Implementation of the good faith principle in civil legislation: issues of recodification

Iryna Sharkova,Oleksandr Gaydulin

doi:10.36695/2219-5521.4.2020.41

Abstract

The article is devoted to one important problem of recoding of the civil legislation in Ukraine – the process of further implementationof the Good Faith principle in Civil Code.It was generally accepted that the important step towards the modernization of the governing civil law is the re-codification oflegislation in force. It is for this purpose that Concept of modernization of the Civil Code of Ukraine (Recodification) was publishedby the end of 2020.The overall analysis of the Concept of modernization points to one important conclusion. The document involves it’s probablythe recodification of settled law and does not alter the main principles set out in Civil Code, although every change in legislation in anyparticular case requires a general explanation. It is unclear whether that process involves recodification or progressive development(post codification), but what was clear is that the system upgrade of civil legislation need to be done.In this paper a comprehensive analysis of the reception of Roman good faith principle in the modem civil legislation of Ukraineis performed. In the Roman Jurisprudence this natural law principle has got the name bona fides. In this research paper is determinedthat bona fide principle is an effective means counteraction to abuse of subjective civil rights.The meaning of good faith, though always based on honesty, may vary depending on the specific historical context in which itis used. As in Roman times well as nowthere two universal criterion of good faith: fair price and common sense. For example, a personbuys in good faith when he or she holds an honest belief in his or her right or title to the property and has no knowledge or reason toknow of any defect in the title.In the modern doctrine of private law good faith is defined generally as honesty in fact and the observance of reasonable commercialstandards of fair dealing.The process of reception of the good faith principle in the modern civil law is investigated separately. One can draw conclusionthat further development of civil legislation of Ukraine should be based on the classic concept of good faith (bona fides).With a view to enforcing this Concept of modernization, it is proposed to amend the following articles of the Civil Code ofUkraine: art. 3, 8, 12, 13, 229–233, 509. In these articles the principle of good faith is implemented.The main conclusion is that there is no need to detail this principle with due to the numerous casual norms.

Highlights

The process of reception of the good faith principle in the modern civil law is investigated separately
It is noted that though the doctrine of the standards of proof was developed in the common law countries, application thereof does not contradict the concept of judicial activism: an idea, according to which a decision must be made in favour of the party, whose statements are reliable not per se, but in comparison with statements of the adverse party, enables courts to make judgments in cases when positions of both sides are impeccable, and evidence for unequivocal conclusions is not enough
It is unclear whether that process involves recodification or progressive development (post codification), but what was clear is that the system upgrade of civil legislation need to be done

Summary

Introduction

The process of reception of the good faith principle in the modern civil law is investigated separately. It is noted that though the doctrine of the standards of proof was developed in the common law countries, application thereof does not contradict the concept of judicial activism: an idea, according to which a decision must be made in favour of the party, whose statements are reliable not per se, but in comparison with statements of the adverse party, enables courts to make judgments in cases when positions of both sides are impeccable, and evidence for unequivocal conclusions is not enough. Була опублікована Концепція оновлення Цивільного кодексу України.

Results

Conclusion