Specific Judicial Application Of The Pricnciple Of Public Order And Good Customs

Public order and good customs has been universally recognized by countries all around the world and has been widely used in the administration of justice.But it is a challenge for the principle to solve the uncertain problems in the reality.The author divided the thesis into three parts elaborating the legitimacy and the specific judicial application of the pricnciple.The first part is an elaboration of public order and good customs.The definination of the principle of public order and good conduct is that all citicens should not violate the civil social order and good customs, and also shouldl not violate the general code of ethics and the general interests of the country?In Roman law, we had fould the act about the public order and good customs. The period of the French Civil Code, it is said that the cotent of public order was extended and good customs was thought of the part of it. In "German Civil Code", German formed his particular system of public order and good customs?When the"Japanese Civil Code" came forth, the public order and good customms has been a basic principle of the Cilil Law.The author point out emphatically the following two functions: (a) to maintain and achieve social justice in real terms, (b) to ensure the stability and openness of the Civil Code.The second part is about the criteria of a violation of public order and good customs.The objects of breach of public order and good customs to not only include legal acts, but also include non-legal acts and the person's cognitive purpose.Again,we could determine whether the foreign law is applicable in China using the public order and good customs.Whether it is the breach of public order and good customs or not,we should adhere to the standards of justice, the ethnic differences and regional differences in standards and adhere to specific legal proceedings.The third part is the research on the specific judicial application of the pricnciple of public order and good customs.We should notice the appling sequence of the legal norms and principle of public order and good customs, the applied procedure, the interests and the value choices of the judge and type of the breach of public order and good customs. First, a judge can apply the principle of public order and good customs in the specific case in the following condition: (a) the absence of specific legal norms .(b) the value of the applying specific legal norms breaching fairness and justice. Second, we should integratedly use the Judicial Committee system and the Supreme Court's approval in the special circumstances for an effective restrictions to the judge.Thirdly, the author combed the following types:The type of behavior violating social order and restrictions , the type of behavior limiting the fundamental rights of individuals , the type of behavior of violating ethical standard , the aleatory type of behavior and the type of behavior of violation of protecting vulnerable groups.The fourth,in China, it is necessery to raise the judge's legal knowledge and professional ethics and to spread the spirit of the law, legal philosophy, values, and even the basic requirements of social morality .