The Principle Of Good Faith. Civil Procedure Law Of Study

The principle of good faith originates from contract of utmost good faith and actio bona fidei under Roman Law, the two aspects of which in current civil law, that is honest and trusty requirement and the right of free judgment, are the further development to it. The principle of good faith is also a principle of law which derived from morality. It applies to the field of law which becomes wider and wider. At first it is only the principle obligors must obey to perform the obligations to obligees and it is established as a fundamental principle in the private law gradually. The function of the principle of good faith becomes so great that it gains the status of imperial clause .The essence of good faith is that the civil participants should bilaterally maintain the benefit balance when engaging in the civil activities and keep the balance between individual interest and social benefit. The notions of litigation and the lawsuit itself change as the society becomes more and more complex. Western countries who are well-developed in law begin applying this principle to civil procedure, and now in our country it is mentioned much more than ever in academic field and practice field.This thesis makes a study on the principle of good faith in Roman Law. We can conclude that good faith principle within code of civil procedure law derives from Roman law, but has been neglected because of the separation of the Civil Substantial law and the Civil Procedure law, the latter's assisting nature for a long time, and the influence of the contesting theories of litigation. With the prevalence of independent procedure and the rise of compromising litigation view, the subjects involving in a lawsuit become cooperating community in discovering the truth of a case and completing the lawsuit. Thus, good faith principle has been re-pursued by the studies and lawmaking.This thesis is trying to interpret the necessity of establishing good faith principle within code of civil law in China from the interdependency of the value function realization and right guarantee system of civil procedures, and the calling for judicial trustworthiness in a law-ruled society; and trying to analyze the feasibility of establishing good faith principle within code of civil procedure law from social cultural foundation, procedure value foundation and foundations of litigation view. Through studying the relatively mature evolution history of good faith principle within code of civil law, the text is trying to probe into setting up good faith principle as lex connotation within civil procedures, namely setting up this principle under the guide of general items and the concrete rule system related to the former in corpus juris. On this basis, the text is trying to think about the construction of the concrete rule system according to the status of different subjects involving in a lawsuit and their duty characteristics.