Author's note: The focus on the issue of goodwill comes from observations in real life. In today's era, kindness seems to be increasingly scarce, and it is also increasingly difficult to define. The thoughts triggered by this are how well-intentioned people should protect the law to a minimum, and what kind of rules and systems should be followed in the determination of goodwill. This article is just a stimulus to these topics. I hope that more legal research can focus on problems in real life and carry out more warm theoretical research. The writing of this article also benefits from the support and help of colleagues from the Institute of Civil and Commercial Law, Guanghua Law School, Zhejiang University. It is the "god" atmosphere of the Institute of Civil and Commercial Law, which allows those seemingly irrelevant thoughts and discussions to be presented to everyone.
Note: This article was published in the 4th issue of "Legal Research" in 2020, and is reproduced from the official account of "Legal Research".
This article has a total of 24,504 words. It is recommended to read time 50 minutes
Abstract: The good intention of applying trust protection in private law is universal and diverse. In essence, goodwill is the result of evaluating the cognitive state of the private law subject, which is the inconsistency between the appearance of trustworthy facts and the real situation. Such unknown evaluations should be based on the development history of good faith and their recognition characteristics, and the benefits can be measured by negligence. Given the commonality of good faith and its recognition, in order to resolve disputes on the rules of good faith recognition, the trustworthiness of facts can be trusted as the main line and systematically constructed rules for the recognition of good faith. Among them, the degree of trustworthiness is the basis for hierarchical distinction of types of good faith identification, and the standard formed based on this uses negligence as the hierarchical coordination factor. The general degree of trustworthiness plus the factors affecting specific trustworthiness determine the substantive consideration factors and procedural selection in the specific identification of goodwill. Based on this, the substantive standard judgment elements of "not knowing" and "not knowing because of negligence", as well as general presumption and conditional presumption procedural development methods can be formed, and a system of good faith recognition rules guided by systematic thinking can be finally built.
Keywords: Good faith identification; trustworthy facts; general trustworthiness; specific trustworthiness
Directory
1. Propose of problems
2. Good faith and the essence of recognition
(I) Good faith as the result of cognitive state evaluation
(II) Good faith identification as legal value judgment
3. Type level of good faith identification
(I) Trustworthy degree as the standard for type distinction
(I) Good faith identification
(I) Trustworthy degree as the standard for type distinction
(I) Good faith identification
(I) Good faith identification as the standard for type distinction
(I) Good faith identification
(I) Trustworthy degree as the standard for type distinction
(I) Good faith identification
(I) Trustworthy degree as the standard for type distinction
(I) Good faith identification
(I) Trustworthy degree as the standard for type distinction
(II) The degree of trustworthiness of trustworthiness is distinguished by the degree of trustworthiness of trustworthiness
(II) The level of good faith identification is distinguished by the level of good faith identification
(I) The entity standard of good faith identification
(II) The procedural method of good faith identification
Conclusion
1. Problem posed by the problem
Good faith is a common expression and requirement in private law. Various regulations are complex, and the most valuable researcher is the good faith in trust protection. Some regulations of [1] have clear statements on "good faith", such as the good faith in the system of obtaining good faith stipulated in Article 106 of (HTML Civil Code Article 311), the good faith in the special property rights change rules stipulated in Article 24, 129, and 158 of (Article 225, 335, and 374 of [3] General Principles of the Civil Law (Civil Code) shall not confront the good faith in the rules. Some regulations of [4] imply the requirements of "good intention", such as "there is reason to believe" in Article 172 of the General Principles of the Civil Law (Civil Code), and "know or should know" in Article 50 of the Contract Law of [5] (Article 504 of the Civil Code). [6] However, the provisions of goodwill are scattered in different articles of private law, resulting in the existing research focusing on the introduction of the system attached to it, and there has been no systematic and comprehensive overall research so far.[7]
Although the good intention of the third party means "not knowing", it is common to say that [8], there is no conclusion on what "not knowing" and how to judge "not knowing". First of all, there is still controversy over the recognition standards for good faith within the same system. For example, in view of the goodwill in the system of obtaining goodwill in movable property, some argue that "unawareness" has nothing to do with faults based on the subjective attributes of goodwill; [9] may believe that although it has nothing to do with faults, it is not goodwill when judging the transaction experience based on objective situations; [10] also believes that goodwill is "not known and not known" (i.e., "not knowing because of faults"). [11] Chinese law takes Article 932 of the German Civil Code of as a reference, and believes that the goodwill in the good faith acquisition of movable property is "not known and not known by gross negligence." [12], but it does not distinguish between real estate and movable property as in the German law. [13] Secondly, the reasons for the differences in the standards for good faith recognition between different systems have not been revealed, and the relationship and judgment levels of different standards for good faith recognition have not been paid attention to and explained. The goodwill in good faith in obtaining goodwill in my country and the goodwill of a third party in the express agency are adopted different criteria for identification. The former is "not for knowing and not for gross negligence", and the latter is "not for knowing and not for negligence." [14] The existing dispersibility study does not clarify the reason for this difference, and the lack of system thinking has also led to constant controversy about good faith identification. [15]
In addition to the entity recognition standards, the method of good faith program recognition is also controversial. Because good intentions often use the negative expression of "knowing or should know that it is not good intentions", the presumption model is generally adopted in the procedure. [16] However, whether the presumption must lead to the inversion of the burden of proof, is there no conclusion on whether goodwill in private law should be used to presumption or other ways of determining whether there is any presumption. [17]
can be seen that the standards and procedures for identifying good-faith entities in private law are both controversial. Although each system involving good intention has its own specific purpose, it shares the idea of trusting and protecting those who are kind. [18] Therefore, each good intention identification is actually related to each other. Only by establishing the standards and methods of recognition in the system and integrating entities with procedures can the recognition of good intention be more convincing. In view of this, this article intends to conduct a systematic study on the recognition of goodwill in private law, and thus build a system of rules for goodwill in private law. [19]
2. Goodwill and the essence of recognition
(I) Goodwill as the result of cognitive state evaluation
1. Trustworthy facts as cognitive object
3 Goodwill has a distinction between positive and negative concepts, the latter only needs to know that others are not the right holders, and the former must have the positive belief of others as the right holders. [20] generally believes that the requirements for positive concepts are too harsh, so the legislative regulations of various countries are mainly based on "negative concept theory". [22] my country also adopts the "negative concept theory". [23]
From the etymology, goodwill originated from the Latin word "bona fides", which means "uninformed", [24], but it does not actively believe that the facts are true. In terms of normative expression, good intention is usually defined by "knowing or not", and the negative expression is "knowing or should know" is not good intention, such as Article 50, Article 151, Article 158, Paragraph 3 of the Contract Law of my country (Article 504, Article 613, Article 621, Paragraph 3 of the Civil Code), Article 122, Article 173, Article 405, Article 932, Paragraph 2 of the German Civil Code, etc. As a result, goodwill only expresses the negative concept of "unknown". "Unknown" is a cognitive state based on its meaning. Legally expressing "unknown" with good faith is actually evaluating this cognitive state of the subject of private law as good faith.
However, as the result of evaluating a cognitive state, goodwill must require the private law subject to have a specific cognitive object. What kind of emotions the private law subject uses as the cognitive object and then evaluates as goodwill still needs to be further defined.From the perspective of cognitive theory, people complete their understanding of the essence of things by observing the appearance of things. Representation is an external phenomenon displayed by things and a representation of the true situation of things. We can only study the true situation of things through observation of external appearances. [25] Observation is a human cognitive process, in which people input appearances into their own perception system and respond based on this information. The subject of private law also judges the true legal relationship from various appearances. For example, in an agency relationship, the counterparty can only judge whether the perpetrator has agency rights from the appearances such as power of attorney and blank contract. In other words, the perception of facts by private law subjects is actually based on the perception of the appearance of facts. Generally speaking, if the appearance is consistent with the real situation, no legal dispute will occur; only when the appearance is inconsistent with the real situation, it is necessary to judge whether the private law subject is aware of the inconsistency and evaluate this cognitive situation with good intentions.
Legally, the well-intentioned Latin word "bona fides" is equivalent to "good faith" in English, and [26] is consistent with "guter Glaube" in German, and both literally means "good trust". This means that trust is not built on nothingness. Only with the foundation of trust can one become "good" trust, that is, good intentions. "Good" trust means that the facts recognized by the private law subject are trustworthy at least on the surface. If everyone can easily distinguish the authenticity and draw conclusions that the appearance is not trustworthy, there is no good intention to say. The reason why a certain appearance cannot be easily distinguished is because under the supply of the corresponding system, the appearance and the real situation are synchronized and consistent, that is, the appearance usually reveals the real situation, so that the appearance can be trusted. The fact that appearances and real situations are synchronous and consistent, and is trustworthy due to the institutional guarantees of synchronous and consistent, and is called Vertrauenstatbestand. Based on this, trustworthy facts become the cognitive object when the subject of private law is manifested as good intentions.
2. Characteristics of trustworthy facts
As the basis for trustworthy behaviors, trustworthy facts should first be trustworthy, and at the same time, they should also be an important fact that can be recognized in people's interactions. But the doctrine is controversial about which facts can become trustworthy facts. For those who are limited to "the appearance of the behavior of the parties to the transaction", [27] has been expanded to "the facts outside the legally important factors such as subject qualifications, rights status and expressive behavior", [28] has been summarized as "expressed facts". [29] For this, it is necessary to combine the characteristics of trustworthy facts for further analysis.
First, trustworthy facts should be trustworthy, which means there is a guarantee that the appearance of trustworthy facts and the real situation are synchronized and consistent. Such protection comes from the internal logic of the system related to trustworthy facts. For example, real estate registration is used as a requirement for the change of property rights, so that the parties to the transaction can register actively and correctly, so as to ensure that the real estate registration situation is synchronized with the real situation. This consistency guarantee mechanism for trustworthy facts exists legally as a standardized system, but the consistency guarantee mechanism for different trustworthy facts has differences in standardized supply, which will lead to differences in synchronization consistency, thus forming trustworthy facts with different degrees of trustworthiness. In addition, the credibility of trustworthy facts is not only affected by the internal normative system, but also by the external environment in which they are located, such as the trading place where trustworthy facts are located, the timing of related transactions, etc. The credibility of trustworthy facts affects the determination of goodwill and is the core basis for the construction of a goodwill rule system.
Second, trustworthy facts are an external fact, but not all perceived facts can become trustworthy facts. Trusted facts arise from a certain legal relationship, which points to a counterparty. For example, A claims to B that C is a partner of Partnership A, and at this time there is no trustworthy fact for C. When C knows or tolerates A's words, there is a trustworthy fact that "C is an apparent partner."Therefore, trustworthy facts are directed, not simply "behavioral appearance" or "expressive facts".
Third, the inconsistency between the appearance of the facts and the real situation is continuous. This inconsistency can only be made effective for the counterparty when the counterparty has completed the relevant behavior. If the fact that the equity transferor is registered in the commercial registration book causes the counterparty to believe that the transferor is consistent with the real right holder based on this appearance. After the equity transfer transaction is completed, the counterparty will know that the registered right holder is inconsistent with the real right holder. Only in this case can the relative talent claim protection based on the facts of equity industrial and commercial registration.
Fourth, trustworthy facts as facts in legal relationships must have legal significance to the counterparty, that is, the reason why the facts are given legal attention is that they are sufficient to affect transactions and other behaviors. However, this fact does not only involve facts such as acts, subject qualifications, status of rights or expressions, but is usually a fact related to the general requirements for legal acts and has been defined by the law. The general requirements for establishing a legal act include: parties, subject matter, and expression of intention. [30] trustworthy facts can be summarized from these perspectives: (1) facts related to the identity of the parties, such as the right to membership of the organization; (2) facts related to the rights of the parties, including the right to dispose of the right (including the requirements for the subject matter), the right to represent, the scope of business, etc.; (3) facts related to the expression of intention, including clear words, inferred behavior, and behavior under trading habits, such as written words granted by the agency, tolerance for others as agents, and silence as consent in commercial practices, etc.; (4) other facts that are sufficient to affect the behavior of the counterparty, such as announcements of listed companies, general company announcements, organizational forms and business places in commercial registration. [31]
Due to differences in transactions and related behaviors, case-by-case judgments still need to be made on what is a trustworthy fact. For example, in general transactions, the parties do not pay attention to the other party’s identity, but in other transactions (such as those involving identity behavior or solvency), the appearance of the identity may affect the behavior of the counterparty (such as transactions with a partnership or limited liability, where there is a difference between a partner or shareholder’s unlimited liability or limited liability in transactions with a partnership or limited liability).
(II) As a good faith recognition as legal value judgment
1. Value judgment attributes of good faith recognition
First, from the historical development of good faith, good faith originated from the concept of integrity in Roman law and has ethical and moral attributes, among which "fides" and "bonus" are themselves ethical concepts. The former refers to the virtue of "faith", and the latter means "good". [32] Therefore, from the etymology, it originally implies the attributes of value judgment. At the same time, historically, integrity has been distinguished into objective integrity and subjective integrity. Goodwill originates from the concept of subjective integrity, which is aimed at the internal psychology of the subject and is different from the objective integrity targeting the external behavior of the subject. [33] Subjective integrity and objective integrity are derived from the social ethical factor of trust (trust) in social life. Based on the consideration of ethical factors, both of them consider whether the subject has subjective factors such as intentional and negligence. [34] Therefore, only based on forgiveable mistakes is ignorant. Whether the [35] error is forgiven, it has shifted from simple fact judgment to value judgment, and is closely linked to the concept of fault.
Second, from the perspective of the recognition process of good intentions, as a subjective psychological state, it is difficult to make a completely objective determination. Like the perception of all things, a person's subjective psychology can only be judged from external manifestations. Therefore, the process of identifying goodwill can only judge the subjective psychological state from the objective performance of the actor. However, to judge the subjective psychological state from objective facts, value judgments still need to be made based on the principles established by the law.
Third, from the perspective of the entity considerations of good faith identification, it not only considers the individual external objective facts, but also needs to be determined in a comprehensive manner such as the behavior of the parties and the environment in which they are located; [36] may be considered in combination with the transaction venues in the individual case, the relevant disciplinary person, the subject matter, market information and other relevant transaction backgrounds. [37] comprehensive recognition is no longer a simple fact determination, but a combination of many factors to judge whether it constitutes goodwill based on legal value orientation. Therefore, the nature of good faith determination has also been transformed from fact determination to legal value judgment. [38] This is in line with the objectiveization of subjective psychological judgments such as negligence. [39]
Fourth, from the perspective of the procedural development method of good faith recognition, it is carried out in a presumptive way. Therefore, good faith is not a fact that is directly discovered, but a judgment based on a series of facts. This kind of judgment requires reference standards, that is, whether the perpetrator is aware of it based on a general rational person or a normal situation. However, these judgment benchmarks do not exist in reality, but the conclusions drawn by the referee through the summary of past cases and his own knowledge and experience. Therefore, the reference benchmark based on the procedure for good faith recognition is not an objective fact, and its determination itself inevitably has subjective value judgments.
In summary, whether goodwill or not is, the evaluation of the cognitive state of whether the appearance of trustworthy facts is consistent with the true situation is a value judgment. The core of value judgment is to protect the cognitive state of the private law subject and to measure interests. Clarifying the value judgment attributes of good faith recognition prompts us to recognize that good faith recognition contains a measure of benefits for values such as transaction security and efficiency. There must be specific equilibrium factors for measuring interests. The equilibrium factor in the good faith identification process is the negligence requirement closely related to this determination.
2. Negligence is an equilibrium factor for value judgment
The reason why negligence can be used as an equilibrium factor for measuring interests in the process of good faith identification is, in addition to the historical development of good faith that reveals that good faith has included considerations for negligence when it is subjective integrity, more importantly, negligence requirements can more reasonably allocate information costs and risks between parties, thereby achieving the evaluation of interests for transaction security and efficiency.
is the goodwill of the cognitive state evaluation result. The core of its determination is to judge whether the civil subject is aware of the inconsistency between the appearance of trustworthy facts and the real situation. There are two situations for knowing: one is obvious knowledge, which is the state of knowing; the other is that knowledge should be known based on comprehensive judgments such as trading experience and common sense, which is the knowledge of nature. [40] Under the knowledge, third parties can avoid improper transactions without spending costs to verify. Compared with the regulatory costs of those who are consistent with the true situation (potential responsible persons), third parties who know that they are inconsistent will pay lower costs. Therefore, good faith protection for such third parties should be excluded and they should bear the risks. However, if the third party does not know the inconsistency between the appearance and the real situation, but only doubts, and they need to pay the corresponding cost to verify. Whoever bears the risk at this time depends on the degree of attention obligation of the third party, so it is more reasonable to allocate the risk. [41] When a third party is obliged to be careful about verification, it should be aware of it. The expression of "should be aware" in German law is "kennen mustste", which contains the obligation of attention that must be known in the meaning of the word. Violating this obligation of attention and not knowing it is not in good faith. Violations of obligations of care are negligence, so in Article 122 of the German Civil Code, "should be aware" is equivalent to "infolge von Fahrlässigkeitnicht kannte"; the title of Article 173 of the German Civil Code corresponds to the "kennen muss" in the law, which also indicates that the two should be treated equally. In summary, "should be aware" itself contains the requirement of duty of care and is a matter of negligence judgment.
Negligence requirements enable better development of value judgment and interest measurement in the process of good faith determination.When objective affairs provide a third party with sufficient warning that "the appearance of trustworthy facts may be inconsistent with the real situation", the third party should fulfill its minimum obligation of attention to prevent deviations in one's own cognition. If a third party fails to pay attention to the corresponding warning and causes himself to be in cognitive errors, if he still believes that he is in good faith, he will over-protect the third party in the measurement of interests, resulting in an imbalance in interests. [42] Thus, negligence requirements can reasonably allocate the burden of information costs, and [43] makes the measurement of interests in good faith protection more reasonable. The requirements for the degree of negligence in good faith in different situations are also different, and the degree of negligence can become a distinction mark for different standards for good faith identification.
3. Type level of good faith recognition
(I) The degree of trustworthiness is the standard for distinguishing type
There are different recognition standards for good faith in private law. Generally speaking, when real estate registration is used as a cognitive object, it is only required to "not be aware of it", and when movable property possesses as a cognitive object, it is also necessary to "not be aware of it because of gross negligence." When [44] commercial registration as the object of cognition, good faith must be "not known and not known because of gross negligence"; when [45] agent authorization letter and other agent rights appearance as the object of cognition, it must be "not known because of knowing and not knowing because of negligence". [46]
is because goodwill is the result of evaluation of the cognitive status of the subject of private law, and this evaluation must be subject to the status of the cognitive object. A good faith evaluation is based on the trustworthiness of trustworthy facts. If a fact is not reliable, that is, when the inconsistency between its appearance and the real situation is obvious, it does not have the possibility of not being aware of such inconsistency, and therefore cannot be evaluated as good faith. Trustworthiness comes from the synchronization consistency between appearance and real situation, but there are differences in the synchronization consistency between appearance and real situation of different trustworthy facts. Therefore, there are also differences in the trustworthiness, such as the highest degree of trustworthiness of real estate registration, followed by commercial registration, and the lowest power of attorney outside of registration. It is precisely based on the different degree of trustworthiness of trustworthy facts that changes in the requirements for good faith determination of different trustworthy facts occur. In terms of comparative law, some scholars have also raised the standards for good faith identification of non-commercial registration facts based on the different degree of trustworthiness of commercial registration and non-commercial registration facts. [47] has different standards for good faith identification of real estate registration and movable property possession, because the land registration book has a stronger trust basis than possession. [48]
Therefore, different trustworthy facts show differentiated trustworthiness, and good faith recognition also changes accordingly. If the appearance and the real situation are highly consistent, the obligation of attention such as investigation and verification by the kind-hearted person will decrease, and the standards for identifying goodwill will decrease accordingly; otherwise, the burden on the kind-hearted person will increase and the standards for identifying goodwill will be increased. [49] The determination of good faith can be distinguished from different standards and thus forms a type of distinction of good faith recognition.
(II) The trustworthiness of trustworthy facts distinguishes between
The trustworthiness of trustworthy facts is related to the degree of "synchronization and consistency between appearance and real situation", but this judgment only comes from the internal logic of the trustworthy fact system itself, and the external environment that affects the trustworthiness of trustworthy facts also includes the external environment in which it is located. In this way, from the perspective of cognition, a distinction between general trustworthiness and specific trustworthiness is formed. Among them, general trustworthiness comes from the standardized institutional logic of trustworthy facts itself, which is a general cognition; specific trustworthiness comes from the changing external environment in which trustworthy facts are located, which is a specific cognition. The specific trustworthiness is affected by the trading field in which the trustworthy facts are located, the target, the duration, and the combination with other trustworthy facts, and changes with the case situation.What the influencing factors of specific trustworthiness changes is the external cognitive environment of trustworthy facts, and does not change the internal logic of trustworthiness of trustworthy facts. Therefore, specific trustworthiness is a specific correction of general trustworthiness and does not change the level of trustworthiness. [50] At the same time, the factors affecting specific trustworthiness are generally considered in the specific identification of good faith. For example, after Article 15 of "Interpretation of Property Law I" determines the recognition standards for good faith, it stipulates specific provisions for the registration of real estate and the identification of movable property in Articles 16 and 17 respectively. From this perspective, specific trustworthiness is a more detailed impact on good faith identification, while general trustworthiness is a fundamental impact on good faith identification. To this end, general trustworthiness can be used as the basis for distinguishing the hierarchical types of normative standards for good faith identification.
Trusted facts can be both a display of rights information and a display of status information. At the same time, there are also different information display carriers. Through the review of the current laws, depending on the information carrier, trustworthy facts can be divided into registration (including real estate registration, commercial registration, etc.), status (occupation), commercial registration (listed company announcements, general company announcements, etc.), words with transactional significance outside of registration (written form: power of attorney, meeting minutes, etc.; oral form) and behavior (various behaviors that represent agents or representatives, various behaviors that represent partners and other member rights, and behaviors that conform to trading habits).
There is a mechanism to ensure the synchronization and consistency between appearance and real situations in the institutional logic of these trustworthy facts. Taking real estate registration as a reference template, the specific system that ensures the synchronization and consistency of appearance and real situation can be distinguished into internal guarantees and external guarantees. Among them, internal protection focuses on whether trustworthy facts are used as factors for the change of rights or status, or whether they are used as factors for the change of rights or status, and whether they have presumptive effect, etc.; external protection focuses on whether trustworthy facts are compulsory and reviewed, and whether they are punished because of inconsistent appearance and the real situation (punishment by public law and punishment by private law), etc. The different degree of institutional guarantee for the synchronization and consistency of the appearance of trustworthy facts and the true situation constitutes the difference in their general trustworthiness. This can be distinguished as follows:
1. Real estate registration
Real estate registration is an internal guarantee mechanism and is a requirement for the entry into force of rights and has presumptive effect. [51] When real estate registration is a requirement for the change of rights to take effect, the parties to the transaction will actively register to ensure the transfer and acquisition of rights. At the same time, based on the presumptive effect of the real estate registration book, the real right holder will also actively pay attention to the status of real estate registration to ensure that the rights they enjoy have been correctly registered. Therefore, the real right holder can be encouraged to actively register and ensure the correctness of the registration. [52] In terms of external guarantee mechanism, real estate registration is mandatory for the national unified registration, and the registration authority adopts a substantive review model. Incorrect registration will also cause the rights of the real right holder to be unfairly acquired by real estate, etc., to be unfairly benefited by private law. To this end, real estate registration has the most comprehensive institutional guarantees and is called credibility because of its high degree of trust. [53]'s institutional guarantee mechanism can be used as a reference template for judging the degree of trustworthiness of other trustworthy facts and can be marked as the highest level.
2. Moving property possession
possession, as a special property right state, also has the characteristics of representing the rights behind it. It is generally believed that possessing an external state and actual situation has the slightest degree of "ninety or ninety", and its appearance and reality are synchronous and consistent. The internal guarantee mechanism behind this is, on the one hand, that possession and its transfer (delivery) are the requirements for the change of movable property rights; on the other hand, that possession also has presumptive effect. [55] is an effective requirement, which prompts the parties to actively transfer possession to ensure that the rights have been changed effectively; and because of its presumptive effect, the real right holder also actively pays attention to the possession situation to ensure its control or to choose an upright direct possessor.In this way, possession also has a system supply that ensures synchronous and consistent appearance with the real situation. However, due to the strong demand for the utilization of things, the separation of possession and all has become the norm. [56] At the same time, possession is different from registration after all. The external guarantee mechanism lacks the support of national coercive force and does not have necessary verification and supervision. Therefore, although it can also be called credible, its trustworthiness has decreased and can be marked as being upper-middle.
3. Commercial registration
Commercial registration is only a confrontation factor for rights or changes in status, and its presumptive effect is also weaker than real estate registration and possession. [57] In terms of external guarantee mechanism, although commercial registration has national mandatory requirements, it focuses on formal review. [58] Improper commercial registration will also be punished by private and public laws. For example, Article 29 of the "Regulations on the Registration and Administration of Enterprise Legal Persons" stipulates administrative penalties for corporate legal persons to conceal the true situation and commit fraud during registration. In addition, administrative and criminal liability of their legal representatives will be pursued. However, due to the weakening of the internal guarantee mechanism and the decline in external review, the trustworthiness of commercial registration has also decreased. However, considering that commercial registration still has the attribute of mandatory registration and the subject of commercial registration obligations has a higher obligation to pay attention to the correct registration, its trustworthiness has not decreased significantly compared to possession and can be marked as mid-range.
4. Class commercial registration facts
In addition to commercial registration, there is also an information transmission mechanism for commercial announcements, typical examples are listed company announcements and general company mergers, divisions, reduction of registered capital or liquidation announcements. In an internal guarantee mechanism where appearances and real situations are synchronized, announcements of listed companies are not a requirement for the entry into force (or confrontation) of changes in rights or status, nor have presumptive effect, and are only a method of information disclosure. In terms of external guarantee mechanism, Article 78, Paragraph 2 of the Securities Law stipulates that the information disclosed through announcements of listed companies should be true, accurate and complete. Otherwise, according to the following articles of Article 181 of the Securities Law and various regulatory norms of the China Securities Regulatory Commission, listed companies will be subject to a series of administrative and criminal penalties. [59] In addition, in accordance with Article 93 of the Securities Law and the "Several Provisions of the Supreme People's Court on the Trial of Civil Compensation Cases Arising from False Statements in the Securities Market" (Fashi [2003] No. 2, hereinafter referred to as the "Securities Market False Statement Compensation Regulations"), defects in announcements by listed companies will also cause private law punishments such as civil compensation. To this end, listed companies have mandatory requirements for timely announcements. If the announcement is inappropriate, they will be punished by public law and punished by private law. However, due to the lack of national support, all information is reviewed by the announcement subject itself, which is weaker than registration in ensuring the consistency between the announcement information and the real situation. Therefore, it can be inferred that the trustworthiness of a listed company announcement should be lower than that of a commercial registration. However, due to the continuity of securities supervision and the professionalism of information disclosure content, compared with investors, the announcement subject has more motivation and ability to conduct full review to ensure the consistency between the announcement information and the real situation. Therefore, its trustworthiness can still remain comparable to commercial registration, only slightly lower, and can be marked as mid-range lower.
Similar to the announcement of listed companies, there are also general company announcements, mainly involving the merger, division, reduction of registered capital or liquidation of companies. This kind of announcement is only a way to disclose information and there is no strong internal guarantee mechanism. However, in terms of external guarantee mechanisms, Article 204 of the Company Law stipulates administrative penalties for not being announced in accordance with the law. In theory, improper announcements may also cause relevant entities to bear private law responsibilities based on violations of the "obligation of loyalty and diligence" stipulated in Article 147 of the Company Law and the "liquidation obligation" stipulated in Article 189 of the Company Law. However, general company announcements are targeted at specific creditors, and information transmission can be completed through notifications, so that the incentive to ensure the correctness of the announcement is less than that of the announcements of listed companies. To this end, the trustworthiness of general company announcements is weaker than that of listed company announcements. However, considering that their information display logic is the same, the trustworthiness of general company announcements can belong to the same level, but they belong to the lowest level in this level and can be marked as the lowest level in the mid-range.
5. Facts with transactional significance outside of registration
Words and behaviors with transactional significance outside of registration can also become trustworthy facts, but they lack an internal guarantee mechanism that is synchronized with the true situation. For example, the appearance facts of the agency rights such as power of attorney are not the entry into force or confrontational requirements for the grant of the agency rights, and do not have presumptive effect, and there is no direct punishment under the state and public law. However, in terms of external guarantee mechanisms, there is at least the possibility of private law punishment, such as the third party being held liable for improper selection of an agent or representative. Therefore, facts with transactional significance outside of registration can only ensure the synchronization and consistency between appearance and the real situation through private law punishment. They are the lowest in trust and can be marked as the lowest level. Even so, there are differences within facts that have transactional significance outside of registration, which can be further distinguished into written words (written evidence type), inferred behavior, oral words, etc. The three also decrease in trustworthiness due to the decrease in the effectiveness of evidence (the possibility of private law punishment).
(III) Distinguish according to the type level of good faith recognition
According to the general level of trustworthiness of the above trustworthy facts, the normative standards for good faith recognition can be distinguished into different type levels through the degree of negligence in theory and empirical methods.
First, for good faith in real estate registration, only "not knowing", while good faith in possession of movable property also requires "not knowing it because of gross negligence". As mentioned earlier, this is a general statement in Germany. The reason is that the real estate registration is more reliable than the movable property possession. In our practice, we also believe that "because the credibility of possession is lower than that of registration, the two need to be treated differently." [60] However, Article 15 of my country's "Interpretation of Property Law" unifies the good faith in real estate registration and possession of movable property into "not knowing and not knowing because of gross negligence." The reason for such provision is that Article 2 of "Interpretation of Property Law I" is based on the facts of real estate registration in my country, and [61] compromisely reduces the credibility of real estate registration. Secondly, according to Articles 36 and 37 of the German Land Registration Regulations, changes in real estate property rights must be provided in the form of a notarized certificate. The notarization process enhances the guarantee that the registration status is consistent with the actual situation. This requirement is not required by our country's law, and the trustworthiness of real estate registration is reduced compared to the comparison. Finally, Article 16, paragraph 2 and Article 17 of the "Interpretation of Property Law" stipulate the gross negligence in the case of real estate and movable property respectively. There are obvious differences in the obligation of paying attention to the gross negligence, thus forming an internal level of good faith recognition.
Second, in response to good faith in commercial registration, Article 65 of the General Principles of the Civil Law (Civil Code) and other standards for good faith do not clarify the recognition standards for good faith. In terms of comparative law, Article 15, paragraph 1 and paragraph 3 of the German Commercial Code both adopt the "not knowing" standard for good faith in commercial registration. [62] also theoretically believes that the third party’s non-good faith at this time does not include ignoring the ignorance of gross negligence. [63], but this is related to Germany's commercial registration system. According to Article 12 of the German Commercial Code and Article 8 of the German Commercial Registration Regulations, application materials for commercial registration generally must be notarized before they can be submitted, thereby improving the synchronization and consistency between the registration status and the real situation. Therefore, only in German law will the "not knowing" standard for good faith trust in commercial registration. In contrast, my country does not have notarization requirements for commercial registration materials, so good faith in commercial registration cannot be only required to "not be aware of it".
On the other hand, Article 16, paragraph 3 of the German Limited Liability Company Law adopts the standard of "not knowing and not knowing because of gross negligence" for the shareholder list. Although the shareholder register is not a direct commercial registration matter, judging from the statement of Article 16, paragraph 1 of the German Limited Liability Company Law, the shareholder register is "included" in the commercial registration book. Today, when commercial registration has been electronicized, the shareholder register is included in the parallel registration folder (Registrierordner) just like other matters in commercial registration. As a result, the shareholder register is in form similar to other registration matters submitted by the commercial organization.In addition, according to Article 15, Paragraph 3 and Article 40, Paragraph 2 of the German Limited Liability Company Law, the shareholder register must also be submitted after notarization, and the timely and correct changes in the shareholder register are ensured through director liability, which is comparable to the internal guarantee mechanism such as the confrontation factor for changes in rights or status. However, the shareholder register will not be reviewed by the registration authority in more depth, which has led to the fact that the shareholder register in German law is similar to commercial registration, but its trustworthiness has decreased. In contrast, my country's commercial registration is closer to the shareholders' roster in terms of trustworthiness protection. Therefore, the good faith in my country's legal practice for commercial registration should also be added to the requirement of "not being unaware of it because of gross negligence".
Third, in response to good faith in commercial registration facts, Article 19 of the "Securities Market False Statement Compensation Regulations" regards "Investment made knowing that the existence of false statements" as a situation where there is a causal relationship between "false statements and damage results". However, this article ignores the causal relationship for only objective judgment, and "knowingly" refers to the subjective aspect, that is, the requirement of good intention. The subjective non-good intention of investors does not dictate causality, but will lead to the loss of the protection basis. [64] The judicial interpretation only requires "not knowing" good faith for commercial registration, which does not conform to the actual situation in the securities market. On the one hand, investors in the securities market should know that investment is risky and have the corresponding obligation to pay attention to information identification; on the other hand, the trustworthiness of commercial registration has not been greatly improved due to the sustainability of supervision, and it is only comparable to the trustworthiness of commercial registration. To this end, the standard for the recognition of good faith announcements for listed companies should also require that "not be aware of the problem of gross negligence", but the specific recognition rules should be different from the good faith for commercial registration.
In terms of non-listed company announcements, although its trustworthiness is lower than that of listed company announcements, it is still at the same level as listed company announcements compared with facts other than registration. Therefore, the standards for good faith identification of announcements by non-listed companies are still adopted as "not knowing and not knowing because of gross negligence", but there will be differences in the judgment of gross negligence, that is, there will be differences in the standards for the third party's obligation of attention. This is the same as the normative standards for good faith in Articles 15-17 of the Interpretation of Property Law 1, but the practice of differentiating the determination of gross negligence.
Fourth, in response to good faith in facts outside of registration, the current law generally adopts the standard of "not knowing and not knowing because of negligence". If you express good intentions in the agent, it is generally believed that the standard of "not knowing and not knowing because of negligence" should be adopted; The Supreme People's Court also adopts the same viewpoints as and practice. [65] In addition, according to Article 50 of the Contract Law (Article 504 of the Civil Code), goodwill in commercial representations is not the standard of "knowing or should know", where "being aware" means "not knowing because of negligence". [66] Comparative law, Articles 107 and 169 of Taiwan Civil Law, and Article 122 of Japan Civil Law also adopt the same standards. In fact, empirical law has mostly good intentions for facts other than registration. For example, in Article 149 of the General Principles of Civil Law (Civil Code), if the counterparty of the contract does not know or should not know that the third party is fraud, it is in good faith, and the other party of the contract loses the right to revoke the expression of intention made due to fraud; in Article 167 of the General Principles of Civil Law (Civil Code), if the agent does not know or should not know that the agency matters are illegal, it is in good faith, and the agent does not have to bear joint and several liability, etc. [68] others, such as Articles 145 and 170 of the General Principles of the Civil Law (Civil Code), Article 74 and 169 of the Contract Law (Article 539 of the Civil Code, Article 636 of the [69]), etc., are also good faith in response to facts other than registration. However, there are still differences in the degree of trustworthiness in the facts themselves outside of registration. These differences need to be reflected by the criteria for identifying negligence in specific cases, and also need to be balanced by procedural law.
In summary, under the general trustworthiness of trustworthy facts, the standardized standards for good faith identification use negligence as coordination factors to form a certain type level. However, the specific determination of goodwill is also subject to factors that affect specific trustworthiness.At this time, in addition to having an impact on the judgment of entity standards for good faith recognition, these factors will also affect the procedural method of good faith recognition, that is, to achieve a more detailed balance of various types of good faith recognition through the distinction between general presumption and conditional presumption.
4. Specific identification of goodwill
In the specific identification of goodwill, the first thing to do is to determine the trustworthiness level of the trustworthiness facts targeted by goodwill is at which the above-mentioned type level, and then clarify its normative standards, and then make a specific identification. Because good intentions usually adopt the negative provision, that is, to exclude good intentions through "knowledge", the specific determination of good intentions is to determine on the one hand what is clear and what degree of negligence is not known; on the other hand, to clarify in the procedural way of making specific judgments. In addition to being affected by general trustworthiness, both are also affected by specific trustworthiness. By analyzing the impact of general trustworthiness and specific trustworthiness on good faith recognition, we can explore the judgment elements and basis for the selection of procedural methods of the standard for good faith recognition, and then build a rule system for good faith recognition.
(I) Entity standard for good faith recognition
1. "Not know" identification
(1) Influence of information type
"Not know" is a lack of clear understanding of the inconsistency between the appearance and the real situation. Since the determination of good intentions often occurs from the opposite side, the specific identification of entities also begins from what is "knowingly". The determination of "knowingly" is first affected by the type of information that a third party can obtain. Different information types will affect the third party's judgment on whether the appearance of trustworthy facts is consistent with the true situation. The first type of information that a third party can obtain is the information displayed by the trustworthy facts itself. This part of the information is divided into two subtypes: (1) Information in the trustworthy facts that directly indicate that the appearance is inconsistent with the real situation, such as the information of the registration subject in the real estate registration book or the information of the principal in the power of attorney is obviously incorrect. If there is evidence that directly proves that the third party knows that the appearance is inconsistent with the real situation, if the third party has clearly stated that he or she knows it, it can be proved. If it is difficult to directly prove, it can only be done in a presumptive way. If the appearance of trustworthy facts can be found inconsistent with the real situation according to the standards of ordinary rational people, or the transferee is a participant in the registration error, and the transferee can of course understand the process of registration error, and it can be presumed to be known. [70] (2) Information that indirectly indicates that the appearance and the real situation are inconsistent, such as objection registration, preview registration and seizure registration in the real estate registration book; the financial statements in the announcement of listed companies have been issued by accounting firm , etc. By relying on the existence of these prompt information in the facts themselves, it is assumed that the third party knows that the appearance is inconsistent with the real situation. The first type of information is easier to obtain in trustworthy facts with a higher degree of trust, such as real estate registration, commercial registration, company announcements, etc.
For trusted facts with lower trustworthiness, it is easier to obtain the second type of information, that is, trust information other than facts. This can also be distinguished from two subtypes: (1) Information that can be directly proved that the appearance is inconsistent with the true situation beyond trustworthy facts. These external information with direct proof effect must be extremely persuasive and can be used as the basis for third-party cognition, such as the notification of the real right holder with an effective judgment, the notification of the revocation of the representative of the [71] enterprise, the notification of the correction of the announcement information of the [72] enterprise, etc. (2) Information that can be trusted beyond the facts that indirectly prove that the appearance is inconsistent with the true situation. This information may be directly known to a third party or indirectly known to a third party, such as knowing the error of the right holder in the real estate registration book through evidence provided by non-stakeholders, knowing that there are defects in the announcement of a listed company through media reports.[74] Compared with the prompt information that trusts facts themselves, the information that indirectly proves that the appearance and the real situation are inconsistent with the truth is limited in persuasion. A third party needs to verify and investigate to judge the credibility of the information. At this time, whether the third party has the obligation to verify the investigation and its degree of obligation becomes the core of consideration. This essentially involves the degree of duty of care and its violations. It is more reasonable to include it in "unknown due to negligence" for identification.
(2) Influence of information status
The determination of "knowing" is also affected by specific trustworthiness. For example, the additional information about trustworthy facts learned by a third party, the transaction object targeted by the trustworthy facts, etc., can all affect the judgment of "knowingly" in individual cases. The basis for determining whether the external conditions of trustworthy facts (i.e. factors that affect specific trustworthiness) have had an impact on the above information types.
For example, a third party may obtain information outside of trustworthy facts that directly prove that the appearance is inconsistent with the real situation, so the standard of "knowing" is lowered. If the third party is the staff member of the registration authority, and knowing that the shared house between A and B is only registered under A's name, and if A does not present B's authorization, he still trades with A, which should be deemed to be "knowingly". For example, when the transaction object that trustworthy facts are money or bearer securities, due to the requirements of transaction efficiency and security, its liquidity must be emphasized, and [75] increases the trustworthiness of its possession. [76] In this case, it is more difficult for a third party to obtain information that directly or indirectly indicates that the appearance is inconsistent with the true situation in a trustworthy fact, and the standard of "knowing" should be improved. The same analytical path is followed for other specific trustworthiness factors.
2. The determination of "not knowing because of negligence"
Similarly, the determination of "not knowing because of negligence" is also based on its opposite, which is what "not knowing because of negligence". Its core is the determination of negligence and its relationship with "ignorance". Traditionally, negligence is divided into serious negligence and minor negligence, [77], but the criteria for distinguishing between the two are vague. The former adopts the standard of ordinary people, while the latter adopts the standard of ordinary rational people. [79] However, these two standards actually lack operability, and there are many controversies between rational people and ordinary people. [80]
Its essence is that a serious negligence is that an ordinary person has realized a certain risk, but has not attracted the necessary attention. It emphasizes that the perpetrator should have a certain cognition, but he has not paid attention to this cognition and still acted. Therefore, a major negligence is a cognitive negligence, that is, aware of the risk of a fact occurring or exists. [81] The light negligence does not have a clear understanding of the risk. It is necessary to investigate and verify it before it can recognize the risk and give up the behavior. Specifically, the determination of "not knowing because of negligence" is that the third party has clearly known the risk of inconsistent appearance and the real situation, that is, the behavior is still done when there is a high degree of suspicion; the third party has only vague understanding of the risk of inconsistent appearance and the real situation, that is, the third party has only a vague understanding of the risk of inconsistent appearance and the real situation, that is, when there is a mild doubt, it has failed to fulfill its obligation to verify and investigate. As for how to judge the cognitive status of a third party's risk of inconsistent appearance and the real situation, the general degree of trustworthiness can only provide general guidance, that is, the higher the degree of trustworthiness, the lower the probability of a third party's risk of inconsistent appearance and the real situation. However, specific judgments still need to consider the specific trustworthiness factors of the trustworthy facts in individual cases to guide specific determination. [82] Based on this, the specific identification elements of "unknown due to negligence" can be distinguished into the following types:
(1) The trading field where trustworthy facts are located
Trading field includes trading venues, trading timing, method, price, and additional information of third parties for trustworthy facts.
First, the trading venues where trustworthy facts are located are usually divided into open markets and non-open markets.In cases such as auctions in the open market, in addition to being open, they are also subject to qualifications, special transaction procedures, etc., which enhances the trustworthiness of trustworthy facts, so that the third party does not need to pay too much money to verify and investigate. The third party's ability to recognize risks that are inconsistent with the appearance and the real situation will decrease, which will lead to an increase in the criteria for judgment of negligence.
Second, the trading timing, method, price, etc. will also affect the trustworthiness of trustworthy facts. At this time, it is necessary to make judgments based on trading habits. If the trading method does not meet trading habits or the price is significantly lower than the market price, the third party's cognition of risks of inconsistent appearances and real situations should be improved, so that they can fulfill their obligations to verify and investigate. Here, the criteria for distinguishing general negligence from gross negligence is the cognitive state of risks arising from non-compliance with trading habits or unreasonable prices and the degree of doubt arising from this. Not meeting trading habits or unreasonable prices will make the third party realize the risk of appearance and reality. They should have a high degree of suspicion and investigate and verify, otherwise they will be unaware of it due to gross negligence. At this time, trading habits should be distinguished from general habits and business habits, because businessmen have stronger risk cognition than non-commerce players, and business habits with higher requirements should be followed. [83]
3, the additional information obtained by the third party on trustworthy facts will also affect the third party's ability to perceive the risk of inconsistent appearances and the real situation. If a third party has had a series of transactions with the transferor or is very familiar with it during the good faith acquisition, it should be even more aware of whether the transferor has the right to dispose of it. [84] Also, in the equity transfer, the internal shareholders of a limited liability company should know the situation of the equity transfer, so if they trust it on the grounds that the commercial registration book has not been changed, it constitutes a serious negligence.
(2) The object that is trustworthy is targeted by
The object that is trustworthy is targeted will also affect its trustworthiness, resulting in changes in the obligation of third parties to pay attention. When the transaction object targeted by trusted facts is money or bearer securities, based on the needs of transaction efficiency, the trustworthiness of possessing money, such as having the right to dispose of money, increases, resulting in a third party's ability to recognize the risk of inconsistent appearance and the real situation, and thus the third party's obligation to pay attention should be reduced. When trustworthy facts target representative authority, general transaction authority and special transaction authority should also be distinguished. In accordance with Article 10 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Contract Law of the People's Republic of China (I)" (Fashi [1999] No. 19), under limited or special camps, the transaction authority cannot be based solely on the business scope recorded in the commercial registration book, but also requires corresponding licensing certificates. When there is no license proof, the third party should have a sense of the risk of inconsistent appearance and the real situation and must fulfill the corresponding obligation of attention, otherwise it will constitute a serious negligence.
(3) The expiration time of trustworthy facts
In the information transmission, people will make judgments based on the status so far. [85] Therefore, if the expiration time of trustworthy facts is long, it may cause the impression that "the existing fact state is consistent with the real state." Thus, a long-standing trustworthy fact has a higher degree of trust, because the state so far increases the probability that the appearance state is synchronized with the real state. For example, Article 16, Paragraph 3 of the German Limited Liability Company Law stipulates that if the equity registration error exceeds a certain period (3 years), the attribution of the responsible person will decrease. At this time, the possibility of the third party's perception of the risk of inconsistent appearance and the real situation will also decrease accordingly. Unless there are new risk awareness factors, the third party will not constitute a serious negligence and will not be aware of it.
(4) Mixed enhancement of trustworthy facts
In practice, the cognitive basis of the third party may not be a single trustworthy fact, and potential responsible persons often enhance their trustworthiness through the mixing of trustworthy facts.[86] This aspect may be to increase the trustworthiness of low-level trustworthiness through high-level trustworthiness facts, such as enhancing the trustworthiness of your own written words through commercial registration. At this time, since it has crossed the level, the recognition standards for the goodwill of a third party should be lowered according to the high-level trustworthy facts. On the other hand, it may be enhanced by mutual confirmation of trustworthy facts at the same level. At this time, the normative standards of good faith remain unchanged, but in terms of specific identification, the third party's ability to recognize risks of inconsistent appearance and the real situation has decreased, and the criteria for identifying faults should be raised.
(II) Procedure method for good faith recognition
The specific recognition of good faith requires the judgment of entity standards through certain procedures. The differences in good faith recognition under the general degree of trust and specific factors affecting trustworthiness also need to be reflected through the selection of procedures. The selection of procedural methods of different levels of difficulty shows the refinement of good faith in procedural law operations, and also connects the entities and procedural rules of good faith.
Judging from the general rules for good faith recognition among the specific systems of private law, both Chinese law and comparative law adopt a presumptive approach. On the one hand, it is because probatio diabolica to prove one's goodwill from the positive side; [87] On the other hand, goodwill in substantive law is generally stipulated through its opposite side, which actually points out the direction for the procedural law to prove that the person who is not goodwill from the negative side is required to prove that the third party is not goodwill from the negative side. However, there are still questions about how this presumption is developed in procedural law: first, whether the presumption of good faith leads to the inversion of the burden of proof; second, whether the determination of good faith at all levels is subject to direct presumption.
1. The basic principle of presumption of good faith
There is always a debate in comparative law and in our country whether the presumption of good faith leads to the inversion of the burden of proof. [88] From the specific process of presumption of good faith, first, the presumption of good faith is not a direct provision of the law, and there is no provision in the law on how to allocate the burden of proof in good faith (or non-good faith), which is different from the presumption of fault in Article 6 of the Tort Liability Law (Article 1165 of the Civil Code) that leads to the inversion of the burden of proof. The inversion of the burden of proof requires clear provisions by law, and the presumption of good faith is a rule formed in the litigation process. Second, the function of the presumption of good faith is to reduce the difficulty of proof in procedural. This point can be referred to the reduction mechanism of the difficulty of proof in Article 823, paragraph 2 of its Civil Code in German law. This mechanism generally takes the use of the rule of surface evidence (Anscheinsbeweise) as a general saying, and [89] does not need to be inverted in the burden of proof. Third, the application of the rules of surface evidence actually weakens the obligation of those who claim to be good-intentioned to present evidence, but there are different situations for those who claim to be good-intentioned to present evidence. In general presumption, the other party first proposes evidence of non-good intention, and the claim of goodwill itself is regarded as superficial evidence; in a conditional presumption, in addition to claiming goodwill, the one party must first propose preliminary superficial evidence to complete the obligation to put forward evidence, and then enter the presumption and allow the other party to submit a counter-proof to refute the presumption. There are differences in the degree of trustworthiness in terms of trustworthiness, which also changes the recognition of goodwill. This change not only leads to changes in the criteria for entity recognition, but also involves the adjustment of the overall difficulty of proof in procedural methods, that is, when using the rules of surface evidence to presumption of goodwill, the requirements for the strength of surface evidence are different, and thus distinguished into general presumption of goodwill and conditional presumption.
2. General presumption rules of good faith
Generally, the requirements for superficial evidence are low, and the statement that makes the claim itself can also constitute an evidence, which is a general presumption. But such claims should at least include the specific facts and processes of good faith. For example, in good faith acquisition, the person who acquires good faith usually has memory of where to obtain something and under what circumstances. If the defendant refuses to make such statements at the request of the plaintiff, he cannot presumably be in good faith.[90]
In the general presumption of goodwill, after the person who advocates goodwill makes a goodwill claim, the opponent can refute and provide evidence on this, that is, by proof that the third party is aware of it or is ignorant of it because of negligence, and proves that it is not goodwill. At this time, non-good faith proof includes proof of knowing and proof of negligence. However, it should be noted that only knowing proofs are possible, if a third party confesses clearly in a record or trial, or if the third party carries the authenticity of real estate registration with him or her transaction, it can be determined that it is clearly known. On the contrary, for the lack of knowledge because the fault itself is a judgment based on objective facts, it is difficult to say that there is a possibility of directly proving that the fault is unknown.
(1) The presumption of "not knowing"
Since "not knowing" is an inner fact, based on experience, it is extremely difficult to prove in the litigation process. Generally, it is assumed that a third party is "not knowing", but opponents are allowed to refute by proving that the third party is "knowing". Information in trustworthy facts that directly or indirectly indicate that the appearance is inconsistent with the true situation, as well as information that directly proves that the appearance is inconsistent with the true situation, can all become the basis for judging whether the third party is aware of it, such as objection registration in the real estate registration book, judgment documents that exist in effect, etc. In addition, factors that affect the specific trustworthiness of trustworthy facts will also affect the difficulty of a third party to obtain relevant basic facts. Therefore, the above analysis of the information status of trustworthy facts can also be used as a further consideration when judging whether the third party is aware of it.
(2) The presumption of "not knowing because of negligence"
"not knowing because of negligence" has the same proof dilemma, so it can only be presumed that opponents can refute by proving that they do not know because of negligence. The core of this is to prove the fault, but the fault has been objectively determined, that is, to judge by whether the duty of care is fulfilled. It should be noted that the determination of not knowing because of gross negligence is not the same as the determination of not knowing because of general negligence. The former needs to prove that there is a risk of inconsistent with the appearance and the real situation and fail to fulfill the obligation of attention such as investigation and verification, while the latter needs to prove that the obligation of attention such as investigation and verification is not fulfilled. Therefore, the core of the presumption that "not knowing it because of negligence" and its rebuttal is to prove whether there is a duty of attention, whether there is a risk of inconsistent appearance and the real situation, and whether the duty of attention is fulfilled. Among them, whether there is a risk of inconsistent appearance and real situations needs to be combined with the aforementioned "unknown because of negligence". In addition to the general degree of trustworthiness, factors that affect specific trustworthiness should be focused on and differentiated situations for identification.
3. The rules of good faith conditional presumption
Although the general presumption of good faith is a principle, as the degree of trustworthiness of trustworthiness decreases, especially when there are differences in the degree of trustworthiness at the same level due to the existence of factors affecting specific trustworthiness, a conditional presumption is required. For typical matters such as special transaction authority, acts that cannot be carried out separately by the representative (such as matters that the partners decide unanimously), as well as matters that restrict business, franchise, or prohibit business, a third party must first prove that there are shareholders' meeting resolutions, internal unanimous consent forms, or franchise, license and other documents. There have been judgments in practice to realize this point, requiring a third party not to trust the other party’s commitments, guarantees and relevant official seals to sign a contract, but also to review the relevant shareholders’ meeting resolutions and unanimous agreement forms of partners. [91] However, this kind of review is only formal review, because the third party lacks the technical ability to conduct substantive review, and the authenticity of resolutions or licenses is not within the scope of the review unless it is obvious forgery. [92] Once a third party provides evidence to prove that the resolution or concession or permit exists, the determination of good faith enters the general presumption mode, that is, the claim that non-good faith must provide evidence to prove that the third party has aware of the risk of inconsistent appearance and the real situation and has not fulfilled its obligation of attention such as reasonable investigation and verification based on the above general presumption rules.[93]
distinguishes between the situations and presumptions, on the one hand, it is determined based on the general trustworthiness of trustworthy facts. The trustworthy facts such as words or simple written materials are the least reliable. The trust basis of a third party is too weak, and it is unreasonable to claim that one has good intentions that one enters the presumption. At this time, the third party should at least first propose evidence such as the appearance of these trustworthy facts that are substantial related to the true situation before entering the presumption mode. If a third party cannot provide relevant evidence, it can only be determined that he is not in good faith. This saves litigation resources more than letting those who claim to be non-benevolent, and avoids unnecessary disputes due to the proof of inner factual issues. On the other hand, there are differences in internal recognition due to different factors that affect their specific trustworthiness. If the above-mentioned trustworthy facts that are both commercial registrations are trustworthy, a general presumption is enough for general authority matters; if special authority matters are concerned, it should be proved that special authority is enjoyed first, so conditional presumption is required. Other factors that affect a particular trustworthiness can also lead to conditionalization of presumptions, but not all factors that affect a particular trustworthiness can lead to conditional presumptions. Conditional presumption will only result when factors that affect specific trustworthiness increase the basis of trustworthiness beyond the facts. For example, trustworthy facts add a trust basis for special permissions, and trustworthy facts are enhanced when the trustworthy facts are mixed and enhanced. [94] other influencing factors such as in the non-public market, the trading timing, method, price, etc. are unreasonable or do not conform to trading habits, trustworthy facts are closer to third parties, trustworthy facts last longer, etc. Generally, no new trust basis is added, which only changes the degree of trustworthiness of the original trustworthy facts. The difference can be reflected through the different recognition standards of "not being aware" and "not knowing because of negligence".
Conclusion
There are many goodwill in private law regarding trust protection. Through systematic research on it, the following conclusions can be drawn:
1. Goodwill is the evaluation result of the cognitive status of the subject of private law, and the object of cognition is a trustworthy fact. When the subject of private law is not aware of the inconsistency between the appearance of trustworthy facts and the real situation, this cognitive state can be legally evaluated as good faith. The determination of good faith is not a factual judgment, but a value judgment, where negligence is the requirement for balance of interests in value judgment.
2. Given the relationship between good faith and trustworthy facts, the degree of trustworthy facts can be used as the "system axis" for good faith recognition in empirical and theoretically. Among them, the general degree of trust makes good faith distinguished into a type level with negligence as a coordination factor, thus forming a normative standard for good faith identification in substantive law.
3. Generally, the degree of trustworthiness plus the factors affecting specific trustworthiness will affect the judgment of the entity standard and the selection of procedural methods in the specific determination of good faith. In terms of the judgment of entity standards for good faith determination, "not knowing" uses the type of information (generally the degree of trustworthiness affects the difficulty of information acquisition) and information status (specific trustworthiness influencing the information status differently) as the judgment elements; "not knowing because of negligence" uses the various influencing factors of specific trustworthiness as the judgment elements. In terms of the specific development of procedural methods, the presumption of goodwill for different trustworthy facts is different due to the different levels of general trustworthy facts, and the different factors affecting specific trustworthy facts are also different, thus forming a general presumption and conditional presumption that different requirements for the strength of surface evidence.
The rule system of good faith recognition formed by this first forms a general type level of good faith recognition for referees to "position" to clarify the normative standards for good faith recognition, and then conduct specific identification based on the judgment elements and procedure development methods of good faith recognition.Secondly, the rule system of good faith recognition plays a role in connecting substantive law and procedural law, providing clearer guidance for good faith recognition, and enhancing the operability of good faith recognition. Finally, the system of rules for good faith recognition reflects systematic thinking and helps to clarify the internal system of private law in theory. Systematic thinking also helps to make arguments and proofs when specific norms are interpreted and apply, providing support for judicial judgments.
Comments:
*The writing of this article is especially thanks to Teacher Zhang Gu , Teacher Zhou Jianghong, Teacher Zhang Jiayong, Teacher Zhang Jicheng, Teacher Chen Xinyong, Teacher Han Jiayong , as well as the frequent discussion partners: Lu Qing, Zhang Cheng, Zhou Chun and Lin Huanmin. I also want to thank Feng Jue editor and external review experts. Teacher Feng is a role model for his seriousness and meticulousness in academic research.
*This article is funded by the Youth Fund Project of the Ministry of Education’s Humanities and Social Sciences Research Youth Fund Project “Research on the Application of Commercial Customary Judicial” (20YJC820040), and the National Rule of Law and Law Theory Research Project of the Ministry of Justice “Research on the Protection of Commercial Credit Rights under the Context of Optimizing the Business Environment” (19SFB3030).
[1] In contrast to good intentions, there are malicious expressions, such as "malicious consultation" in Article 42 of the Contract Law (Article 500 of the Civil Code), and "malicious collusion" in Article 52 of the Contract Law (Article 154 of the Civil Code). These provisions on malicious intentions regulate objective behavior based on malicious intentions and have been considered in the requirements of integrity. This article focuses on the subjective "unknown" goodwill of the trustees. For the distinction between integrity and goodwill, see Dong Xueli : "On Goodwill and Malicious Intention in Changes in Property Rights", " Chinese Law " 2004 No. 2, page 65; Zhen Zengshui: "Goodwill in Civil Law", Chinese University of Political Science and Law 2009 Ph.D. Thesis, page 39 below. For the historical development of goodwill, see Xu Guodong : "The issue of the opposition between objective integrity and subjective integrity - centered on Roman law", "Chinese Social Sciences" No. 6, 2001, page 97 below.
[2] For a good faith analysis in good faith acquisition, see Ye Jinqiang : "On the good faith in the composition of good faith acquisition and no major negligence", "Legal Science" No. 5, 2004, page 31 below.
[3] See Long Jun: "Registration Confrontationism in China's Property Law", "Legal Research" No. 5, 2012, page 136 below.
[4] This article is for legal person registration in the sense of the meaning, but registration shall not counter the premise of the application of the rules. There is a distinction between internal and external legal relations. The commercial entity complies with the premise of distinction between internal and external legal relations due to its external business characteristics. Therefore, in terms of interpretation, on the one hand, the type of legal person applicable to this article must be limited, and on the other hand, it must be expanded to commercial organizations that are not legal persons. See Shi Yifeng: "On the Third Person in Commercial Registration", "Legal and Business Research" No. 6, 2018, page 57.
[5] See Yang Fang: Commentary on Article 49 of the "Contract Law" (Expression Agency Rules)", " Legalist " 2017 No. 6, page 170.
[6] See Shi Yifeng: "Types and Applications of Representative Responsibility for Commercial Expressions", "Legal Science" 2017 No. 6, page 144.
[7] See Zeng Shixiong: "The present and future of the general principles of civil law", China University of Political Science and Law Press 2001 edition, page 228.
[8] See Yin Tian: "Property Law", Peking University Press, 2017 edition, page 204; Wu Guozhe : "Attributes and Counter-Recommendation Technology of Good Intention", "Legal Research" 2007 No. 6, page 18.
[9] See Li Guangxia: "New Theory of Civil Law Property Rights", Shanghai Book and Newspaper, 1955 edition, page 83; quotation [2], Ye Jinqiang's article, page 82.
[10] See Shi Shangkuan: "On Property Rights Law", China University of Political Science and Law Press, 2000 edition, page 564.
[11] Judgment No. 2819 of Taiwan in 1982.
[12] See previous quote [8], Yin Tianshu, page 204.Article 15 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Property Law of the People's Republic of China (I)" (Fashi [2016] No. 5, hereinafter referred to as "Interpretation of the Property Law I") also stipulates that the goodwill obtained by good faith in movable property is "not for knowing and not for gross negligence."
[13] There are also differences in my country's theory and practice on what standards should be adopted for the recognition of good faith in real estate. It is generally believed that it is "not for knowing", see Wang Zejian : "Civil Law Property Rights", Peking University Press, 2009 edition, page 88; Wang Liming: "Study on the Constituent Elements of Good-faith Acquisition of Real Estate", " Politics and Law " 2008 No. 10, page 6; Cheng Xiao: "On the Distinguishing between Credibility of Real Estate Registration Books and Good-faith Acquisition of Movable Property", "Chinese and Foreign Laws" 2010 No. 4, page 531. The objection believes that the goodwill obtained by real estate and movable property should be unified as "uninformed and without gross negligence." See Cui Jianyuan : "Property Law", Renmin University Press, 2009 edition, page 93.
[14] See Shi Haoming: "On Appearance Agent", "Legal Science" No. 1, 1995, page 70; Cao Xinming : "On Appearance Agent", "Legal Business Research" No. 6, 1998, page 65; Jiang Fan and Sun Peng edited: "Transaction Security and China Civil and Commercial Law", China University of Political Science and Law Press, 1997 edition, page 140.
[15] There are three views on the standard of goodwill for counterparty in unauthorized agents. See Xia Haohan: "The Standard of Judgment of Good Intentions of Relative Persons in Unauthorized Agents", "Law" No. 6, 2018, Page 104 below.
[16] Vgl.Wolf/Wellenhofer, Sachenrecht,30.Aufl.2015,§8 Rn.16; Baur/Stürner, Sachenrecht,18.Aufl.2009,§52Rn.25, S.673; Hübner, Handelsrecht,5. Aufl.2004, S.59; Canaris, Handelsrecht,24. Aufl.2006, S.66; Liang Huixing , Chen Huabin : "Property Law", Law Publishing House, 2016 edition, page 194, below; Liu Jia'an : "Property Law", China University of Political Science and Law Press, 2015 edition, page 107.
[17] See Xu Diyu : "Basic interpretation of the allocation of burden of civil proof - Taking Article 106 of the Property Law as the analysis text", "Legal Research" No. 2, 2016, page 98, page 98; Wu Zeyong: "On the Proof of the Requirements for Good Intention in the System of Good Integrity", "Chinese Law" No. 4, 2012, page 149, page 1.
[18] Vgl.Larenz, Allgemeiner Teil des deutschen bürgerlichen Rechts,7. Aufl.1989, S.43. Of course, good faith is only one of the components of trust protection. The judgment of trustworthy people requires a comprehensive understanding of the trustworthy goodwill, the trustee's knowledge of trustworthy facts, the trustee's trust handling behavior, and the causal relationship between trust handling behavior and trust. Vgl. Canaris, Die Vertrauenshaftung im Deutschen Privatrecht,1971, S.503ff.
[19] As Zeng Shixiong said: good intentions and malicious intentions exist because they are widely attached to various systems, and they have their own commonalities and form their own systems, so there is a need for special discussion. See previous quote [7], Zeng Shixiong's book, page 227.
[20] See previous quote [10], Shi Shangkuan's book, page 564.
[21] See Xiao Houguo : "Research on Changes in Property Rights", Law Press, 2002 edition, page 392; Wang Yi : "On Changes in Property Rights Rights", Renmin University Press, 2001 edition, page 311.
[22] Article 932, paragraph 2 of the German Civil Code, Article 192 of the Japanese Civil Code, Article 714 of the Swiss Civil Code, etc., are generally believed to adopt negative ideas. See previous quotation [10], Shi Shangkuan's book, page 564.
[23] See previous quotes [16], Liang Huixing and others, page 194; Cui Jianyuan: "Property Law", Renmin University of China Press, 2017 edition, page 83, page 108; Xie Zaiquan: "On Property Rights in Civil Law" Volume 1, China University of Political Science and Law Press, 1999 edition, page 229. Article 15 of "Interpretation of Property Law 1" also adopts a negative concept.
[24] See Wang Liming and Wang Yi: "Research on the Good Fortitude Acquisition System of Movable Property", "Modern Law" No. 5, 1997, page 11.Xu Guodong translated "bonafides" as integrity, and distinguished between objective integrity and subjective integrity. The corresponding expression of subjective integrity in today's legal text is good intention. See Xu Guodong: "Two Questions on the Principle of Honesty and Trust", "Law Research" No. 4, 2002, page 80, below.
[25] See [France] Emil Durkheim: "On Social Division of Labor", translated by Qu Dong, Sanlian Bookstore 2000 edition, page 27.
[26] See Xue Bo editor: "Yuanzhao Anglo-American French Dictionary (Short Printing Edition)", Peking University Press, 2013 edition, page 163.
[27] See Zhang Guojian: "On Commercial Law", Sanmin Book Company, 1981 edition, page 45; Wang Baoshu, edited by: "China Commercial Law", People's Court Press, 2001 edition, page 25 below.
[28] See editor-in-chief of Tian Tucheng: "Legal Guarantees of Transaction Security", Henan People's Publishing House, 1998 edition, page 37.
[29] See Li Jingpyo: "Research on the Appearance Responsibility System in South Korea's Commercial Law", edited by Wang Baoshu: "Commercial Law Theory" Volume 3, Law Press, 1999 edition, page 446.
[30] See Liang Huixing: "General Theory of Civil Law", Law Press, 2017 edition, page 173.
[31] affects the counterparty's judgment on whether the final responsible person bears limited liability and the judgment of the place of performance of the contract.
[32] Cfr.Pietro Bonfante, Essenza della bona fides e suo rapporto colla teorica dierrore, Bulletino dell’ isituto di diritto romano, Vol. VI (1894), p.91. Quoted from Xu Guodong: "A Comparative Law on the Issue of Dividing and Combining and Rename Change of Subjective Integrity and Objective Integrity—And on Where China's Integrity Legislation Goes", Social Sciences, 2013, Issue 1, page 113.
[33] See previous quote [24], Xu Guodongwen, page 80; previous quote [1], Xu Guodongwen, page 98.
[34] See previous quote [1], Xu Guodongwen, page 98.
[35] Vgl. Carl Georg Bruns, Das Wesen der bonafides bei der Ersitzung: ein praktisches Gutachten nebst einem theoretischen Nachtrage,1872, S.79f.
[36] See Wang Liming: "The composition of the system of good faith acquisition - Taking Article 111 of the draft property law of our country as the object of analysis", "Chinese Law" 2006 No. 4, page 82.
[37] See previous quote [2], Ye Jinqiang's article, page 84.
[38] See previous quote [8], Wu Guozhewen, page 23.
[39] See Wang Zejian: "Infringement", Peking University Press, 2009 edition, page 243. Negligence is also considered a subjective psychology, and in judgment, it also turns to objective comprehensive judgment based on "obligation of attention", so it also involves value judgment and interest measurement. See Chen Congfu: "Principle of Attribution to Infringement and Compensation for Damage", Peking University Press, 2005 edition, page 58.
[40] See previous quote [10], Shi Shangkuan's book, page 564.
[41] Vgl.Schäfer/Ott, Lehrbuch der ökonomischen Analyse des Zivilrechts,2. Aufl.1995,Berlin, S.472ff.
[42] See previous quote [8], Wu Guozhewen, page 21.
[43] See previous quote [13], Wang Zejian's book, page 486.
[44] This is a general German theory, see the previous quotation [16], Baur/Stürner, page 300, page 673; the previous quotation [16], Wolf/Wellenhofer, section 8 edge code 17, section 19 edge code 21.
[45] See previous quote [4], Shi Yifeng's article, page 57.
[46] See Yang Daixiong : "Special Constituent Elements of Expression Agent", "Law" No. 2, 2013, page 65 below.
[47] See previous quote [16], Canaris book, page 92.
[48] See previous quote [16], Baur/Stürner, page 300.
[49] Vgl.Wiegand, Staudingers Komentar zum Bürgerlichen Gesetzbuch, 2011, §932, Rn.37.
[50] If real estate registration is generally trustworthy than words other than registration, it cannot make its trustworthiness span the level and exceed the real estate registration because words other than registration are in the open market and have a long existence time.
[51] Article 873 of the German Civil Code stipulates the effective theory of land acquisition due to consent and registration, Article 891 stipulates the presumptive validity of the land registration book, and Article 892 stipulates the credibility of the land registration book (real estate can be obtained in good faith). Articles 9 of my country's Property Rights Law (Article 209 of the Civil Code) and 14 of the Civil Code (Article 214 of the Civil Code) stipulate the effectiveness of registration, Articles 16 and 17 of the Civil Code (Article 216 and 217 of the Civil Code) stipulate the presumptive validity of the real estate registration book, and Article 106 (Article 311 of the Civil Code) uniformly stipulate the system of good faith acquisition of real estate and movable property.
[52] See the previous quote [49], Wiegand Commentary Book, page 408 below.
[53] See previous quote [16], Baur/Stürner, page 169; previous quote [16], Wolf/Wellenhofer, section 19, side code below 1.
[54] See Xie Zaiquan: "On Property Rights in Civil Law" Volume 2, China University of Political Science and Law Press, 1999 edition, page 939.
[55] Article 23 of my country's Property Law (Article 224 of the Civil Code) stipulates the theory of delivery and effectiveness. Although the presumptive effect of possession is not explicitly stipulated, it is recognized by academic principles; Article 106 of the Property Law (Article 311 of the Civil Code) uniformly stipulates the system of good faith acquisition of real estate and movable property. For the presumptive effect of possession, see Zhuang Jiayuan and Li Hao: "On the presumptive effect of possession of movable property - Taking Article 1006 of the German Civil Code as a reference", "Tsinghua Law" No. 3, 2011, page 123 below.
[56] See Wen Shiyang: "The Essentials of Property Law", Law Press, 2007 edition, page 132.
[57] See previous quote [4], Shi Yifeng's article, page 54.
[58] Article 4, paragraph 2 of the "Guangdong Provincial Commercial Registration Regulations" and the practical judgment confirm this point. For practical judgments, please refer to the administrative judgment No. 130 of the Ruian Municipal People's Court of Zhejiang Province (2014); the administrative judgment No. 17 of the Qingzhong Zhongzhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong Zhong 3 （2014 ） ．
[59] Articles 160 and 161 of the Criminal Law respectively stipulate the crime of fraudulent issuance of stocks and bonds and the crime of illegal disclosure and non-disclosure of important information.
[60] See the judgment No. 0498 of Jinshangchu, People's Court of Jinhu County, Jiangsu Province.
[61] In practice, there are still many cases of improper registration, such as housing reform, inheritance, etc., or not registration is not carried out to avoid taxes and fees. See Cui Jianyuan: "Property Rights: Norms and Theory - Centered on the Interpretation of China's Property Law", Tsinghua University Press, 2011 edition, page 203.
[62] Article 68 of the German Civil Code also adopts the statement of "not knowingly" about the goodwill of the club registration book, which is the same as commercial registration; the situations of commercial registration and community registration are also similar, so the following analysis also applies to community registration.
[63] See previous quote [16], Canaris book, page 55.
[64] See Shi Yifeng: "Recognition of transaction causal relationship in violating information disclosure obligations", "Politics and Law" 2015 No. 9, page 85.
[65] See Article 13 of the Supreme People's Court's "Guiding Opinions on Several Issues Concerning the Trial of Civil and Commercial Contract Disputes Cases under the Current Situation" (Fafa [2009] No. 40); Civil Ruling of the Supreme People's Court (2014) Minshen No. 2013; Civil Ruling of the Supreme People's Court (2013) Minshen No. 743; Civil Ruling of the Supreme People's Court (2012) Minshen No. 93.
[66] The commercial statements here represent that they may occur based on both commercial registration and facts other than registration. The former still adopts the standard of "not known for gross negligence", while the latter adopts the standard of "not known for not being wrong". For specific analysis, please refer to the previous quotation [6], Shi Yifeng's article, page 137 below. Therefore, it is important to note that the trustworthiness that goodwill in specific norms may be targeted has diversity. Systems such as good faith possession and good faith unjust enrichment are also diverse due to the complex and diverse legal relationship between possession and profit, and the trustworthy facts they target are also diverse. It is necessary to analyze whether it is good faith for facts other than real estate registration, possession, or commercial registration or registration based on the specific circumstances.
[67] See Shanghai No. 1 Intermediate People's Court (2017) Shanghai 01 Civil Final No. 14045 Civil Judgment .
[68] See the Civil Judgment No. 628 of Suizhou Intermediate People's Court of Hubei Province (2017).
[69] Article 539 of the Civil Code has changed the "know" of the debtor's counterparty in Article 74 of the Contract Law to "know or should know", which is consistent with the good faith requirement obtained in this article.
[70] See previous quote [13], Wang Limingwen, page 7.
[71] See the Administrative Ruling No. Jilin Intermediate People's Court (2019) Jilin City Intermediate People's Court (2017) Jilin Province Yanji City People's Court (2017) Jilin Province 99.
[72] See the Civil Judgment No. 1222 of Shanghai Second Intermediate People's Court (2014) Shanghai No. 20 Civil Judgment No. 4862 of Guangdong Province Zhongshan Intermediate People's Court (2017) Guangdong 20 Civil Judgment No. 4862 of Shanxi Higher People's Court (2017) Jinmin Ai No. 72 of Shanxi Higher People's Court (2017).
[73] See Shandong Higher People's Court (2004) Civil Judgment No. 287.
[74] See Guangdong Higher People's Court (2010) Guangdong Higher People's Court Civil Second Final No. 48.
[75] See previous quote [13], Wang Zejian's book, page 503.
[76] See [France] Jacques Geisdan, Giller Gubo: "General Theory of French Civil Law", translated by Chen Peng et al., Law Press, 2004 edition, page 778.
[77] See Huang Feng: "Introduction to Rome Private Law", China University of Political Science and Law Press, 2003 edition, page 342.
[78] See Yang Lixin: "Theory of Tort Law", People's Court Press, 2004 edition, page 187.
[79] See [Italy] Petro Peng Fande: "Roman Law Textbook", translated by Huang Feng, 1992 edition of China University of Political Science and Law Press, page 78 below.
[80] See Ye Mingyi: "Construction of Major Negligence Theory", "Law Research" 2009 No. 6, page 79.
[81] Same as above, page 89.
[82] Some scholars pointed out that the judgment of major negligence needs to be considered based on the trading venue, the relevant disciplinary person, the subject matter, market information and other relevant transaction background information. See previous quote [2], Ye Jinqiang's article, page 84. For comparison, see Schwab/Prütting, Sachenrecht, 29 Aufl.2000, S.181.
[83] See the judgment No. 0498 of Jinshangchu, People's Court of Jinhu County, Jiangsu Province.
[84] See previous quote [36], Wang Limingwen, page 83.
[85] See the previous quote [16], Canaris book, page 50 and below.
[86] This is also related to the attribution of potential responsible persons.
[87] Article 15, paragraph 2 of the German Commercial Code requires a third party to prove himself that he neither knows nor should he know such facts, which is considered impossible by scholars. See 16, Canaris, p. 61.
[88] The burden of proof is inverted [16], Canaris Book, pp. 93 below; Roth, in: Koller/Kindler/Roth/Morck, Handelsgesetzbuch (Kommentar), 8. Aufl.2015, §15 Rn.57. Those who take the presumption of facts include Röhricht/Grafvon Westphalen/Haas (Hrsg.), Handelsgesetzbuch, 4. Aufl.2014, Anhang zu§5 Rn.34. For relevant debates in our country, please refer to the previous quotation [17], Xu Diyuwen, page 98, below; the previous quotation [17], Wu Zeyongwen, page 149, below.
[89] Vgl.Wagner, Münchener Komentar zum BGB, §823,7. Aufl.2017,Rn.87ff.; Hager,Staudingers Komentar zum BGB, §823,2017,Rn. G34.
[90] See previous quote [10], Shi Shangkuanshu, page 565.
[91] See the Civil Judgment No. 19 of the Supreme People's Court (2013) Civil Judgment No. 00560 of the Jiangsu Higher People's Court.
[92] See Civil Judgment No. 156 of the Supreme People's Court (2012).
[93] See the Civil Judgment No. 184 of Guangdong Higher People's Court (2007).
[94] If a third party does not provide evidence first to prove the existence of other trustworthy facts, it will still be determined according to the standard of a single trustworthy fact. At this time, those who claim that non-kindness are more likely to refute it. Therefore, if you want to claim that you are trusting in mixed trustworthy facts to reduce your obligation to pay attention, you must first provide evidence to prove the existence of other trustworthy facts.
