A Probe Into The Application Of The Principle Of Public Order And Good Law In Inheritance Law

Public order and good customs is one of the most important basic principles in the domain of civil law. However, we have become aware of that same law cases have different court decisions during the judicial practice of these principles, because of no definite legal provision and standard. Formerly people focused on the problem of the justification of public order and good customs. But now we urgently need a specific criterion about this principle in the field of justice. Without agreed-upon standards in theory, the function of public order and good customs will be limited tremendously. The main the abstract principle concrete, practical, institutionalized, operable, and take good advantage of it in the field of testamentary succession. This principle which has good performance in law of advanced countries will have a same effect in Chinese juridical practice.Chapter one is “the introduction of the cases”. First of all, the article have introduced Luzhou legacy case, Hangzhou legacy case and Germany legacy case, and then compared Luzhou legacy case in Hangzhou legacy case and Germany legacy case. After comparison, we found these similar cases have different verdict results. By this way, we can find there is a big problem about the application of public order and good customs in the field of inheritance.Chapter two is “the jurisprudential analysis of public order and good customs”. This chapter introduced and analyzed the legal rules of public order and good customs be from “the general civil law of China”, French civil code, German civil law, the civil code of Japan and the civil code of Taiwan. After comparison Chinese and foreign rules, we found the rules of the general civil law of China were to abstract to use. Therefore, it is necessary to have a method to make them concrete. In this chapter, the jurisprudential analysis of bequest was also important, including the definition of bequest, relevant legislation and the relationship between freedom of testament and public order and good customs.Chapter three is “the application of public order and good customs in the practice of testament”. On the basis of chapter one and chapter two, this chapter focused on the application of public order and good customs in the practice of testament, including the condition of this principle’s application, the problem about freedom of testament, How to identify whether bequest has broken any laws, and set up a system about the limitation of freedom of testament. The last section, we return to the cases and use the method of application to analyze those cases again.Whether from theory or the practical significance, the process mode and Processing way of thinking in Germany legacy case has the great value of learning. With the “scale” of Germany legacy case, the article focus on Luzhou legacy case and Hangzhou legacy case. Found the deficiencies in this cases and Put forward the Suggestions to solve the problem, author of this paper hopes This kind of problem can be well resolved.