On the principle of honesty and credit

The principle of honesty and credit is a basic moral code of market economic activities, a basic legal rule of the modern society of the rule of law, and at the same time, it is also the basic principle of our implementation of the Party Central Committee of the rule of law, the principle of honesty and credit is a legal norm with moral connotation.

China is an ancient civilization with a long history, the Chinese nation has always attached importance to the ethical standard of honesty and trust. "Loyalty and generosity of the family for a long time, poetry and books for a long time," is a moral creed inherited by the Chinese people since ancient times. To the modern society both in China, or in Japan, and even other European and American countries are coincidentally the moral code of honesty and trust further upgraded to the civil and commercial legislation, the principle of honesty and trust for the civil and commercial law as a basic principle, some scholars will be referred to as the "emperor rules", "I Some scholars refer to it as "imperial rule" and "my jurisdiction", which shows the importance of the principle of honesty and credit. If the principle of autonomy to the principle of private law autonomy is the modern market economy that is the civil society of the rule of law of the most affectionate call, the principle of autonomy is the soul of the private law both civil and commercial law, the majority of businessmen and citizens of the initiative and initiative to play to the fullest, then the principle of honesty and credit and public order and morality is the principle of autonomy is the principle of autonomy of the two auxiliary wings, the two principles of the principle of autonomy as a constraint and the activation mechanism of the principle of autonomy. These two principles as a restraining mechanism and the principle of autonomy activation mechanism of one and the other, *** with the organic and harmonious regulation of market economic life. In particular, to prevent the civil subject from abusing the principle of autonomy, the principle of good faith is of great merit. Strictly speaking, public order and good morals are also derived from the principle of good faith. The principle of honesty and credit has both moral norms and legal norms of the dual characteristics, although not a specific system, but as an abstract principle, for all civil subjects of all civil actions play a role in constraining. According to the principle of good faith, the civil subject in the implementation of civil behavior, should pay attention to the credit, strictly abide by the promise, not to their own interests based on the interests of the state, other people and the community, should not harm the interests of the state, others and society under the premise of the pursuit of their own interests. What is the principle of honesty and credit, the principle of honesty and credit is a basic principle of human beings, but also a basic principle of contract law, article 6 of the contract law, "the parties to the exercise of rights and obligations shall follow the principle of honesty and credit".

The principle of good faith as the inevitable moral creed of civil society, necessarily related to an era of a country, a legal system of the basic understanding of human nature and the basic attitude. Its role in contemporary law is constantly strengthening the trend, become the whole field of civil law "imperial provisions". The principle of good faith has become a legal issue of special significance in today's world. Our country (mainland China) the principle of good faith started late, but in a wide range of countries around the world to learn from the new results of the research made some necessary and useful preparations, in a short period of time has made greater progress, the principle of good faith as the spokesman of the social times, the judicial organs of the tool as you wish to play an immeasurable role in the importance of the principle of good faith. Therefore, I also talk about my views on the modern situation and development of the principle of good faith in our country. As with all important legal concepts, the principle of good faith in the theory is also a variety of opinions, no clear-cut, according to "Black's Law Dictionary" explains, good faith that is with good faith, honesty, openness, loyalty without deception or fraud, with the real, the actual, without pretense or camouflage.

(I) the origin of the principle of good faith and its development

In China's ancient canonical texts, the word good faith has long appeared, "Shangwu book. Jinshu" integrity and rituals, poetry and books, cultivate good, filial piety and brotherhood, chastity and honesty, benevolence and righteousness, non-truthfulness, shyness and war and called "six lice". And the principle of good faith originated in the Roman law of good faith contract and good faith litigation. Roughly through the Roman law, modern civil law and modern civil law three stages. Roman law stage reflects the general requirements of the law of the commodity economy, the honesty of the parties is a reliable guarantee for the fulfillment of the contract. In the modern civil law stage, the bourgeoisie, based on the idea of the rule of law, retained the requirement of honesty to the parties, but deprived the judges of their discretionary power, and the principle of honesty and good faith was restricted to the scope of application of the law of debt or stipulated as a basic guideline for the fulfillment of the contract, which, nonetheless, laid the foundation of the subsequent legislation. Modern civil law stage, honesty and credit principle of good faith requirements and discretion directed to unify, recognize the judge's mobility, to develop and supplement the law plays a big role, also stipulates that any person must be in good faith in the exercise of rights and performance of obligations, marking the establishment of the principle of honesty and credit now. It should be said that there is no controversy in our academic circles about the origin of the principle of good faith and its development history, but there is a lack of complete and systematic rational analysis of historical information like Mr. Xu Guodong. From Mr. Xu Guodong's "Objective Good Faith and Subjective Good Faith of the Unity of Opposites Problems", "Centering on Rome", "The Principle of Honest and Good Faith in the Second Issue" two articles, it can be found that Mr. Xu has always been constantly drawing from the historical origin of the principle of honesty and good faith, and using it to enrich the principle of good faith on one hand, and on the other. Mr. Xu always draws nutrients from the historical origin of the principle of good faith, on the one hand, to enrich the connotation of the modern principle of good faith, on the other hand, also points out the future research direction of the principle of good faith for everyone. For jurists, history is not a simple statement, but should summarize the development law of the phenomenon of law and its profound connotation from history, so as to point out the direction for its future development, therefore, it can be said that Mr. Xu Guodong's research results can be regarded as an exemplary model in China.

(2) The Connotation of the Principle of Good Faith

There are four main doctrines regarding the connotation of the principle of good faith, 1, the general terms. The principle of good faith and the extension of the uncertain but strong general provisions, as a general provision to guide the parties to correctly carry out civil activities, to grant the judge discretion to fill the legal gap. 2, dual function. It believes that, in essence, the principle of good faith due to the moral norms and legal norms into one, both legal regulation and moral regulation of the dual function of the legal provisions have great flexibility, the court therefore enjoys greater discretion; can be excluded from the party's autonomy, and directly adjust the rights and obligations between the parties to the relationship. That is to say the principle of good faith has the dual function of legal adjustment and moral adjustment. 3, the balance of interests. Mr. Xu Guodong believes that the principle of good faith requires that the civil subject should be in good faith mental state to engage in civil activities, the exercise of civil rights, to perform civil obligations. In civil activities, the fulfillment of civil obligations, not only to maintain the balance of the interests of the parties, but also to maintain the balance of the interests of the parties and the interests of society, that the principle of good faith seeks to civil activities between the parties and between the parties and the interests of society balance. And the balance of interests of the three parties to realize, lazy people to honest reason in good faith to exercise the rights, obligations, and through the judge of the fairness of the creative justice to maintain the final. 4, semantics. It is believed that the principle of good faith is a participant in civil activities without any fraud, the requirements of credit. Some people also think that there is a "balance", but I think that "balance" is actually just a "balance of interests", the extension of the judicial field, the so-called principle of good faith is in the hands of the judges! The so-called principle of good faith is a balancing act in the hands of the judge, only that the judge in the administration of justice must follow the principle of good faith, through the balance of interests between the parties and between the parties and the community to arrive at a just judgment.

I think that "semantics" I look at the suspicion of meaning, and only see the principle of good faith in civil activities in the guiding significance, but did not see the significance of its great value of judicial activities, thus limiting the principle of good faith guiding function in a narrower range. The "dual function" and "balance of interests" is from a different point of view of the "general terms" of the extended interpretation, "dual function The "dual-function theory" reveals the connotation of the principle of good faith as a general clause from the perspective of function, while the "balance of interests theory" explains the connotation of the principle of good faith from the perspective of the functioning mechanism (i.e., the realization of fairness through the balance of interests), therefore, I personally believe that the connotation of the principle of good faith is better defined as "mandatory general clauses of indeterminate scope". Therefore, I personally believe that it is better to define the principle of good faith as "mandatory general terms with indefinite scope".

(C) the essence of the principle of good faith character

The essence of the application of the principle of good faith is that the judge through the principle of good faith expansion of interpretation, and in accordance with the handling of some special cases, in order to achieve the results of individual cases to deal with the fairness of the goal of justice, and thus the law for the development of the substantive activities of the judicial activity of the dynamic. The reason why its nature to do the above characterization of the main reasons are as follows:

First, the application of the principle of good faith is the embodiment of the concept of the value of modern civil law, the value of the concept of modern civil law ---- substantive justice is a product of history. Into the 20th century, with the rapid development of science and technology, as the 19th century modern civil law based on the two basic judgments, that is, the so-called equality and interchangeability has been lost, the emergence of serious polarization and antagonism [Note 1] resulting in the de facto inequality of economic status between the parties, forcing the legislator, the judiciary and the scholars must face the reality of the abandonment of the formalism of the modern civil law. [Note 2] How to achieve this goal, is the beginning of the 20th century legislators, the judiciary and scholars *** with the face of the problem, the principle of good faith is in this socio-economic background should be born. After the legislator, the judiciary and scholars continue to dig, be re-interpreted and given its new connotation, and ultimately from the modern civil law in the principle of contract for the basic principles of civil law, to adapt to the needs of history, it can be said that the principle of good faith is the modern concept of civil law ----- substance of meaning. Gradually replace the modern civil law concept of formalism in the process of civil law legislation mode one of the important embodiment. The formation of modern civil law concept of substantive justice, promote the establishment of the principle of honesty and credit, and the principle of honesty and credit is comprehensive throughout the spirit of substantive justice. The formation of the concept of modern civil law and the emergence of the corresponding legislation are complementary to each other, and the two are an interactive relationship that promotes each other and serves as a condition for each other. The principle of good faith, which implements the spirit of substantive justice, is objectively embodied in the balance between two interests, including the balance between the interests of the parties and the balance between the interests of the parties and the interests of society, i.e., social propriety. Judges must apply the principle of good faith to these two points as the value of the goal, the essence of its embodiment of fairness and justice.

Second, the application of the principle of good faith is first of all the judge to interpret the process of law, the conditions of social life on the judge to cover the scope of the infinity and its time frame of the ever-changing, and embodies the level of understanding and understanding of the ability to deal with the law exists irreconcilable contradictions. The law can not be clearly defined for all the social relations existing in social life, nor is it possible to change in time in accordance with the conditions of social life at any time, resulting in the existence of statutory law, "not purposeful, not extended, fuzzy, lagging," and other limitations. In order to make up for the shortcomings of the written law, most of the written law countries to take timely amendments to the relevant provisions of the law, in addition to this measure, most of the following two ways: First, explicitly granting discretionary power to the judge to recognize the judge has the function of law-making. Secondly, the legislator establishes some "framework" concepts in the code, which are applied by the judges to deal with various unpredictable social phenomena. As far as the current judicial system in China is concerned, our laws do not explicitly give judges discretionary power, that is to say, the judge through judicial activities directly conducts acts that have not been explicitly authorized by the law. Our country to make up for the shortcomings of the written law, mainly through the judge to make the corresponding interpretation of the law and in order to adjust the relevant social relations to realize, so the application of the principle of good faith as a typical representative of one of the "framework concept" first of all is the judge to the interpretation of the principle of good faith process.

Third, the judge on the application of the principle of good faith has the ability to move, this is due to the principle of good faith as a flexible rule and strong complementary rules [Note 3] of the characteristics of the legislator to make up for the inadequacy of the written law to establish the concept of the "framework" of its connotation and extension is very unclear. Some scholars believe that the principle of good faith "belongs to the provisions of the white paper", "colorless and transparent" [Note 4], that is to say, the principle of good faith is omnipresent complementary role. As long as in the application of statutory law in the process of loopholes and deficiencies, the principle of good faith will be used and reflect the complementary role. This also determines the principle of good faith has the application of mandatory, in civil activities, its specific embodiment: whether the parties agreed, the principle of good faith is binding the rights and obligations of the parties as a matter of course, so that the parties not only to undertake the obligations of the agreement, but also must undertake this mandatory complementary obligations, and the parties may not agree to exclude the application of the parties, even if they agree to exclude the effectiveness of the effect of the attributed to the In this sense, the principle of good faith is an ipso facto part of the civil rights enjoyed by the parties when they engage in any civil activity. The judge in the civil case, first of all, should respect this embodiment of civil rights of private rights, and ipso facto apply the principle of good faith as a manifestation of private rights, do not have to whether the parties to express the meaning of the standard, so the judge of the principle of good faith has the ability to apply. Hope to adopt