift from the procedure law to the material law, they are in the end revealed. To sum up,the principle of good faith is a civil litigation issue at all times. The procedural law calls for the principle of good faith, and the judicial practice in modem times needs it. We expect the principle of good faith will be established in the civil procedural law in future.
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