Rational Principles Of Public Order And Good Morals

The basic principles of civil law, which are the core of the theory and the most fundamental Guiding ideologies, have great significance to legislation and application. So it is necessary for us to set them forth clearly, to comprehend its basic concepts which behind the literal meaning, to grasp its function in legislation judicature. Nevertheless, the basic concepts and the concrete rules will come apart and the concrete rules will out of contract with the concept and come into a barrier of the society for lacking of basic concept's guiding. Among the basic principles, public orders and good custom is the most typical and the most important one. Everyone knows it, but nobody can expound it clearly, although we all know its importance. As the point of the author, it relate to the inference of public law and the private law and forth relate to the life and death of the civil law, so we must studied deeply and try to get it clear.As a basic principle, although can't provide a direct logical guidebook for operating of law, it is really the bridge of operation and people common concepts and the "match point" of rules and concepts.According to this, I intend to discuss it from two aspects: first side: clear-cut the contacts between it and common concepts on thereto; the second: clear-cut the function of creating rules, which is concretely and logically. Constructions as follows:First chapters: one sides of reasonableness--Look for thecommon concepts.In the chapter, we discuss the contacts of the principle and people common concepts, the concepts in present society. It has two parts:Part I :Traditional theories. This part primarily studies connotation of the principle, current legislation and the process of its development. We can see from the facts, that the principleis a category which can't abstractly defined, so I hope to find another path, analysis and study it from the angle of "means -function".Part II: Reconstruction. We reconstruct it from the angle of its function. It only has the function of creating the rules in traditional idea, but in my option, that only the sufface, it's essence function is to interfere private-autonomy. In this part, the primarily social background, orders that we needed and the common concepts are discussed. And get the principle's primary function: Supporting the order of free competition and offering the aegis of basic human rights.Second chapter: another sides of reasonableness--slip intothe creating of concrete rules. In the charter, we discuss the deserved function of the principle and the tendency of its developments in property law and personality law. This chapter is divided into two parts:Part I : In Property law. Property law is mainly composed of Contract law and Law of things. In contract law, the validity of contract is discussed exhaustibly and consider that the principal of public orders and good custom should be the criterion of the contract's validity, so any rules which not concreted from the principal can't set the contract into invalid; in Law of things, the doctrine that the rights of real estate confirmed by law is mainly discussed and consider that this doctrine has the trend of softened and that reflects the tendency about principal of public orders and good custom.Part II: in personality law. In this part, the marriage law and the inheritance law are discussed. Through compare, the author consider that in those domain the principal of public orders and good custom also has the trend of soften, its intension has been renew.Unfinished: reiterate the theme of this thesis.