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A Research On The Principle Of Public Order And Good Custom

Posted on:2008-08-09Degree:MasterType:Thesis
Country:ChinaCandidate:F XueFull Text:PDF
GTID:2166360242459815Subject:Law
Abstract/Summary:PDF Full Text Request
This thesis will focus on the interpretation of the principle of public order and good custom, and it is divided into five parts.Part-1 A research on the definition of public order and good custom, its standard and its function.The principle of public order and good custom refers to the civil juristic actions should not be in violation of the public order, the good custom of the society, the general ethnic criteria and the common interest of the country. In a related prejudication of German, public order and good custom is stated as a sense of comity of all the believers of fair and justice. It mainly contains two aspects: public order and good custom.Influenced by the civil legislation and the theory of civil law of the former Soviet Union, the current law system of our country does not adopt the phrase public order and good custom, rather the expression of the common interest of the society and social morality are used to convey the same spirit. The connotation and the function the phrase the common interest of the society has is almost equivalent with the expression public order, and it is also the case between expression social morality and good custom.Part-2 The understanding of the origin and the development of the principle of public order and good custom will contribute to the understanding of the development in the current stage of our own.The principle of public order and good custom originates from the law of Rome. There were various decrees on good custom in the law of Rome. The illegitimacy of purpose, reason and preconditions and the basic ideas of evaluating the efficacy of the covenant based on the idea of pubic order and morality can all be traced back to the law of Rome.Both the two system of maintaining the public order and keeping the objective standard of the trade have their own ends. Both the two line of requiring and the efficacy of law developed on its own from the origin of the law of Rome, but joined with each other to the modern corpus juris, covered by the abstract notion of public order and good custom and became the two major functions of public order and good custom.The understanding and practice of public order and good custom in our legislative system of our country started from the reformation at the end of the Qing Dynasty, when the first draft of the civil code was drafted by some Japanese scholars. In that civil code, only the notion of public order was stated, without mentioning the idea of good custom. Based on the first draft after the foundation of the Republic of China, the second draft was designed, using the phrase social conduct in replace of public order. The Republic of China officially published The Civil Law of the Republic of China, in 1929-1930, in which the Article 72 stated: any legal action in violation of public order and good custom is invalid. Hereby both the expression public order and good custom will be adopted, and its practice will be confined to the Taiwan district of China.Part-3 The observation and comparative analysis of the principle of public order and good custom.Through the comparison of the principles of pubic order and good custom in German, France, and Japan, the current development of the principle of public order and good custom will be introduced.In German, the notion of public order is excluded, while the concept of good custom is established. At the end of 19 century, the civil law was edited and written on the basis of the law of Rome. In its first draft, the notion of public order and good custom was clearly stated and in the legislation. However, German only adopted the notion of good custom in the end.Different from German, the notion of public order is in parallel with the concept of good custom in the law of France.There was also a hot debate whether or not to keep the notion of good custom while in designing themself civil corpus juris. And at last it was decided to adopt both the idea of public order and good custom.Part-4 An individual research on the principle of public order and good custom.From the perspective of the whole world, the principle of public order and good custom is diminishing in the field of sex, while the diminishing of the good custom should be regarded as a big step forward of the society. questions of human beings, the value and dignity of human. In a modern society where human beings are in pursuit of freedom and the emancipation of human desires, there is one thing to be sure that it agreement on the responsibility of sexual behaviors is not compulsive in law and should not be forced. However, it does not mean that the giving of properties with relation to sex is invalid.The relationship of marriage is a kind of civil conduct relationship. The conduct of marriage belongs to civil conduct. Therefore, the behaviors in marriage which are in violation of family ethnics are in violation of the principle of public order and good custom, and which will result in the inefficacy of marriage.The principle of public order and good custom was originally a limitation on the freedom of the contract. It evolved into a major principle in the private law and even became the supreme principle of the autonomy of private law. The public order and good custom moves toward the basic spirit of the law is the reflection of the socialization of the private law. Two scholars of Japan even elevated the notion public order and good custom to the level of fundamental ideas of the whole system of the law.Part-5 The perfection of the principle of public order and good custom in legislation.In improving the principle of public order and good custom, we should not only be aware of its deficiencies, but we should also associate it with the civil corpus juris of our own country. It is indeed a very complicated problem that what kind of structure of the civil corpus juris will be adopted. We can draw the legislative experiences of the Taiwan Province in the legislation of our country, to regulate from the perspective of requiring and the aspect of handling, that is to say, in the future civil corpus juris, it should be made clear that the efficacy of legal actions and the practice of civil rights should not be in violation of public order and good custom. In the meantime, it should be stated that any civil actions in violation of public order and good custom is either invalid or out of the protection of the law. Since the principle of public order and good custom is very much related to both legislation and judicature, and will be practiced in individual cases. Under these circumstances, the power of the judges to evaluate and judge becomes even more important. Therefore, besides the legislation of law should be strengthened, the consciousness of following the principle of public order and good custom of the judges should be advocated and the judicial actions should be regarded as a tool of promoting the standard of morality and manner of the society.
Keywords/Search Tags:Principle
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