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善意和无重大过失是民法学中经常提及的两个概念,它们都是对主体从事民事行为时主观心理状态的一种描述。经常看到诸多论著中写到“善意且无重大过失”、“善意且无过失”的表述,甚至有学者提出善意与无重大过失应予以区分,作为相对独立的两个要件。本文对这样的观点不能认同,本文认为善意本身包含无重大过失,无重大过失是善意的应有之意,二者不是并列关系。为证明此观点本文从善意的历史分析、善意的法律蕴义分析、善意是一法律判断而非事实判断等角度进行了论证。
Good faith and no gross negligence are two concepts often mentioned in civil law. They are all descriptions of the subjective psychological state of the subject in its civil conduct. Many writings are often seen as saying that “goodwill and no major negligence”, “goodwill and innocence” are written, and even some scholars have suggested that goodwill and no major negligence should be distinguished as two relatively independent elements. This article can not agree with this view. This article considers that goodwill itself contains no negligence of gross negligence and no gross negligence is a good intention of due intention, and the two are not parallel relations. In order to prove this point of view, this article demonstrates from the angle of goodwill historical analysis, good faith legal meaning analysis, goodwill is a legal judgment rather than factual judgment.