Studies On Questions Of The Principle Of Fairness

The fairness is the most instinctive and direct requirement when people face contradiction, conflict or dispute. The conception of fairness is a type of impetuses to promote progress of the humankind. The principle of fairness in civil law calls for the civil subjects to guide their own acts, balance the interests between the parties concerned, and deal with the disputes between the parties concerned in accordance with the conception of social justice and fairness, to legitimately exercise rights and obligations while giving balanced considerations to the interests of the others and that of the public in civil activities.The principle of fairness is reflected in the following aspects in laws: firstly, the parties concerned enjoy equal opportunities to participate in civil law role, competing legitimately. Secondly, as to relations to the parties concerned, the interests should be balanced. Thirdly, the responsibilities should be borne reasonably by the parties concerned. Through in-depth investigations on the principle of fairness from various points of view, we not only intend to have a good idea of its meaning or conception, but more importantly we intend to find out what functions the principle of fairness plays in the processes of legislation, in the daily civil activities of people and in trial and execution of the civil dispute; to find out whether the principle of fairness could obtain the detailed and observable law aftereffects and social effects that people expect. We should not pay attention to the disputes in theories and indistinctive rhetoric in articles and clauses of the law.The principle of fairness is established in modern law for the purpose of adjusting contract relationship in the market bargaining, of giving balanced consideration to the interests of the both parties, of setting up a judgment criterion for the principles of "honesty and credibility", "obvious unfairness". Considering that the principle of fairness is defined mainly based on the contract content, the applicable scope of the principle of fairness should be limited to "the delimiting of the common content".As an important law conception and law principle in modern civil law, the principle of fairness should adequately embodies its own law values. As far as the law values are concerned, the principle of fairness is no longer a simple conception and it should include the following value properties: 1. People set the aims they follows for the principle of equity, just like scholars designate its contents while setting forth its meaning, or like what people pursue from the point of view of morality. 2. The real effects of the principle of fairness in pursuing these aims. 3. The evaluations People make on these effects in accordance with these aims. We should make new probe toward the principle of fairness, expanding it to wider and broader fields, putting it into the criterions that people can understand and obtain conveniently from the original reachless ideal. In brief, the articles and clauses in the civil law should be one fair expression form.If the principle of fairness is set as one aim that laws pursue, we should fix the position that the principle of fairness enjoys in the civil laws. Theoretically, most scholars deem that the principle of fairness should be subject to that of equity, and that the principle of equity is the most important and core one in the civil law of China.In civil laws, besides absence of seriously some law stipulations embodying the principle of fairness, there exists some outstanding troubles where the principle of equitable liability in the principle of fairness conflicts with the exoneration from liability in the civil laws. In essence, exoneration from liability too embodies the basic spirit of the principle of fairness: those in fault should bear civil liability and those without default need not bear civil liability - these stipulations is formulated fully based on the principle of fairness. But in the processes of implementation, there exists obvious conflicts between them.In the civil laws and statutes of China, there are some laws and statutes that embody probability. In fact, the change from "objective fact" to "law fact" indicates that judicial sector of our Country has already accepted the probability. At the same time, we could observe that the laws and statutes relating to probability are closely related to the fairness and reasonableness. Under the circumstance that mental injury is intangible and beyond calculationin essence, formulation of the laws and statutes with the feature of probability undoubtedly offer the victim a new method and basis to obtain corresponding compensation fairly and reasonably. The acceptance of the existence of probability is based on the principle of fairness, and the principle of fairness offers subsistence space in law for the probability. And the existence of the probability also promotes the further development of the principle of fairness.The punishment in civil laws is generally called civil liability, which refers to the law responsibilities the citizen, legal person or other organization should bear in the event of violation of civil law and statutes. Civil liability is a law responsibility the parties concerned assumes for violation of civil laws and statutes., and has a obvious difference with the punishment imposed on for invitation of criminal law. Civil liability mostly is a property liability. As far as the nature and function are concerned, the methods of bearing civil liability could be divided into three categories: 1. method of cessation, including cessation of infringements, removal of obstacles, and elimination of dangers. 2. method of compensation, including return of property, restoration of original condition, repairing, reworking or replacement, elimination of ill effects, rehabilitation of reputation. 3. method of punishment, mainly including payment of breach of contract damages. It is no time to delay to supplement articles and clauses involving punishment in the Law on Infringement of Rights. The civil laws formulated by the State puts more emphasis upon civil right, but fails to formulate or formulate few detailed stipulations against civil liability, against bearing civil liability for violating civil obligations in particular. And also there are few articles and clauses of civil liabilities involving punishment, that led the principle of fairness unable to be reflected adequately.As "private law", the civil laws are fundamental criterions guiding people's routine acts, closely related to the morality. A few of fundamental principles such as the principles of fairness, of honesty and credibility all come from the content of morality. In the early years of the establishment of Country, fairness has been set forth in the domains of the socialist morality. Under the socialist economic systems of that time, as a result of overlooking the function of commodities production, value law and market function, it is no possiblethat fairness could call attention to people. Since the reform and opening-up, profound changes take place in economic system, with which the principle of fairness receives more and more attentions. The principle of fairness has already been acknowledged in legislation and become fundamental principle of civil law gradually. Especially after the Comrade Jiang Zemin brought forward the thought and theory of "running the country by virtue", the masses raise new requirements against the fairness and justice of the law.