CONTINUITY OF THE PRINCIPLE OF GOOD FAITH IN THE RUSSIAN LEGAL SYSTEM

ABSTRACT

The article discusses the principle of good faith and its evolution. The formation of this phenomenon has been analyzed in great detail since ancient times. The opinions of scientists on this matter are also given. It is also important to trace the connection between the principle of good faith and the institution of vindication.

Keywords: good faith, bona fide owner, vindication, possession.

Like any other legal system, Russian legal system is based on principles. In the legal doctrine, there are many opinions regarding the evolution of the principle of good faith.  The development of legal principles is closely related to continuity in law, which, in turn, allows us to identify the main elements of the principle of good faith and trace their development.

Even in Roman law, two approaches to the concept of "good faith" were distinguished.  The first of which stated that good faith is honesty and respect for the balance of interests of the parties, and the second one defined it as a person's ignorance of the circumstances that prevent him from acquiring any right.

“Russian Pravda”, the first monument of Russian written law, indirectly indicates the principle of good faith, while protecting a bona fide acquirer of a thing from accusations of theft. In particular, articles 36 and 37 of the above-mentioned document indicated that the claimant (who discovered the stolen thing) had no right to accuse the defendant (a bona fide acquirer) of theft, and the defendant was also entitled to claim money (or other valuables) from the "true thief" [3, p. 131]. However, as a general concept, conscientiousness appeared only in 1649 and was called "good will", allowing a person to challenge the conclusion of a transaction if it was conducted in a state of a claimant’s insanity or under another party’s pressure [2, p. 4].

The next act containing provisions on good faith is the tenth volume of the Code of Laws of the Russian Empire. In accordance with article 530, possession was recognized in good faith until it was proved that the owner was not reliably aware of the illegality of his possession. In the same article, the legislator imposes on the bona fide owner the obligation to keep all income and things in favor of the owner when he files a lawsuit.  In accordance with part 1 of article 613, the unscrupulous owner was obliged to compensate for losses associated with the removal of property from the estate or with the sale of items related to the land plot [6].

The last important act of the pre-revolutionary period containing the principle of good faith is the Civil Code of 1905. According to article 17, no transaction concluded within the Empire or the law of a foreign state can have legal force if it contradicts the norms of morality. As for the principle of good faith ("good morality") in binding legal relations, then, in accordance with article 64, such cases as abuse of power, trust, use of weakness of will, the need to conclude a transaction are equated to deception i.e., bad faith. It proves that the legislator tried to protect participants in civil legal relations from entering into bonded transactions.

At the turn of the XIX and XX centuries, in addition to legal interpretations of the principle of good faith, there were also jurists’ works that explain the essence of this principle, as well as the scope of its application.

D. I. Meyer points out that bona fide possession can only be such possession, which is based on the delusion of the acquirer of the thing about the identity of the seller, who was not the owner. At the same time, the scientist clarifies that in the absence of such an incident, possession will be considered unfair. T.F. Shershevich defines bona fide ownership as the owner's ignorance of the circumstances that prevent the emergence of the right of ownership, while the author notes that good faith is of practical importance only when determining the scope of the powers of the parties. According to N.B. Novitsky, the principle of good faith (good conscience) is the principle of fidelity to the contract and the spoken word, respect for the contractual agreement [5, p. 87].

Thus, it can be concluded that the pre-revolutionary legislators associated it primarily with vindication and protection of a bona fide acquirer’ rights. But with the publication of the Code of Laws of the Russian Empire and the Civil Code, the principle of good faith extended to binding legal relations. As O.V. Cherkasova notes, the principle of good faith was in its infancy in the pre-revolutionary period. The legislator attributed good faith solely to the validity of the transaction or to determining the scope of the rights of a bona fide acquirer and owner in the case of a dispute [7, p. 175].

By the decree of the Central Executive Committee of 11.11.1922, the new Civil Code of the RSFSR was put into effect, which contained provisions concerning good faith. Articles 59 and 60 of the Civil Code of the RSFSR of 1922 are devoted to the principle of good faith. Article 59 states that the owner has the right to claim property from someone else's illegal possession, as well as compensation for all income that he has extracted or should have extracted.

The definition of a bona fide owner is given in article 60, which states that the acquirer is recognized as bona fide if he did not know and should not have known that the person from whom he acquired the thing had no right to alienate it. It is indicated that the owner has the right to demand the return of his property from a bona fide acquirer only if the property was lost by the owner or stolen from him.

The Civil Code of 1964 also has provisions on the institution of vindication. But at the same time, the legislator introduces a number of new powers related to the principle of good faith. In particular, the category of good faith is applied to the necessary conditions of the transaction conclusion, the vindication of securities and funds is limited and this category has also become important in copyright, for example, a ban on the return of the author's fee to the organization in case of its bad faith or the author's obligation to return the fee in case of bad faith on his part [4].

It can be concluded that the Soviet legislator associated conscientiousness with the institution of vindication, as well as the legislator of the pre-revolutionary period. But at the same time the scope of the use of good faith was expanded. It will be necessary to note that it was during the Soviet period when the category of good faith started to be considered as a principle in the legal doctrine. Thus, S.N. Bratus wrote that conscientiousness is one of the principles of the socialist community, putting the meaning of conscientious enforcement of laws into it [1, p. 34].

The analysis of scientific legal resources showed the absence of a clear and comprehensive definition of good faith but it allowed us to identify a number of basic legal structures that characterize this principle, among which we can distinguish the following:

1. Vindication and a bona fide acquirer’s rights to sue a non-owner for damages;

2. The dependence of the validity of the transaction on the integrity of the counterparties;

3. The obligation of a bona fide acquirer to compensate for losses caused to the owner;

4. Presumption of good faith;

5. An acquirer’s good faith as ignorance and inability to obtain information about the illegality of his possession.

The continuity of all these provisions, which have been preserved throughout the historical development of the domestic legal system, is reflected in the modern civil legislation.

References:

1. Bratus S. N. The subject and system of Soviet civil law / S. N. Bratus. – Moscow : State Publishing House of Legal Literature, 1963. – 73 p.
2. Cherkasova, O. V. Formation of the principle of good faith in domestic civil law: historical, doctrinal and law enforcement aspects. / O. V. Cherkasova // Genesis: historical research. - 2020. – No. 2. – 4 p
3. Grekova, B. D. Russian Truth / B. D. Grekova. – Moscow; Leningrad : Academy of Sciences of the USSR, 1940. – 152 p.
4. Library of normative legal acts of the Union of Soviet Socialist Republics : website. – URL: www.libussr.ru (accessed: 07.04.2022)
5. Meyer D. I. Russian civil law. In 2 parts : [monograph] / D. I. Meyer ; Department of Civil Law of the Faculty of Law of Moscow State University. – Moscow : Statute, 2017. – 119 p.
6. Russian State Library : official website. – Moscow, 1999. – URL: https://dlib.rsl.ru/01008689976 (accessed: 07.04.2022.)
7. Shershevich G. F. Textbook of Russian civil law / G. F. Sherevich. – Moscow : Statute, 2017. – 222 p.