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Judicial Application Of The Principle Of Honesty And Good Faith In Civil Procedure

Posted on:2014-06-16Degree:MasterType:Thesis
Country:ChinaCandidate:L L XiangFull Text:PDF
GTID:2296330431488295Subject:Litigation
Abstract/Summary:PDF Full Text Request
The principle of honesty and good faith used to be ethical principle, later was introduced into the legal system and became a legal principle. It was first validated in obligation law in modern times,then was promoted to be a fundamental principle of private law by Switzerland Civil Code in1907and finally reached the empyrean of civil law. From the20th Century on, the principle of honesty and good faith gradually expended to the realm of public law, and turned into a imperial clause ultimately. A few countries and regions have confirmed the principle of honesty and good faith in civil procedure law,and the latest revision of civil procedure law in our country has already affimed it,too. However, the real challenge is still waiting for us. How to apply the principle to the judicial practice in case that it become watchphrase, is one of the difficult problems we have to face, which relates to studies of its essential meaning and bases, its application scope and the construction of specific systems and so on.The basis spirit of principle of honesty and good faith is equity and fairness, requiring the parties to institute civil proceeding in good faith and not to abuse the prucedural rights and not to be beggars. It bases on the changes of lawsuit thought and litigation mode, on the mutual interation between private law and public law, on the close relationships between civil law and civil procedure law, and on the demand of responding flexibly to changes in social life. It relies on the realitstie as well of bad faith litigation phenomena and terrible credit environment which is in urgent need to improve. Bad faith litigation actions not only do great harm to procedure itself and its result, but also reduce the authority and credibility of the Court, and further deteriorate the credit environment in China.The principle of honesty and good faith mainly applies to litigants. The special rules on one hand require legants to fulfill real obligation and litigation-promoting obligation, on the other hand prohibit maliciously bringing about favorable litigation status and misusing procedural rights as well as estoppel. There are many deficiencies in specific rules of civil procedural law in our country, like real obligation, estoppel and proof-hindering system. When directly applying the principle of honesty and good faith in civil procedure, the judge should not contradict the general principles of the legal order, but shall follow the requirements of due process. The judge shall strengthen the judgement’s legitimacy bases through measuring interests among different subjects and arguing and reasoning amply.
Keywords/Search Tags:The principle of honesty and good faith in civil procedure, Judicialpractice, Application scope, specific system
PDF Full Text Request
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