Research In The Principle Of Public Policy And Good Customs Under The Joint Of Public And Private Law

Principle of public policy and good customs is a basic principle of modern civil law. In modern market economical society, its most significant function is to protect the interests of the nation and social morality. On principle of public policy and good customs, it is always used as a common tool of intervention, such as, public law intervenes private law, political country intervenes civil society. Public policy and good customs shows the socialization of private law, which interprets the inner spirit of law. The aim of this paper is not only to analyze the history of development in public policy and good customs, but mainly to analyze treating the principle of public order and good social customs as a connection between public law and private law. Since public law and private law cannot be in opposition, and the tensions between public law and private law is still remained in whatever content or effect, therefore, we only can examine the existing mechanism of transformation and harmonization in legal system. Except the clauses of transformation in civil law, the basic principles in civil law, especially public policy and good customs, on the basis of traditional function of order preserving and balanced pay, can be acted as a shaft of the connection between public law and private law by the function of transformation. The thesis discusses the connection between public law and private law by analyzing the traditional function of public policy and good customs, and analyzes its transmission function in the perspective of the connection among private law and constitution law, Jus Cogens, ecnomic law. It also explores the concrete application of the transmission function of public policy and good customs under the special system in our country. Allowing for the fact that public interests and social morality coincide with neither normal legal language nor appeal of internationalization, it is weighty tasks to define the principle of public policy and good customs specifically and take the typical processes. For the value orientation about basic rights of citizens in Consititution must enter into the application of civil law, it is necessary to set up measures of fundamental rights in Constitution and the judgement in disobeying the principle of public policy and good customs. Then, in the area of Jus Cogens, the effect of public policy and good customs could be comparable to be a filter of pipe logically on condition that combining the behavior in violating Jus Cogens with principle of public policy and good customs.