我国《民法典》关于诚信的规定之整理与补白建议

The collation and supplementary suggestions on the provisions of good faith in China’s Civil Code

诚信原则的基本原则属性在我国已得到较充分体现,《民法典》有二十六个条文明示规定了诚信原则或善意问题,有两个条文不明确地规定了善意问题。但应看到,我国仍然实行诚信与善意的两分制,未建立统一的诚信原则。而且,缺乏对“善意”的正确界定。把“不得对抗第三人”改为“不得对抗善意第三人”架空了法定的登记公示方式。另外,诚信条款的配置不均衡,四个需要规定诚信条款的分则编即人格权编、婚姻家庭编、继承编和侵权责任编无或少此等规定。诚信规定的配置上存在重财产法轻人身法的倾向。

The basic principle attributes of the basic principle of good faith have been fully embodied in China. There are26 articles in the Civil Code that stipulate the principle of objective good faith or good will,and two articles indefinitely stipulate good will. However,it should be noted that China still implements the dichotomy of good faith and good will,and has not established a unified principle of good faith. Moreover,there is a lack of a correct definition of good will. Changing “not to oppose third parties”to “not to oppose third parties with good will”has overhead the legal way of registration and publicity. In addition,the allocation of good faith clauses is unbalanced. There are no or less provisions in the four sub provisions of good faith clauses,namely,the sub provisions of personality rights,marriage and family,inheritance and tort liability. the allocation of clauses of good faith is not balanced. The four books that need to specify clauses of good faith,namely,the book of personality rights,the book of marriage and family,the book of inheritance,and the book of tort liability have no or fewer provisions of good faith. There is a tendency of valuing property law over personal law in the allocation of good faith provisions.