On The Public Order And Good Morals Principle Applicable In Judicial Practice

With the acceleration of the process of China’s legal construction, the people’s awareness of the law is growing increasingly and people are concerning more about the events related to the interests of the group. In this backdrop, maintaining the authority of law and achieving social equity and justice as much as possible is particularly important. However, due to the current state of China’s legislation does not fully meet the needs of the rapidly development of the needs when there isn’t a proper particular law of the community, the general terms are often used by count to make up the loopholes in the law of the case, which led directly to co-different-contracting occurs. caused much controversy in the community, the legal effectiveness is greatly reduced. The main purpose of this paper is to explore the specific criteria and conditions as able to standardize the use of general terms the principle of public order and good morals in practice by combine the general terms in the judicial practice of general theory and domestic and international legislation together.The first part of the article distinct the concept of public order and good morals from the point of view of the concept of jurisprudence. It means that agreeing with the opinion that the public order and good morals principles include the maintenance of national interests and universal values of social protection in two parts. This article is different from the general point of view. It discussed the definition of the criteria of public order and good morals in detail based on the dual perspective of legal theory and judicial practice.After giving a clear definition to the basic concepts, the second part analysis the nature and function of the principle of public order and good morals from the theoretical level. To provide theoretical support and study and formulate the specific implementation detailsin judicial practice, discussing the nature and function, instead of just the simple and comprehensive of the conclusions of previous research, the author published his own understanding from the practical point of view. In author’sopinion, in the modern market economy conditions, introducing the code of ethics to the legal norms of the regulation of social and economic activities is to comply with "Individuals have the right of the pursuit of freedom and happiness. CD in for the limits of public interest, given the power of the law, full recognition of responsibility for its force of public interest obligations ", that is, to some extent, the purpose of restricting individual freedom to safeguard public interests is to protect the interests of the individual more sufficiently.The third part describes the current role on the principle of public order and good customs-related provisions in home and abroad and the problems in the use of public order and good customs principle of the existence in judicial practice, that is, we should distinguish that in what occasion, and under what conditions can apply public order and good customs principle, and in what situations, what conditions can not apply the principle of public order and morals, to take its advantages and avoid its weaknesses.In the fourth part, according to the investigation of the current legislative situation at home and abroad, in order to carry out standardization in the trial on the use of general terms the principle of public order and good morals, change the status quo of the different co-contracting, a set of program standards should be established. First.we should build up a basic framework for the content of public order and good morals through the introduction of value judgments, which requires the judge should be based on certain objective criteria, rather than rely solely on the judge’s subjective likes and dislikes choice in the exercise of discretion. This objective standard can be achieved by building a hierarchical, geographical, the reference case of a procedural system.