Novels in the Civil Code: the principle of good faith
At the beginning of the year, amendments were made to Russian civil law * (1). One of the innovations is the consolidation of the principle of good faith as one of the main principles of civil law and the development of this general norm in other provisions of the Civil Code.
At present, civil law often uses the concept of “good faith” when evaluating the behavior of participants in a civil turnover. However, the Civil Code does not define this concept. It is used in the provisions on processing * (2), on acquisitive prescription * (3), on settlements when returning property from illegal possession * (4), on reimbursement of the cost of improvements made by a tenant to a leased enterprise * (5), etc. Such legal norms are considered as evaluative and are used primarily to establish a certain framework of judicial discretion.
The concept of “good faith” is most fully disclosed when defining the term “fair owner”. In accordance with the Civil Code, such an entity is understood to mean a person who did not know and could not know that the person from whom he had acquired property for compensation did not have the right to alienate such property * (6).
Differentiating the requirements of good faith from the general principles of civil law, the Civil Code nevertheless indicates that such requirements can be guided along with the general principles and the meaning of civil law in cases where it is impossible to use the analogy of the law * (7).
Simultaneously with this Civil Code, the presumption of good faith of participants in civil relations, but under certain conditions, is established. If the law makes the protection of civil rights dependent on whether these rights were exercised in good faith, then the integrity of the person is assumed * (8). Consequently, the participant in civil relations is not obliged to prove the good faith of his actions, the burden of proving the opposite lies with his counterparty.
The need for amendments to the Civil Code aimed at consolidating the principle of good faith was due to a number of objective reasons.
Firstly, references to good faith as a subjective criterion for assessing the behavior of civil law subjects and an objective basis for the regulation of civil relations existing in the Civil Code are insufficient for effective legal regulation * (9).
When considering the issue of good faith of participants in civil legal relations, courts refer to the main principles of civil law, among which the principle of good faith is not mentioned, or to fundamental private law principles * (10).
The lack of a clear consolidation of the principle of good faith in Russian civil law, in contrast to documents of private international law, * (11) may affect the adoption of fair decisions when considering disputes involving Russian persons in international courts.
Secondly, the principle of good faith corresponds to the ideas of the modern legal doctrine of civil law. It is provided for in the legislation of the vast majority of states with developed law and order.
The principle under consideration is quite clearly defined in the legislation of individual CIS member states * (12).
World experience shows that the effective development of the market is impossible without strengthening the principles of autonomy of will and freedom of agreement of the participants in the turnover. At the same time, unlimited freedom in achieving economic interests entails the risk of destabilization of turnover.
The rules of good faith are a natural counterweight to the rules that affirm freedom of contract and autonomy of the will of the parties. Therefore, the normative consolidation of the principle of good faith will allow not only to establish the most important guidelines for the behavior of legal entities, but also to more widely apply civil protection measures in cases of dishonest actions of participants in a turnover * (13).
Law N 302-ФЗ, affirming the principle of good faith as one of the main principles of civil law, indicates the obligation of participants in civil relations to act in good faith when establishing, exercising and protecting civil rights and in the performance of civil duties * (14).
It is necessary to pay attention to the fact that the courts, resolving disputes, proceed from these requirements of good faith, substantiating them with references to Articles 9 and 10 of the Civil Code * (15).
In addition to the above norm, the law * (16) establishes in article 1 of the Civil Code a prohibition for any person to take advantage of their illegal or dishonest behavior.
This provision is also reflected in judicial practice * (17).
At the same time, in judicial acts, unfair behavior is usually considered illegal. And this entails a ban on the use of benefits from such behavior * (18).
For the further development of the principle of good faith, a special norm has been introduced in article 10 of the Civil Code on the prevention of the knowingly unfair exercise of civil rights. The introduction of this amendment is aimed at concretizing the concept of “other forms of abuse of law”, which may be deprived of legal protection. The presence in civil law of such an abstract formulation entailed the emergence in practice of difficult situations. Of course, the concept of “knowingly unscrupulous” is also relatively vague, but it is more common for judicial practice * (19). The prohibition of dishonest actions in their extreme form of “knowledge” (ie intent) ensures the correspondence of general and special legal norms on good faith * (20).
Section 10 of the Civil Code includes a provision according to which, in the event of a knowingly unfair exercise of civil rights by a person, the court, taking into account the nature and consequences of the abuse of the right, can not only refuse such a person to protect his or her right in whole or in part, but also take other measures provided for by law. If the knowingly unfair exercise of civil rights entailed a violation of the right of another person, the latter has the right to demand compensation for losses caused to him * (21).
Essential for the consistent consolidation in the Civil Code of the principle of good faith is the introduction of the presumption of good faith of participants * (22). At the same time, one cannot ignore the question of situations when the person himself is obliged to prove the good faith of his behavior * (23). This problem is relevant for other areas of civil law.
Thus, we can conclude that the changes made to the Civil Code, of course, are fundamental and significant for the development of Russian civil law. The principle of good faith applies to the actions of participants in civil turnover in establishing rights and obligations, exercising rights and fulfilling obligations, as well as in protecting rights.
Yu. Khramtsova,
Chief Energy Lawyer
law firm "NAFKO-Consultants", Ph.D.
“Current Accounting”, N 3, March 2013
