The Definition On Good Faith In Chinese Civil Law

A concept can be divided into two different parts by the sphere it applies: common concept and the terminology in academic research. But there are some which have been used in academic research and daily life in the same way. If the content of a concept always remain the same, mistakes will not emerge. However once its meaning has a slightly change, it is necessary to tell them apart seriously. The concept of good faith in Chinese civil law is a good example of the later type. This paper is just a research based on good faith's different usage in different sphere, so as to clarify its meaning and scope in civil law. The whole article is composed of five different parts:The first part of the paper will answer the question of why do we define good faith in civil law, that is to say, the necessities and the reasons. Each terminology in civil law has the function of recognizing, storing, and expressing certain value that the law has to protect. Following above course, it becomes a part of culture of law, to lessen the burden of the following learners who wanted to express that value, to saving these avoidable persuading works. From the view of this point, the original concept of good faith in civil law has two meanings; they have some differences in the way of definition, the core of evaluation, and the requirement of benefiting others. But all these differences did not draw sufficient attention of researchers. They use these two meanings alternately. So the good faith can not fulfill the above functions effectively. We can attribute all these problems to the lacking of common sense on good faith.The second part is to solve the problem of how to define good faith, that is to say, the way or the method. It is a course of excavating and exploring the common sense on which the good faith based when it has been cited in the law. In the following analysis, we will set the good faith purchase and good faith possession as sample, trace their developing history from its original recognition to the final agreement. With this clue in hand, we can see that there is no good faith's effect in transferring ownership in Roman law, but in the prescription acquisition, good faith begin to shed its influence. As the embryonic form of good faith acquisition, hand muss hand wahren, initially come into been without the factor of good faith. Although in the France civil code, the embryonic form good faith purchase has stipulated this system in the approach of protecting possession. The good faith do not attached to the good faith purchase until the German civil code. Only then can we find the requirement good faith as a composition of this special form of ownership acquisition. Those civil law codes of Swiss, Japan, as well as the civil law in the area of Taiwan, did not adopt or follow the Germany's approach. They did not achieve their agreement on good faith acquisition's place in the civil law system; meanwhile, different region has given their different reasons for how good faith shed its effect in the related rules. From the whole course that unfold before us, we can draw a conclusion that nearly all the nations have used this terminology though their different places in their civil law codes and their different characters. They have confirmed the core factor of good faith, even if they do not give good faith an uniform and acceptable definition.In the third part, we will talk about the connotation of good faith thoroughly. In ancient China, the ruler have stipulated that if a person did not know something that he would not assume the corresponding obligations for the action based on that information. Follow the traditions above, the modern civil law has regulated a nature person's legal capacity and his responsibilities. From the point of this view, each nation has recognized that unknown is good faith, not only in their research but also in their legislations. The core dispute on good faith is its relationship between faults. After finding out their similarities, we conclude that to find out the parties fault is an important step to define his good faith because they share the same state of mind. As to the motivation factors, we maintain that the unknown state of mind can cover the good faith's meaning that a person dose not has the harmful or illegal motivation. In the defining course, the motivation factors will go against the basic premise of a nature person in the civil law, and the result will be misled seriously by the judge's subjective mood. All these are unwelcome in the application of the law.The main points of the forth part are about the range of good faith in civil law. In this part, we will discuss its similarities and differences between those related definitions such as bona fidies, mala fidies, and reliance ect. Generally speaking, good faith has its specific function in the civil law, and can not be replaced by bone fidies principle totally. Compared with mala fidies, good faith must change its original meanings into the unknown state of recognition, so as to matching the mala fidies properly. By telling the differences between good faith and reliance, we insist that good faith is the premise state of reliance interest protecting, and reliance interest protecting is more objective while good faith is a tool by which the judge can cognition a person's state of mind.After the rethinking course of its connation, in the last part, we will have a scan of the good faith's function in the civil law. In the academic circles, there are some scholars who insisted that there's little or no use of good faith in the civil law system. As a reply to those statements, we maintain that, good faith is just the institution used to balance the interest of protecting one's liberty and the other's ownerships. Though it can not play the same role as some scholar stated, good faith is still a core factor in good faith acquisition. Good faith can not benefit a person by increase his property, but it can avoid his loss in some special cases.