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Title: 誠信原則的理論與實踐
Other Titles: The Principles of European Contract Law and Good Faith
Authors: 陳聰富
Chen, Tsung-Fu
Keywords: 誠信原則;公平交易;歐洲契約法原則;歐陸法;英美法;締約上過失;情事變更原則;不當終止契約
Date: 2008-08
Issue Date: 2016-05-20 11:16:52 (UTC+8)
Abstract: 歐陸法國家普遍承認誠信原則作為民法的基本原則,但英國法則採取完全相反的立場,認為誠信原則過於抽象化,並無明確之判斷標準,影響法律的明確性與安定性。然而,同屬英美法系的美國法,則仿效德國法而採取誠信原則作為判決之理由。本文介紹歐洲契約法原則關於誠信原則之規定;說明歐陸法關於誠信原則之解釋適用及其採取誠信原則之理由;探討英國法反對誠信原則之立場,以及正反理由的爭辯,並考察同為不成文法國家的美國,對於誠信原則的看法。本文並檢討誠信原則的意義與適用標準,最後則討論我國法關於誠信原則的適用案例。\r
Good faith is generally recognized by continental law countries as a fundamental principle in the civil code, while English law does not recognize good faith in contract law due to its abstract nature and its lack of clarity and certainty. Nonetheless, in American law, one of the Anglo-American laws follows German law in adopting the principle of good faith. This paper introduces the provisions regarding good faith in the Principles of European Contract Law, and the application of good faith in European countries. In so doing, this paper explores the debate over good faith in English law, and examines the reasons why American law applies the principle of good faith to its contract law. Based on the discussion of good faith in various countries, this paper further re-examines the meanings and the application criteria of good faith in the theory on which Taiwanese contract law is put to the table for discussion.
According to this research, good faith has exercised a great impact on continental law countries. It has been argued in certain cases in continental law countries with the claim that good faith is too obscure and uncertain, and may serve as a tool for an arbitrary court decision, although this was argued by the English lawyers. The reasons why the English and Continental law systems adopt different standings on good faith are based on their different legal systems, legal cultures, and legal consciousness in their respective countries. Without the principle of good faith, judges tend to be more hesitant in creating legal obligations and restraining the exercise of rights, which may render the court unable to enforce justice. The major contribution made by good faith to continental law is that judges, based on their concepts of fairness and justice, are capable of intervening in private law relationships between contending parties as needed.
Relation: 法學評論, 104, 1-60
Data Type: article
Appears in Collections:[法學評論 TSSCI] 期刊論文

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