Judicial Practice Of Public Order And Good Morals

The Principle of public order and good customs is written in China's "General Principles of Civil Law". Article VII states "Civil activities shall respect social morality and shall not harm the public interest, or disturb the social and economic order. However because of the lack of specific standards and applicable rules since it is a matter of principle, the application of it in trail practice trial are often heated debatable.The principle of public order and good customs stems from the Roman law, Roman law experts explained that national security and public order is the people's fundamental interests. They held public order is the national society, and good customs are general moral principles accepted by most social groups. Roman law provides the elements of the subject as the law must have the certainty, possibility, legitimacy and interest of other elements. It provides legitimacy as a subject of legal action can not violate the provisions of mandatory law and public order and good value, otherwise the act is invalid. Public order and good customs as a highly general guidelines, so over long time, theoretically and practically continuous development and progress public order and good customs have been followed to enrich the content of the change. In modern times, among the early legislation, public order and good customs are mainly limited freedom of contract, and then being gradually upgraded to determine the effectiveness of the general basis of legal acts. The final upgrade to the modern civil law is a basic principle of flexibility in terms of a strong general. Public order and good morals connotation and extension of the principle has great flexibility with the characteristics of adaptation of changing with the times.Public order and good customs, whether at home or abroad, are constantly are being concerned, interpreted and developed by jurists and sociologists. While regarding the system and the concept the public order and good customs of is not limited to civil law countries, but also been widely applied in case law jurisdiction. States continuously enrich the public order and morals in the theoretical research and in judicial practice constantly improve the application system. The principles of public order and good customs are constantly been interpreted and applied flexibly from concept to category to the formation of specific legal provisions or jurisprudence.As China's market system and the judicial system continue to improve the use of the principle of public order and good customs about judicial practice has a higher requirement. In legislation aspect, we want to complement the corresponding provisions of the law and practically we need increase the ability of judges through training to make the discretion to better use. In trail practice, due to the discretion the judges have great discretion flexibility to deal with various new social and economic disputes, and therefore the judges should practice it cautiously. Except to compliance with the national security the prudent application of discretion should be accepted by judges. In the application process judge should avoid the phenomenon of "escape to the general terms, but meanwhile prevent the narrow application of the principle of public order and good morals.