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The trust mechanism in private law: fiduciary duty and good faith as examples

Humans’ social lives and personal relationships cannot work without trust. In modern China, trust deficiency, an increasingly social problem, has caused great negative effects and even led to some violent events. Some doctors have been beaten or even killed by their patients who think they have taken advantage of their vulnerability to make profits for themselves irrespective of the patients’ heavy costs and suffering. Some local governments are besieged because of people’s long-term distrust and belief in certain rumors. Some specialists have lost their authority and creditability in their areas of their expertise as the masses question their trustworthiness. Selfishness, indifference and various conspiracy theories bubble up inside a society lacking trust, within which lack of communication, cooperation and safety occur, while high levels of autonomy and a stable order cannot be facilitated over the long term. Although trust is a highly discussed topic in sociology, it has not received enough attention in legal research. In law, especially in private law calling for autonomy, the importance of trust should be considered thoroughly. In order to enhance and protect trust, the private law internalizes trust between persons into specific legal systems, such as property, contract and tort. Meanwhile, trust, as an informal social system, can supplement law, which has its own disadvantages as a formal social system, and they act together in civil society with instant interactions. Given the wide scope of trust issues, this article chooses fiduciary duty in common law and good faith (bona fide) in continental law as examples to analyze trust mechanisms in private law via comparative research.