On Good Faith Principle's Establishment And Application In China Civil Litigation

In this paper, the author takes the comparison inspection about the principle of good faith between the continental legal system and the Anglo-American legal system, and takes the comparison inspection on the historical point of view. Secondly, the paper integrates theory with practice, and uses the legislative and a judicative experiences on civil procedural law in other countries and Taiwan District for reference, absorbs recent theoretical findings by both domestic and foreign academic in civil procedural law. The principle of good faith has been established as a empire provision of the civil code all over the world, and it is strictly observed in the course of people exercising their civil rights and performing their obligations. With the birth of cooperative pattern of litigation, many countries have also started to introduce the principle of good faith into their civil procedure laws. In fact the" principle" has presently penetrated into every stage of the procedure of civil lawsuit in each market-economy-dominated society.In view of our percent judicial practice, the abusing of litigation rights is a significant theory and practice issue in Chinese civil procedure. In addition, in order to entitle the judges the right of free judgment, and to restrict their judge discretions. Thus, there is urgent realistic meaning and profound theoretical meaning in the research of this paper. This article comprises four chapters to research the related questions mentioned above.In the first part, the author analyzes the differences between good faith in moral to good faith in law, and differences between the principle of good faith in civil law to the principle of good faith in civil procedure law.In the second part, as the related question has been a focus which attracts many experts and scholars, the author summarizes current situations of the questions in China and abroad, and discusses the researches made by scholars at home and abroad on whether the civil procedural law should establish the good faith principle.In the third part, the author discusses the importance and necessity of application of the principle of good faith in Chinese civil procedure law. Firstly, from the unique functions and value of good faith, the principle of good faith should be established to make the written law, to prevent the abusiveness of litigation fights, to entitle the judges the right of free judgment, and so on. Secondly, it can firmly ensure the effective power of court judgments. Thirdly, it plays an adjusting role and compensates the imperfectness of the other principles, and combines the other principles of our civil procedure law into a whole and coordinate system in a practical way.In the fourth part, the author studied the concrete application of good faith in Chinese civil procedure law. Firstly, the author studied the sphere of the application of the principle of good faith-the subject and the expression of the principle. Secondly, the author analyzes above-motioned problem in three respects. As to the civil litigants, the author thinks, "Real Duty" should be built up in the civil suiting legislation as soon as possible, including related regulations on compensating the losers because of the abuse of the rights. As for the other litigant participants, this paper emphasizes restricting the witness faithfully to promise, honestly demonstrate the truth and loyally fulfill the duty of presenting written statements and their presence at the court. As to people's court or a judge, it should to rule on the law and the facts according to the principle of good faith.Therefore, it is concluded that the principle of good faith should be explicitly stipulated in civil procedure law in our country. The judicial practice in modern times needs it, both social development and a harmonious society require it, all in all, the procedural law calls for it.