Judicial Application Of Public Policy

Under the context of legal regulation and jurisprudential theory, public policy is a law concept which has a relatively specific connotation and a relatively broad extension. As to its fundamental Characteristic, public policy is a governmental decision-making and regulation which bears public welfare request. Public policy is especially closely related with judicature. Public policy often plays its role as remedy when the judge faces blanks and oversights of law, so from the point view of the writer, public policy should be regarded as informal legal source which is different from formal legal source such as legislation which originated from democratic procedure. Although justice should be the fundation of public policy, the question of correctness should be considered. Because excessively application will threaten people's private right, public policy rule should be applied actively and restrictively during the process of judicial adjudication. There are three important questions during the process of judicial adjudication: scope of accepting cases, interests weighing, rule of public order and good custom. Whether public policy disputes may enter the procedure of administrative litigation to be checked by judge? The scope of accepting cases should be limited reasonably to ensure judicial examination on public policy and to let public policy rule plays its original function. When judge apply interests weighing rule to select and discard different interests which are contradicting with each other, he often use public policy which bearing public interest as criteria of decision making. What's more, this kind of application should reach the balance between public interest and individual interest, and the former shouldn't be absolutely prior to the latter. The rule of public order and good custom is a fundamental rule of civil law and is highly coincidental with public policy rule. When no realistic regulation can be found, there are unstinted room to apply the rule.