Public Order And Good Morals Principle Study

Public orders and Borus mores is an important principle of the civil law in the continental genealogy of law. Especially in the 20^th century, it had become a general principle of the civil law.Zheng Yu-bo, a famous scholar of the Taiwan district, regarded this principle as a "King provision" in the civil law. As a basic principle of the civil law, Public orders and Borus mores is not only a king of the other rules, but also an instrument by which judge can exercise the judicial discretion to overcome the limitation of the statutory law. So it is very necessary for us to expound it clearly, to comprehend its function deeply, to grasp its application in the judicial process fully. However, scholars in the mainland of China have not realized the importance of this principle. The study on Public orders and Borus mores is still on a low level. To a certain degree, this fact proved that the circles of the civil law have not put much stress on the philosophy of the civil law.This thesis put great emphasis on the discussion of the follow three questions: (1) What is the principle of Public orders and Borus mores? (2) What is the function of this principle? (3) How to use this principle in the judicial process? Up to now, what the scholars in the mainland of China concerned were the first two questions, and there was very little study on the third question. However, just this question is the most complex and important question at present. Because the discussion on this question relates to the methodology of jurisprudence, the study on this question is not just a task of the civil law, but also a task of jurisprudence.This thesis is made up of four parts:Part â… : The concept of Public orders and Borues mores. In this part, the author firstly gives a detailed account of the source of the principle, and regards that there had an embryonic form in Roma law periods, but before the arising of the France Civil Law, there was not a stipulation law in writing. Up to the 20^th century, Public orders and Borues mores began to stopgap a general principle from a common principle. Then the author finds that there is not a definition thatcan be accepted by scholars, so this thesis gives up the attempt to define this principle and turn to describe this principle. The author believes that this description is also beneficial to the study on this principle.Pat II: The function of the principle of Public orders and Borues mores. This thesis considers that this principle have two important functions: (1) It help to bring about the process in which jus publicum and jus privatum blend into each other; (2)As a general clause, this principle help to replenish the gaps in law and to overcome the limitation of the statutory law.Part III: The application of the principle of Public orders and Borues mores. This part is the most important in this thesis. The purpose of this part is to discuss what can we do to advance the certainty of this principle, and to restrict the judge to exercise the right of discretion at will.