Social Sciences in China (Chinese Edition)

No.11, 2015

 

 

Distinguishing between the Principle of Public Order and Morality and That of Good Faith

(Abstract)

 

Yu Fei

 

China’s theory of civil law has not as yet provided any fundamental reply to the question of “Why does the civil code simultaneously need a principle of public order and morality and a principle of good faith?” In practice, considerable ambiguity and confusion still exist. The former principle “examines the content” of legal acts, while the latter “examines the execution” of the concrete exercise of rights. There exist significant differences between the two in terms of the scope of their application, the objects of their protection, the setting up of their standards and their legal effects. In the special sphere of standard clauses there occurs the phenomenon whereby the examination of content is carried out under the principle of good faith, as determined by the aim of pursuing high-level equilibrium of results. This further displays the difference between the standard of public order and morality and that of good faith.