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A Comparative Study On The Principle Of Public Order And Good Custom

Posted on:2015-01-03Degree:DoctorType:Dissertation
Country:ChinaCandidate:D Q YangFull Text:PDF
GTID:1266330428972472Subject:International Law
Abstract/Summary:PDF Full Text Request
Just as modern civil law being the social standard of modern civil law, the principle of public order and good social customs has become the value idea and norms which is dominating the whole law order, and is the boundary of private autonomy. The corresponding concept in common law is the "public policy", which is also widely used. Considering that the legislation, judicature and theory about the principle of public order and good social customs in China lag behind the needs of the development of modern civil law, it is highly time to make a thorough and systematic study of the public order and good custom principle.In view of the different stipulations and understandings for this principle by the legislation and theory of all countries and related areas, how to define "public order and good social customs" is the primary issue of this systematic study. A concept of this principle is acquired on the base of these different stipulations and understandings and of comprehensively comparing the public order and good customs and their relationship. It refers to the general interest and general morality of the state and the society, which is mainly reflected in and also includes the values and norms of a country’s current legal order, especially the provisions of basic human rights in the constitution. Secondly, the relationship between public order and good social customs and social morality, social order and autonomy of will be investigated from the perspective of the legal philosophy so as to explore the moral basis, social basis and value basis on which the principle is based, which can deepen not only the substantive understanding of the principle, but also the argument on its concept. What’s more, the function of the principle will be deeply studied. Specifically speaking, the principle has the functions of legislative standards and operative norms, of overcoming the limitations of written laws, of pursuing substantive justice and promoting the fusion of the values of the public and private laws.Just like any other system possessing vitality, this principle has experienced the processes of origin, establishment and development. With its historical development and evolution of its function as the clue, this paper is to explore its development history and law in order to provide the correct direction for our country’s legislation and theory. From a historical perspective, the good customs followed by future generations originated from the provisions of Rome Law, while the public order highly praised by common people should be contributed to Code Civile de Francais. Code Civile de Francais is the first to establish the principle, which has been widely recognized by the legislation and theory of countries and related areas implementing the continental law. And with the development of the times, this principle has become a supreme principle of modern civil law."Public policy" of the common law, though a different title, also has a similar development process. As for its functional evolution, this principle in modern civil law has not become only the negative limitation to the autonomy of will, but has become the positive intervention to the social life, which has been completely applied to extensive fields. The development of this principle in modern times is mainly reflected by the expansion of the concept, of application fields, and by the easing of its effect.The extremely abstract connotation of this principle is bound to make its application threaten the stability of the law, so that the regulation on its application must be strict:firstly, set a premise to applying the principle so as to limit its application from the origin. In any case the stability of law gives places to the justice of case shall be strictly limited, the application of this principle is no exception. Its application shall achieve justice of the case for its sole purpose, and should be bound by the exhaustive legal rules, for which stronger reasons should be provided. Secondly, the principle has two kinds of application. The stylized application has both abstract and concrete functions, which can be respectively applied to abstract values and concrete affairs, while value adding rule is reflected as the abstract application, which can compensate the inefficiency of the stylized application within the scope of the application and play the role of "revealing". Therefore, priority should be given to the stylized application, while the applying room of the value adding rule should be restricted, scientifically regulating value judgment so as to enhance the certainty of the judgment. What’s more, for the violation of the principle, a comprehensive judgment should be in accordance with the contents of the cases, the collateral conditions, and the motivations and objectives of the interested parties and related factors. The "consensus" on which the judgment is made should depend on the medium moral standards or the average person standard in specific period of the specific region, and should not be against the values and norms of the entire legal system, especially the provisions of the basic human rights in the Constitution.Just as Wo Qirong said, both the exercise of rights and implementation of obligations should comply with the principle of honesty and credit; whether it is the regulation of the definition of self-help, or it is the rule that the explanation of legal acts works, they all result from the specific applications of this principle. In view of the broad scope of this principle, it is hard to do the study comprehensively. As a result, it becomes a main study method to analyze the issues which are not so systematic themselves or need a more thorough analysis. On the basis of the previous discussion of the application of this principle in related fields, following achievements have been made:firstly, this principle is a filter of a custom and customary law to purify them. That is to say, whether it is the customary law or it is a custom in fact, as long as this principle is violated, there is no application at all; secondly, according to the reservation of scholars, we made an argument about the question whether profiteering is a special rule in the public order and good custom principle, and also made a suggestion on the building of profiteering in China’s future civil code; thirdly, Standard Terms, alike a "double-edged sword", brings efficiency and convenience to modern society while possessing the potential threat to "freedom of contract" and "justice of contract". However, the principle of public order and good social customs is the standard to measure whether the Standard Terms is beyond boundaries of "autonomy of will" and it is also the legitimate basis of the effect of the Standard Terms. Fourthly, we advocate classifying gambling debts according to whether is it against this principle. We also suggest that we should adopt the Russian law, rather than a voluntary payment, to make all parties in gambling accept the consequences caused by their own illegal behaviors, which not only reflects thoroughly its positive intervention to social life, but also is in line with the purpose of the pursuit of real justice in the modern civil law.
Keywords/Search Tags:public order and good custom, private autonomy, publicpolicy, discretion, substantive justice
PDF Full Text Request
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