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On The Principle Of Good Faith In Civil Procedure Law

Posted on:2004-04-07Degree:MasterType:Thesis
Country:ChinaCandidate:F YangFull Text:PDF
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The principle of good faith originates from contract of utmost good faith and actio bona fidei under Roman Law. In an actio bona fidei, the judge may interfere the content of the contract according to the principle of justice and fairness and the sprit of good faith of the parties in the legal relationship. During the time of Roman Law, West Zhou and Tang dynasties of ancient China, some legal rules had already contained the sprit of good faith, In modern tune, the principle of good faith was the first one to be established as the basic principle of civil law. However, it is disputable to introduce it into the field of civil procedural law. The theory of negation insists that it is only a moral duty for the subjectivities of lawsuits to be in good faith, because the principle will seriously damage the debate principle and disposition principle of the civil procedural law. On the contrary, the theory of admitting regards the principle as a basic principle of private law, so that it shall dominate all jurisdictions and cannot be infringed by the parties for their own interests.When scholars are arguing about it, the article 138 of the Civil Procedural Law of Germany set up the true obligation for the parties, which marked the establishment of the principle of good faith. The development of the principle can be divided into two stages: the establishment of true obligation, and the appearance of coordination rule, which coordinates the action between the subjectivities of lawsuits and the judgment conduct.The understanding of the nature of the principle of good faith includes two theories: the semantic theory and the general terms theory. The good faith under civil procedural law means the courts of law, the parties, and other litigant participants must be fair, honest and virtual, when they are hearing cases orparticipate in legal actions. The principle of good faith involves the interest relationship between litigant participants, the same and the society, the same and judges, the society and judges. The principle aims to balancing the interests of them.The contemporary civil procedural law sets up the principle of good faith because of the following reasons: it possesses the characteristics, which the basic principle of the civil procedural law should have, and three functions, with which it can prevent the rights of action and trial from being abused, uniquely explain the statutory law, and supplement the missing meaning of it. The principle is the result of adjustment and influence by the concept of the rights in the standard of society and the idea of action. It is also the product of the supplementary between substantive laws and procedural laws.Here are the specific applications of the principle of good faith:1. The restraints towards the parties for its action behavior, including: a) the parties cannot use improper conducts to file a lawsuit with actual malice, b) they cannot abuse their rights of action and misrepresent before courts to influence its judgment, c) they will not lose their rights of action, and d) estoppel;2. The restraints towards the judges, including: a) judgescannot abuse their discretion, b) judges cannot rush to judgment, c) they must fulfill their duties of honestly examining the evidence;3. The restraints towards other litigant participants, includingthat witnesses, examiners, translators, and legal representatives must be in good faith when they are in action.The sprit of the principle of good faith was embodied in the existing civil procedural law. However, it hasn't been established as the basic principle yet. For a long time, the action mode of authority creed has been adopted in civil procedure,while the legislation and the theoretical circles don't pay enough attention to the principle of good faith. Compared to western countries, the existing system of civil procedure cannot effectively protect the right of action of the parties. Although we do not have the tradition of the rule of law, our culture of...
Keywords/Search Tags:good faith, the abuse of the right of action, true obligation, discretion, rush to judgment
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