The Research Of Legal Application Of Principles Of Public Order And Good Customs

Public order and good customs as a restriction on freedom of contract is an important system of modern civil law, embodies that the personal interests is subordinate to the public interest, and had played a major role in building a modern society civilization. As an important legal principle of modern civil law, jurisdictionally Public order and good customs have been widely used, though, because of the uncertainty of public order and good morals itself, it may result in differences of judges among people. In order to ensure the results of public order and good customs adjudication in our country truly reflect the community's good wishes and meet the requirements of social development, we need a research on the causes of uncertainty of public order and good customs, as well as the method to overcome the obstacles and judicial application, and finally to work out a set of criteria for judging which is applicable and operable to the judges, and to build up a system of protection of public order and good customs, while searching the certainty of public order and good customs in application of law. With the purpose of figuring out constructive solutions of the things above mentioned, this paper here explores a method of historical study and comparative analysis with case-study, start from the illustration of the basic theory of public order and good customs to discussion and analysis on the uncertainty of public order and good customs and making practical recommendations.This paper includes five chapters:The first chapter is an introduction of this paper, through the case study of"case-law of succession disputes"and"case of decoration worker death in new room",it mainly indicating the purpose and significance of the study of uncertainty of public order and good customs. And we can also find the disadvantages of current research by comparing the domestic and overseas studies.The second part, from the basic theory of the Public Order and good customs, studied public order and good customs of history, through the analysis of meaning of the Public Order and good customs, reaffirms its key role as the principles of the China Civil Law, and further provides a theoretical tool for the latter part of this paper.The third part, to the second part of the analysis as the basis, is trying to discuss the reason of the uncertainty of public order and good customs.The fourth part, respectively analysis and discuss the method of overcoming the uncertainty of public order and good customs in Germany, France, Japan and other countries by case-study, and finally conclude the solution applicable for us. The fifth chapter tries to figure out the certainty of public order and good customs apply to China's legal system on the base of the former part of this paper.In conclusion:in order to ensure the results of public order and good customs adjudication in our country truly reflect the community's good wishes and meet the requirements of social development, the academy and the legal system should further enhance and deepen the research of the public order and good customs, and to induce the chances of uncertainty of it which enable the application of public order and good customs more reasonable and enlarge its positive influence towards the evolution of the law.