Experimenting with the historical inheritance and modern creation of credit

The principle of honesty and credit is the basic principle of China's civil and commercial law, however, in the process of China's market economy reform, the government has neglected the establishment of the credit system, so that the honesty and credit problem has become a bottleneck restricting China's economic development. This paper discusses how the principle of honesty and credit has been abandoned and how to re-establish the position of the principle of honesty and credit in the market economy, starting from the impact of the principle of honesty and credit on the personal interests of individuals and enterprises.

The principle of honesty and credit requires civil subjects to reach a balance between the interests of both parties in civil activities, as well as a balance between the interests of the parties and the interests of society. This principle consists of two aspects: one is the "good faith requirement", the second is the judge's "discretion", in this principle is the most important and most basic point is the "good faith requirement". The most important and fundamental point in this principle is the "requirement of good faith", which means that any party to a civil activity must carry out the civil activity in good faith, and any civil behavior in bad faith, i.e., obtaining one's own interests at the expense of the other party or the interests of the society, violates the principle of honesty and good faith. If this requirement is violated, even though it does not violate any legal provisions or contracts, the judge may still rule against the malicious party in order to achieve individual justice. This principle has an uncertain connotation and extension, but it is also a mandatory principle that can be adjusted at any stage of any civil activity to supplement the specific legal provisions and contract terms. Therefore, the principle of good faith is known as the civil and commercial law field of the "emperor clause".

Originally, honesty and credit existed only as a kind of morality in civil custom, which requires people to seek credit in civil activities, abide by promises, honesty, and pursue their own interests without harming the interests of others and the interests of society. From the beginning of the evolution of civil custom to the basic principles of modern civil law, honesty and credit has gone through the process from the supplementary provisions of civil law to adjust only the legal relations of claims to the basic principles of civil law. This process is also the result of the continuous development of human jurisprudence. From the historical stage of the development of the principle of good faith through the Roman law, modern civil law and modern civil law three stages.

I. Roman law stage

The transplantation of honesty and credit from commercial custom to legal norms began in Roman law. In the era of Rome's prosperity, the full development of the commodity economy, when there are many kinds of commodity exchange relations, the legislator is unable to every kind of commodity exchange relations are exhaustive provisions. Moreover, they found that no matter how elaborate the legal provisions and contracts, if the parties have malicious intent, they can always find a way to avoid the law. This reveals the Roman law to pursue the absolute certainty of the law and negate the drawbacks of judicial activity. In order to solve this problem, the Roman law sprouted in good faith contract and good faith litigation. Good faith contract requires the debtor to assume the obligation of good faith and honesty, and good faith litigation can not only according to the content of the contract to determine the rights and obligations between the parties, but also based on the parties to determine whether the obligation to pay attention to the obligation of good faith to assume the responsibility of the parties. Although the role of honesty and credit in Roman law is limited to the field of debt law, but already has a modern civil law in the principle of honesty and credit of the two basic elements - "good faith requirements" and the judge's "discretionary power "

Second, the modern civil law stage

European modern codification has always taken the absolute strict rule of legislation, negation of the judge's subjective initiative. Due to the excessive pursuit of legal norms exhaustive, stable, the judge's discretion is completely deprived of, which greatly limits the principle of good faith function. Without the judge's discretion, the principle of good faith can only have guiding significance to the civil activities in the field of debt law, lost as a mandatory legal function. Nevertheless, the principle of good faith is after all a symbol of legal justice and fairness, the legislator can not help but respect the values contained in the principle of good faith. Therefore, most of the statutory law in this period expressly provided for the provisions of honesty and credit.

Third, the modern civil law stage

The twentieth century, rapid social and economic development, new economic relations continue to arise. Lack of elasticity of the civil law of each country is more and more difficult to adapt to the rapid changes in the economy. The development of the economic base has pushed the change of the law, so the legislation began to take a new combination of strict rules and discretionary approach. 1907, the Swiss civil code in article 2 made the following provisions: "Anyone must be honest, credit to exercise the rights and obligations." This is the first time that the principle of honesty and credit is recognized as a basic principle of civil law. Since then, the civil law system countries have followed suit, so that the principle of good faith to the top of the power of civil law. The principle of good faith has completed from the moral norms to the civil and commercial law of the whole jurisdiction of the "imperial provisions" of the transformation.

China's modern law in legislation and legal theory through Japan, by the German influence. Like civil law countries, in the field of civil and commercial law, the principle of good faith as a basic principle plays a vital role. Article 4 of the General Principles of Civil Law stipulates that "civil activities shall be conducted in accordance with the principle of honesty and good faith." Article 6 of the Contract Law stipulates that "the exercise of rights and the fulfillment of obligations by the parties shall be in accordance with the principle of honesty and good faith." These two provisions are the general embodiment of the principle of good faith in civil and commercial law. The specific embodiment of the principle of honesty and good faith in civil and commercial law is mainly in the provisions of invalid civil acts (Note 1), revocable and modifiable civil acts (Note 2), and negligent contracting (Note 3). This provision is the legal expression of the principle of good faith in China, which means that the principle of good faith not only guides the parties to carry out civil activities correctly, but also plays an important role in perfecting the legislative mechanism and recognizing the mobility of judicial activities. It can be seen that the principle of good faith reflects the value orientation of legal justice and fairness, is the core of China's civil law in the basic principles of law.

The importance of the principle of honesty and credit in civil activities in our country, although the legislation has been affirmed, but in our country's current operation of the market economy, it has not been due respect. Currently China's market economy, credit should be the basis of the market economy, the market economy with good faith resources is a healthy and orderly market economy. At present, in civil activities to follow the principle of honesty and trust in the situation is not optimistic. In recent years, the stock market in the "Yin Guangsha", "Yian Gaoke", "Zheng Baiwen" and other events as well as the formation of a huge triangular debt relationship between enterprises are endless, so some of the Violation of the principle of honesty and credit, more and more become an important constraint on the healthy development of China's economy. If the previous few years, China's economic development bottleneck is mainly the relative lagging of infrastructure, then the current and even the bottleneck of the next period is mainly malicious default funds, contract fraud, substandard and other violations of the principle of honesty and integrity of the proliferation of these behaviors, these behaviors lead to the increase in the cost of socio-economic operations, social relations disharmonious, and thus shaking the foundations of the market economy.

The principle of good faith is not eternal, it has its own development and evolution process. What is the motivation for its evolution? Why its influence on the civil behavior of human society is constantly changing? After a comparative analysis, can get such a conclusion, the principle of good faith compliance status and whether it can bring benefits to people closely related. Businessmen who are honest and trustworthy can benefit from their reputation for honesty and trustworthiness in society, so honesty and trustworthiness habits are followed. Similarly if the habit of honesty and trustworthiness in the society can't bring benefits to businessmen, honesty and trustworthiness will be abandoned. The analysis of the formation and change of the situation of honesty and trustworthiness in our country can prove this point:

(1) From the honesty and trustworthiness of our feudal society:

Communication and transportation conditions were low in our feudal society, and the people were confined to a very small area. Most of the ordinary people in feudal society lived all their lives in the village or town where he lived and knew each other well. Under these conditions, our society is basically a society of acquaintances. In a society of acquaintances, relationships between people are based to a large extent on status. Therefore, as people in the same village or town, everyone knows each other better, and everyone else knows very well whether each person is honest and trustworthy or not. In such an environment honest and trustworthy people are trusted and willing to socialize with them, and vice versa they are not trusted and do not socialize with them. Do not follow the honesty and trust means that the way of communication is cut off, people weigh the advantages and disadvantages, can only choose to be honest and trustworthy. At the same time, in order to reduce the risk of their own civil activities, people also want other people to be honest and trustworthy. Honesty and trust can bring the smooth flow of communication so that the trustworthy people to obtain the benefits of the feudal society of honesty and trustworthiness is based on the formation of this understanding.

(2) From the honesty and trustworthiness of the society before China's reform and opening up:

1. From the individual level, China's household registration system was quite strict before the reform and opening up. Since there were no identity cards at that time, people were likewise confined to the neighborhoods in which they lived. China is still basically an acquaintance society, the same as the feudal society, individuals do not follow the honesty and credit means that the way of interaction is cut off. Only by following honesty and trust can individuals keep their social interactions open and gain benefits.

2, from the enterprise level, before the reform and opening up of China's enterprises are all state-owned enterprises or collective enterprises. The production and sales of the enterprises were totally dependent on the government's instructions. Between enterprises raw materials, equipment, capital are in the pocket of the state flow, that is to say, before the reform and opening up of China is actually only one enterprise, which is called the government, generally speaking, the enterprise is only the government's workshop. An enterprise with different workshops trading with each other, of course, there is no question of honesty and credit.

(3) after the reform and opening up, China's honesty and credit principle to follow the situation has gradually deteriorated, the principle of honesty and credit has been comprehensively weakened.

Since China's implementation of reform and opening up, the socialist market economy has made great progress. However, it is undeniable that our economy is still far from the true meaning of the market economy, the market norms have not really established. One of the important reasons for this is that the principle of good faith has not been well followed. Hidden behind the economic prosperity is the chaos and disorder of the market situation, the country's "triangular debt" as many as hair. Even the court of law, such as the authority of the judiciary, its effective judgment is not much respect. The lawsuit is completely to fight for a jurisdiction. This situation artificially increases the cost of market operation, so that the transaction is not smooth, and even gradually shrink, the market economy is facing a huge crisis.

1, the law itself is not sound, resulting in civil activities of the parties to circumvent the law becomes possible.

2, the prevalence of local protectionism, the quality of judges is not high, so that another basic content of honesty and trust in the judge's discretion is difficult to realize a fair and effective.

It is because of the principle of honesty and credit of the two basic content are difficult to effectively realize, in our country's current market economy is not honest and trustworthy phenomenon has been gradually from the minority to the majority, from the individual to the general, analyze the formation of the reasons, I think:

First of all, the reform and opening up after the implementation of the identity card system, the strict household registration system is weakened, the population began to nationwide mobility. . Accompanied by the dramatic increase in interaction between people, and is no longer limited to so few acquaintances. After civil activities with strangers across the country became regular, the acquaintance society that existed from feudal society to the pre-reform and opening-up period disappeared. The credit records of the parties in the old acquaintance society who knew each other well in civil activities became history. After the disappearance of the acquaintance society, no one knew the credit record of the stranger with whom he or she was dealing. Since the country does not have an effective credit system, the credit of individuals and enterprises is blank. It is difficult to distinguish between honesty and dishonesty in this social environment.

Second, most people's credit records are blank, and the smoothness of personal or business interactions does not depend on whether or not they are trustworthy. China's vast territory and population, dishonest people or enterprises in the vast territory of continuous deception, rely on the deception itself can obtain huge benefits. The basis for the existence of the principle of good faith has been shaken.

Thirdly, in a judicially impartial society, the principle of honesty has a final guarantee. Judges can protect the interests of those who speak honestly and punish those who do not, while maintaining the principle of honesty and credit. However, many judges in our country is not high quality, and local protectionism is prevalent. The civil procedure law and established the "plaintiff on the defendant" principle of litigation. This means that the victim must go to the fraudster's "territory" request the local judge for their own justice, once the judge is the influence of local protectionism, can not treat both parties equally, the claim is tantamount to a fish out of water. Fraudsters can easily profit from fraud.

Fourth, in civil activities, more and more people take advantage of personal and business credit disorder and strong local protectionism to fraud, honesty means losing out. People are becoming "savvy". The principle of honesty is in danger of being abandoned when it brings harm rather than benefit to those who follow it. In the long run, in the near future is likely to affect the whole society of our collective unconscious in civil activities to give up the principle of honesty and credit. If you give up the principle of good faith this market economy, the basis of China's reform and opening up twenty years of achievements will be ruined.

China's accession to the WTO, the WTO rules on enterprise credit more stringent requirements. If our enterprises do not speak honest image once circulated, will have disastrous consequences for our economy. Solve the problem of honesty and credit in China has been imminent. In recent years, the above problems have attracted the great attention of the party and the state, Premier Zhu mentioned in the government work report "to rebuild China's credit". But how to rebuild credit, there are many discussions in the community, some people say that the decline of the principle of honesty and credit is due to the erosion of capitalism and corrupt ideas, the reform and opening up of the flies and mosquitoes, to strengthen the ideological education, to regain the traditional values. Some people say that this is the reform and opening up of the "tuition", with the development of the economy will automatically solve the problem of honesty and credit. These claims have some truth, but do not grasp the core of the problem. Whether the principle of honesty and credit can be rebuilt depends on whether it can bring benefits to people again, and the most effective motivation can only be driven by benefits. Only in the society to form the integrity of those who profit, dishonesty is punished, the principle of honesty and credit can be re-established.

To rebuild the principle of honesty and credit, and to establish the status of the principle of honesty and credit in civil activities is a huge project. Relying on the strength of a certain aspect of society is very difficult to work, for example, the Industrial and Commercial Bank of China and Beida Computer Systems Engineering Company jointly founded the "China Enterprise Credit Network", Shanghai's pilot credit assessment agencies are referring to the European way and the United States way, the Central Bank of China Shanghai Branch, the formation of a joint letter of credit system and so on. However, most of these attempts are not very successful.

I thought in this reconstruction project must mobilize the strength of society as a whole, from three aspects.

First of all, in the field of legislation must be the principle of honesty and integrity of the relevant legislation to establish a sound. In the capitalist developed countries, the legislation on honesty and credit, quite complete. In terms of legislation, take the United States as an example. The United States from the 1960s to the 1980s in just 20 years, in order to improve the United States credit system, the implementation of the principle of honesty and credit, the relevant legislation has amounted to as many as 17, including the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Equal Credit Opportunity Act and so on. On the contrary, China's civil legislation is lagging behind, and there is no civil code so far. Accelerating the construction of the civil code, concretizing the application of the principle of honesty and credit in the individual laws, and enhancing the operability is an important step to rebuild the principle of honesty and credit. This has three advantages: ① Strengthening the legislation related to honesty and credit can effectively define the rights and obligations between the parties in civil activities and make the responsibilities of civil activities clear. ② In response to the harm of local protectionism, excessive government intervention in the economy should be put an end to, so as to inhibit the enterprise's lucky, reduce the short-term economic behavior. At the same time, it also makes the normal behavior of the government standardized and rationalized. ③Improve the judicial remedy system so that the judge's discretion is more transparent and operational.

Secondly, establish an extensive set of credit record files. The purpose of establishing a credit record file is to make the public aware of the credit records of enterprises and other economies so that they can judge the risks of trading with each other. With a good credit history file, which everyone is happy to trade with, the credit history file can become the biggest intangible asset of businesses and other economies. I personally do not favor too much government intervention in the economy, but the establishment of credit history files such a big project itself should be the responsibility of the government, without government efforts is impossible to complete, the establishment of credit history files should be divided into two parts.

①Mandatory credit registration must be adopted for enterprises. Enterprises are the most important subject of market activities. The greatest impact on economic operation. At the same time enterprises and natural persons compared to the number is small, and the situation is basically for industry and commerce, banking, taxation and other departments. Whether from the point of view of the impact on the economy, or from the point of view of the workload of mandatory credit registration, administrative orders to force enterprises to credit registration is reasonable.

Credit registration for enterprises cannot be accomplished overnight and should be treated in different situations. For newly registered enterprises, credit registration should be made a prerequisite for the establishment of enterprises. For established enterprises, it should be mandatory for them to go to a specialized agency to apply for credit registration within a certain time limit, after which the business license of any enterprise that fails to register for credit should be revoked, thus making registration for credit a condition for market access. An enterprise's credit record should be disclosed as public *** information and change as the enterprise follows the status of honesty and creditworthiness in its trading activities. For enterprises with good credit, credit itself becomes their greatest intangible asset and everyone is happy to trade with them. The consequences of poor credit, on the other hand, are horrendous and can be downright disastrous for the enterprise. In recent times, after the exposure of scandals of multinational corporations such as Enron and WorldCom in the United States, even though these corporations are powerful, they can hardly escape the fate of bankruptcy once their credit records turn bad. This will achieve the purpose of purifying the market by eliminating the fittest.

②For the natural person should take the voluntary credit registration. Because of the vast territory of China, the population, the use of science and technology for the management of the level is not high. It is also very impractical to conduct credit registration for the entire population. Therefore, credit registration can be carried out according to the needs of individual citizens. If the individual citizen is engaged in frequent commodity trading activities, in order to obtain credit intangible assets, he or she must request credit registration on his or her own. If the citizen is seldom engaged in commercial activities, there is no need for credit registration. In our country's economic development to a certain extent, the conditions are ripe after the gradual transition to similar to the United States of America's universal credit registration.

Third, the judicial reform to ensure that judges exercise their "discretion" in a fair and impartial manner. Currently, the personnel and financial power of the court system in China are subject to the local government, so there is a slogan called "political and legal organs should serve the local economic construction". In the view of some local governments, the local financial support to the court, the court's elbow can not turn outward. In the local enterprises and foreign enterprises in economic disputes, the court under pressure, it is difficult to foreign local bowl of water leveling, fairness, justice is just an empty word. In judicial practice, due to the principle of good faith is a vague principle, flexibility. The judge applies the principle of freedom is very great. Once the judge can not be equal to the local and foreign, will inevitably lead to two situations. One is the judiciary's negative application of the principle of good faith, that is, should be applied but not applied; one is the judiciary's positive application of the principle of good faith, that is, as a "pocket", arbitrarily applied. In both cases, there is no doubt that the cases will not be handled fairly and that the interests of the parties concerned will not be effectively protected. Therefore, the judicial reform, get rid of the local administrative power on the judicial power of intervention is the implementation of the principle of good faith, the key to the effectiveness of the mandatory laws and regulations. Otherwise the violation of the principle of good faith can still get away with it, the reconstruction of the principle of good faith is just an empty word.

Re-establishing the principle of good faith is a long way off. To solve this serious problem can not work overnight. After the reconstruction of the benefits are also very obvious. After re-establishing the principle of honesty and credit, people trust each other, which in turn promotes the economy to break through the bottleneck, rapid development, social relations become more harmonious. In this way, we can achieve a win-win result for both economic and social benefits.