Research On Judicial Application Of The Principle Of Good Faith

The principle of good faith, originating in ancient Rome as a form of action at the earliest, develops gradually into a legal principle and occurs increasingly in judicial application, which becomes the focus of both theoretical and practical circles. For the interpretation of principle of good faith there has been various theories during its development and in China this principle is usually interpreted in general clause theory because of the inheritance of the Civil Law System tradition and certain impact of Japan and Germany.In spite of the difference of provisions and legislative forms in Civil Law System, Common Law System and our Chinese laws, the content and application of the principle of good faith shows its consistency in these two systems. Code Civil Des Fracais of 1804, Burgerliches Gesetzbush of 1896 and Swiss Civil Code of 1907, being the representatives of the Civil Law System, provide in details the principle of good faith and the provisions reveal a kind of inheritance. However, in Common Law System countries which have the equity and precedent traditions, the principle of good faith is not provided generally but reflected in jurisprudence through the adjudication principle and spirit. In China, the principle of good faith is usually defined in special laws as the country does not have the general civil code. With the legislation of the civil code being placed on the agenda, the establishment of a unified principle of good faith has become an important task.The rapid development of the principle of good faith in juridical application is due to both the limitations of statutory law and the practical demand of the economy and morality. It also shows the civil code spirit’s transformation to the standard of society. The principle of good faith functions like a safety valve balancing the interests of each side. Through the analysis of the cases from the Gazette of the Supreme People’s Court and the comparison of many dimensions including their types of cause of action, judgment time, court’s level and region, and the judgment result, this article try to find the regularity of the application of the principle of good faith.The fourth part of the article selects and analyses four typical cases which the principle of good faith applies, including "Case of Wang Yuewen in Hunan V Wang Yuewen in Hebei copyright infringement and illicit competition", "Case of Deng Guogen V Nanchang Agriculture Bureau and Jiangxi Henglong Auction Company auction contract disputes" etc. and conclude four conditions of the application of the principle of good faith i.e. the relevant provisions of the law is obscure; the relevant provisions of the law is conflicted; the application of the statute law may lead to injustice; legal loophole. These conditions are same as when other principles apply without specialty however there are special conditions the principle of good faith applying during the arguing and reasoning part which is different with others. Through the analysis of the cases, this article discovers some deficiencies existing in the application of the principle of good faith, for example:improper application and inadequate argumentation and reasoning.Finally, for the sake of the juridical application’s regularity and existing deficiencies of the principle of good faith, our country strives to draw lessons of the precedent system from the Common Law System and selects typical cases publishing in the Gazette of the Supreme People’s Court for the guidance of the district courts judgments. Through the statistics and analysis of the cases of the Gazette, this article proposes improving measures for the deficiencies of the juridical application of the principle of good faith:first, enhance the judge’s professional ability and the langue use of the judgment to reinforce the argumentation and reasoning. Second, standardize the performance of the right of discretion to restrict the judge’s casualness and ensure the juridical authority and unification. Last, enhance the typology study of the principle of good faith for the standardized instruction of the practical application.