Conditions for applying the principle of good faith

The application of the principle of good faith in civil litigation is generally as follows: 1. Obligation of the parties to make a true statement. The obligation of the parties to make a true statement is simply called "true obligation". True obligation is usually considered as the main content of the principle of good faith. Although some countries in the civil law system do not regard the principle of good faith as a general provision, they have provisions on true obligations; On the contrary, although some countries have general provisions on honesty and credit, they do not clearly stipulate the true obligation, but only think that it is a legal obligation based on the principle of honesty and credit in theory. In foreign jurisprudence, it is generally believed that the true obligations of the parties are only subjective obligations (honest obligations or sincere obligations) or subjective true obligations, that is, as long as the parties make true representations according to their own intentions, they have fulfilled their obligations. In other words, even if it is later found that the statements of the parties are inconsistent with the facts of the case, it is not a violation of real obligations. It is also impossible to require that the real obligation is the objective truth of the parties' statements. On the other hand, if it is defined as subjective obligation, the role of true obligation in discovering the truth of the case is very limited. How to define real obligation is still controversial abroad. 2. Obligation to facilitate litigation. It is one of the basic requirements of the principle of good faith that the parties have the obligation to bring a lawsuit. This obligation requires that the parties should not delay or delay the proceedings or interfere with the proceedings, but should assist the court to conduct the proceedings efficiently and complete the trial. This obligation is embodied in not delaying the means of attack and defense; Not intentionally applying for unreasonable withdrawal (abusing the right of withdrawal); Deliberately dividing the object of litigation is not allowed to avoid the corresponding litigation procedures (for example, by dividing the object of litigation to make it applicable to small claims, so as to obtain the benefits brought by small claims procedures). 3. It is forbidden to form an unfair litigation state by deception. According to the principle of good faith, the parties shall not form an improper litigation state by deception, so as to obtain improper use or inapplicability of the provisions. For example, in the case of abuse of jurisdiction, the plaintiff exercises jurisdiction by fabricating false factual reasons, thus obtaining jurisdiction in favor of himself. Another example is that in the bill litigation, the holder of the bill exercises his rights to the drawer, but in order to gain the jurisdiction of the court where he is located, he deliberately files a lawsuit with the endorser as the defendant in the same place to gain the jurisdiction of the court where he is located, but he deliberately withdraws his request to the endorser during the first oral argument. Another example is that before the lawsuit is about to start, the parties obtain the automatic creditor's rights with almost no value at a low price, and then advocate offset in the lawsuit. In addition, it is also against the principle of good faith for foreign parties to let the parties in the host country sue on their behalf in order to avoid the obligation of litigation guarantee. 4. it is forbidden to retract the confession. The estoppel in civil procedure is also called estoppel principle. This principle originated from the principle of estoppel in Anglo-American law. Japan and other civil law countries expand or summarize it as prohibiting contradictory behavior. The specific application requirements of this principle include three aspects: first, the parties have carried out acts that are in conflict with the previous litigation acts (inside or outside the litigation); Second, under the premise of the other party's trust, he made a violation of his promise; Third, it is unfavorable to the other party who trusts its first behavior. For example, after the admission is made, the admission is withdrawn without justifiable reasons. The principle of estoppel has also been recognized by the Supreme Court of Japan in practice. But in theory, there are still many problems in how to apply the principle of estoppel. For example, in the same lawsuit, because the principle of integration of oral arguments is observed, even if the actions of the parties are contradictory, which may have an impact on the formation of the judge's free evaluation of evidence, the principle of estoppel is not applicable. In addition, as far as the nature of litigation is concerned, the parties are free to withdraw the effective litigation (that is, the implementation of this behavior will not directly produce procedural legal effect, but only requires the court to implement the corresponding judgment behavior, such as the behavior that the parties advocate and give evidence in the litigation is a typical effective litigation behavior), and in principle, the parties are free to withdraw it without being bound by the principle of estoppel. 5. Abuse of power in litigation. Although the litigation system gives the parties some rights, if they don't exercise this power in good faith, they can't recognize the benefits of exercising this power. Abuse of power in litigation, such as repeatedly asking the presiding judge to withdraw without justifiable reasons; Abuse of rights specified on the date of application, etc. The abuse of these powers can be judged by whether there are justified reasons, but it is not easy to grasp the abuse of the right of appeal. As the right of action is a basic litigation right guaranteed by the constitution, it is quite cautious to deal with the abuse of the right of action by the principle of good faith in foreign civil litigation practice. In countries that recognize the principle of good faith, the relationship between good faith and regulating or abusing the right of action is still controversial in theory. The essence is whether the principle of good faith contains provisions on abuse of power or rights in litigation. 6. Loss of litigation rights. Because the actor does not exercise the specific power in the lawsuit for a long time, the other party has an expectation that the actor is likely not to exercise the power. Once at this stage, if the actor can still exercise his power, it will hurt the expectations of the other party. Therefore, in order to maintain this expectation, the exercise of power in this case is illegal, which is the so-called principle of loss of power. The principle of loss of rights can be applied to the method of not exercising rights relief within the prescribed time limit, and it is generally considered that there is no problem. However, the failure or loss of the right of appeal and the abuse of the right of appeal need to be treated with caution. The difference between the loss of litigation rights and the abuse of litigation prohibition rights is that the former is due to negative inaction and the latter is due to positive action. The former has the effect of losing power, while the latter has the effect of being invalid.