Correction Of The Principle Of Good Faith

Since the promulgation of Swiss Code Civil in the 20th century, as an important basic principle of civil law, good faith has been applied to civil law universally. The continental law system countries have not only theoretically conducted the deeply systematical research good faith, but also put the good faith into practice to standardize and revise the contract; to explain and supplement law; even to carry on the revision to the law system. Our country academic world has also been greatly interested in the good faith, and has obtained some important research results. However, we have not made fully induction on the good faith's sources, functions, even the types and specific applications in the civil law. We still need to conduct more thorough research and probation to good faith. The author chooses the revision function of the good faith as the topic, expecting to carry on more thorough research on the revision function of the good faithThis article, except the introduction, the conclusion, consists of four parts, approximately 30,000 characters altogether.The first part mainly introduces basic theories of the good faith's revision function, especially the preliminary introduction and research on the essence and function of the good faith. The author believes that the good faith's essence should come up the understanding from three levels: first, from the "to be" level, the good faith is the embodiment of natural law; is judicial evaluating criteria of the solid law; Second, from the "should be" level, the good faith is the equity of solid law; is one kind of obligatory law standard; Third, from the judicial initiative, the good faith's essence is to entrust judge with free jurisdiction. With regard to the good faith's function, as the author believes, it is mainly composed of the function of behavior criterion, the function of explaining, supplementing or appraising legal act, and the function of supplementing law, but in the academic world, the argument on the revision function of the good faith lies in the balance between the legal stability and the case just value, involved in the relational question between legislation and judicature. The second part mainly combs the evolution of the continental law system countries' legislation-judicature relation. Discussion about the relation of legislation-judicature, in the continental law system countries, is always quite a warm question. In the 19th century, the continental law system countries' legislation-judicature relations mainly inherited the strict laws in Roman times. In this period, the judge's authority, in continental law system countries, was strictly limited in merely "declare the law", and was "the mouthpiece of the law". Judge's function of creating law and developing the law was severely prohibited. In 20th century, due to political reasons, economical effects and ideological change, judges, in continental law system countries, started to own the authority of free jurisdiction, even the power of creating the law. But, during this period, judge still was legislation's indispensable assistant. The author believes that, along with two big legal system gradual exchanges and fusion, as well as the development of social economy and politics, continental law system countries' judges must inevitably own the authority to establish the law.The third part mainly introduces the good faith's revision function in the German law. The German Supreme Court establishes the good faith through the massive legal precedents to revise lack of way' effectiveness, and proposes the judgment formula. But the German academic world thinks the German Supreme Court's opinion does not simply have any proof value, therefore the German academic world induces the German Supreme Court's legal precedents and classifies them, and proposes essential testing factors for applying the honest credit principle's revision function.The fourth part mainly focuses on how to construct the system of revision function in our country. The author mainly proves that it is essential to establish good faith's revision function in many aspects, such as, our country's social development, legal limitation, relation between legal stability and legal flexibility, goals of legislation and judicature, essences of good faith and so on. Moreover, the author also proposed the institutional safeguard and reasonable limit on applying good faith. Regarding good faith's revision function examination essential factor, the author believed that, first, trusts the human good intentions also does not have the error, second, trusts the human the relative person subjectively to have the evil intention, third, trusts the human to suffer the heavy loss, fouth, the law stipulated the request power foundation to trusts the loss which the human suffers to be unable to provide the effective relief. In the institutional safeguard, the author believes that, first, the good faith's revision function power must be enjoyed by the Supreme People's Court; second, judge's trial independence must be guaranteed; third, so long as judge makes judgment according to the innermost feelings of good-intentioned equity, judge must take no trial responsibility. In the suitable limit, author believes that, first, collegial bench, when it applies the good faith to settling a lawsuit, must obtain the consensus; second, in the way of legal explanation, the judge may apply good faith's revision function unless he exhausts all explanatory methods but not to protect litigant's benefits effectively. Third, we must establish the system in which the judgment of the court should be open to the public.