論我國民事訴訟誠信原則的適用範圍──兼論本土案例組的生成與反思

On the Scope of the Principle of Good Faith in Civil Procedure Law——also Discussing the Formation and Reflection of Local Cases Groups

我國民事訴訟誠信原則的重心是規制虛假訴訟、惡意訴訟、無理纏訴等不誠信訴訟行為，其適用範圍的釐定始終面臨當事人主義訴訟模式尚未最終建立、處分原則和辯論原則的約束性尚不充分的發展階段限制。隨著實體程序銜接和民刑交錯的規制體系逐步建立完善，誠信原則亟待夯實漏洞填補之固有功能。2013年以來較為豐富的裁判文書為本土案例組的生成提供了土壤，即以法官誠信原則和當事人誠信原則為基本分類，進一步延伸至法官禁反言原則、訴訟權利濫用規制原則、訴訟權利漏洞填補原則等兩類三種開放式本土案例組。法官誠信原則之適用呈現謙抑性，當事人誠信原則卻存在泛化理解與恣意判定。誠信原則不應替代具體制度成為直接裁判根據，不宜突破強制性訴訟規範，對濫用起訴權的判定宜遵循“排除一切合理懷疑”。當事人誠信原則的謙抑性有賴當事人主義訴訟模式的確立及其法典化的達成。

The ''Civil Procedure Law of the People's Republic of China'' was amended in 2012, with the addition of the first paragraph to Article 13, which clearly stipulates the principle of good faith in civil litigation. Article 13 of the Civil Procedure Law'', along with the paragraph 3 of Article 59, Articles 114, 115 and 116, form a structure including general and specific provisions. The purpose of the legislator in stipulating the principle of good faith in the Civil Procedure Law'' is to curb dishonest litigation behaviors such as false litigation, malicious litigation, repeated litigation, and unreasonable litigation. Through the development of civil procedure system, the principle of good faith in civil procedure exists within the developed adversary system, and it plays a role in correcting the traditional adversary' system. The adversary system has not been fully established in China. The true principle of disposition and principle of debate have not been established in Chinese Civil Procedure Law and also not applied in civil judicial practice in China. For the above reasons, the principle of good faith is likely to be abused in practice. There are mainly two topics for the studies on the scope of the principle of good faith in civil procedure, which are curbing dishonest litigation behaviors and introducing the case groups of the principle of good faith in civil procedure law from the perspective of comparative law. The former aims at the regulatory function of the principle of good faith in civil procedure, which means suppressing dishonest litigation behaviors represented by false litigation through targeted legislation, judicial interpretation, and judicial documents. The latter focuses on the filling function of the principle of good faith in civil procedure, which means filling the gaps in civil procedure legal system under the guidance of justice, and then systematically achieving the good faith in the parties' litigation behavior. In order to more scientifically define the scope of the principle of good faith in civil procedure, this paper has searched for civil cases that have been published since 2013, hoping to establish the local cases groups on this basis, The cases groups can be first divided into two categories: the judge's principle of good faith and the party's principle of good faith. The judge's principle of good faith is mainly manifested as the principle of estoppel of the judge. The party's principle of good faith is mainly manifested as the principle of regulating the abuse of litigation rights and the principle of filling the gaps in litigation rights. In judicial practice, the application of the principle of good faith to the judge's judgment behavior is relatively passive, on the contrary, the application of the principle of good faith to the party's litigation behavior is more active. The application of the principle of good faith should avoid generalization and adhere to restraint, which is manifested in three aspects: first, the principle of good faith cannot replace specific rules and can only be used when there are no specific rules; second, the principle of good faith cannot break through the mandatory provisions of the ''Civil Procedure Law'', such as the unchangeable period; third, the premise for the principle of good faith to exclude the right to sue is ''beyond all reasonable doubt''. Finally, only by fully establishing the adversary system in civil procedure and completing the codification of the new ''Civil Procedure Law'' can the principle of good faith truly achieve restraint in civil litigation. The principle of good faith in civil litigation faces issues of generalization in the long term. The establishment of local cases groups can effectively overcome its abstraction and ambiguity.