신의칙위반의 소송상 주장방법과 쟁점

Abstract

When a plaintiff sue a claim to the district court at first instance against the dependant who violated the good faith doctrine, the plaintiff should fill the all the matters of purports and grounds in a complaint for the violation of good faith doctrine. And also the presiding judge should examine the complaint for the violation of good faith doctrine more rigorously. In contents of the judgement delivered at the district court all the matters of legal issues on the fact finding for violation of good faith doctrine should be stated item by item. So to speak, more rigorous examination about the statement of plaintiff and dependant should be done in aspect of legal requirement needed in the process of litigation ; whether the contents of specified procedural format is satisfied or not especially in view of the case of the violation of good faith doctrine. The purpose of the rigorous procedural requirement in the process of litigation for the violation of good faith doctrine is to protect against the abuse of the good faith doctrine as a general clause. The good faith doctrine is a provision of private law. And so there may be occurred a debate of the compensation for damages against other party even if she violate the good faith doctrine. Here the problem of punishment function of the good faith doctrine should be payed attention from the dimension of observance enforcement of the good faith doctrine. For example, the extent of compensation for damages should be mediated according to the type of violation. The good faith doctrine is used widely as a tool and reason of legal judgement which should go to the protection for human basic right in the private law and constitution.