Judicial Application Of Public Order And Good Customs

Public orders and Borus mores is an important principle of the civil law in the continental genealogy of law. Especially in the 20th century, the principle of Public orders and Borus mores is known as the fundamental spirit of the law, private law society of the principal manifestations. Gein principle of Public orders and Borus mores as one of the basic principles of civil law, civil law can not only command of specific norms, but also because of its greater flexibility, as a judge to overcome the limitations statute, law and society to resolve the tension between the life of tools. Then, whether we will be clear what level of detailed elaboration and interpretation are necessary.In the past, Public orders and Borus mores in China's mainland has not been given due attention until recent years, the judicial practice the application of public order and good limit "the public" autonomy of the numerous cases before triggering the theorists and practitioners of many discussions and research. In view of practice applicable to the principle of Public orders and Borus mores of types of cases is difficult to fully start, this choice from the "affair" this type of property disputes arising from the perspective of the case study of public order and good application of the principle issues. This paper argues that the principle of Public orders and Borus mores should be focused on the following three issues to discuss, namely the principle of public order and good is what, why apply, how to apply. In contrast, the mainland region of scholars of Public orders and Borus mores of research is still limited to the first two issues of discussion, while the third question of the study and some weak. However, Public orders and Borus mores of the principle is the most complex and most pressing problems. As the discussion of this issue is about the way the concrete application of the law, which will increase the difficulty of the study I shallow roots, hard not deep, but still the problem with reality "affair" property dispute case, as a key issue of this paper to be discussed, in order to attract more attention and further study.In addition to this introduction, the body is divided into six parts, as follows:The first part of the problem. In this section among the author first refers to the existence of two real because "an affair" caused by the case of property disputes, trying to elicit the focus of discussion, namely: which in such cases, how to correctly apply the principles of Public orders and Borus mores in order to realizecase justice. Trying "to point" way to discuss Public orders and Borus mores of the principle .The second part, the principle of Public orders and Borus mores. In this section, I first set out by many scholars for the "public order" and "good morals" of cognition, comparing the relationship between the two concepts, discuss its proper function to clear the principle of public order and good concept; then, the country of Two Schoolsor regional legislative style in the principles of public order and good specific introduction, trying to better understand what is the principle of Public orders and Borus mores.The third part of mainland China in the current civil law, "Public orders and Borus mores. "Primarily introduced China's current laws and regulations on the mainland public order and good provisions, in addition to the newly published "Marriage," draft judicial interpretation discussed in this article on the handling of cases involving the provisions discussed, analyzed in the discussion of such cases .public order and good application of the principle of necessity.Part IV, the principle of public order and good relationships with other relevant principles. This part of the autonomy principle, the principle of good faith - both with the principle of Public orders and Borus mores are closely linked to the basic principles of civil law as the focal point, are discussed with the principle of public order and good links with the difference. Intended to further clarify the application of the principle of Public orders and Borus mores .Part V, the principle of Public orders and Borus mores of justice apply. Is the focus of this paper lies, aimed at exploring how to make the Public orders and Borus mores of the principle of certainty, thus limiting the judge's Public orders and Borus mores of any use. First, from a macro perspective of Public orders and Borus mores of the principles of justice, then, to the microscopic, to the "affair" led to property disputes in the discussion of specific principles of Public orders and Borus mores of justice apply.Finally, Public orders and Borus mores of the principles and practice of judicial discussion, return to the article the first case analysis, and strive to "a special general summary to generally guide the special" two-way effect.