诚实信用原则的功能及其司法适用

从论证诚实信用原则具有法创设功能入手,发挥其作为概括性原则的成文法漏洞补充作用。但是又反对直接引用诚信原则作为判案依据,主张借鉴英美法系的判例制度来实现法律规则的具体化,从而避免法官简单地向一般条款逃避。笔者又试图通过三审终审制的构建,来实现诚信原则被具体化以后具体规则的类型化及统一化,从而对法官可能滥用诚信原则作必要的限制。

The Function and Judicial Application of the Good Faith Doctrine

The article proves the good,faith doctrine's the function of creating laws and probes into to its supplementary function as a principle of generality on written law loopholes. However the author objects to quoting the good faith doctrine as ruling cases directly, and holds that we should draw lessons from legal precedent system of the Anglo-American Law System to realize the concretion of legal rule, thus to prevent the judge from escaping to the general clause. And after the good faith doctrine is specified into concrete rule, through examining the construction made in the system of the third instance as the final, the author also attempts to make the doctrine to be sorted and unified so as to make essential restriction on the possibility of the abuse of the good faith doctrine by the judge.