Violation Of The Principle Of Public Order And Moral Criteria

Public order good morals principle is one of the basic principles of civil law. The Chinese Taiwan scholar Mr. ZhengYubo once said,"Today, public order and good morals is already the supreme principle in private law." Public order good morals principle to become the supreme principle of the civil law is mainly because he plays an important role in limiting the autonomy of private law, in the free acting of contract and it gives the judge the right of discretion, makes up the defects of the written legal norms. However, our civil law does not expressly require the principle of public order and good morals, which is just reflected in the "Civil Law" and the" Contract Law". Stipulated in "Civil Law Section7":"Civil activities shall respect the social ethics and shall not harm the public interest." Stipulated in "Civil Law Section58":"The civil act which violates the law or the public interest is invalid." In China, the practices of "Contract Law" and "Civil Law" basically consistent."Contract Law Section7" provides," The parties entered into performance of the contract shall abide by laws and administrative rules and regulations, respect social ethics, and shall not disrupt social and economic order, impair the social public interests.""Section52" provides," The contract which harms social public interests shall be invalid." In China’s judicial trail practice, although there are many cases relating public order and good morals, the applicable cases are relatively less. In a few cases of existing similar case facts but there have been diametrically opposed to the referee, and in some cases unavoidable appeared the abuse of the discretion of the judge. Lay the cause, and it is easy to see that our country’s existing legal system does not establish a reasonable standard judgment system and judges’procedural provisions which are applicable to the public order and good morals principle. This article will start from the basic theories to explain the above problems.This article takes the achievements of the previous studies as reference and starts from the basic theory of public order and good morals principle. Besides discussing the basic standards of public order and good morals, we will do further discussion about the specific criteria issues about several kind of common cases, and finally, raise the suggestion on how to effective use pubic order and good morals in the judiciary through describing how to limit the judges’ discretion.The article including five parts:the first part is drawn by two cases. These two cases in China are the public order and good morals case。The first part of the two cases are drawn thinking problem, that is what the situation should be applied to public order principle of good morals, is when all the legal issues in the betrayal of morality should be identified for the violation of the public order good morals, that violate public order shall follow the good morals what kind of the judgment standard, the judgment standard in the specific case again how applicable; The second part of the main first elaborated the public order of the principle of good morals basic theoretical issues, including public order of the principle of good morals fundamental meaning, the domestic and foreign development as well as the relevant public order the typification of good morals problem, for the third, fourth part of the discussion laid a theoretical foundation; The third part in based on the above research public order of the principle of good morals judgment standard, this part from the basic standard of judgment, and then we study of several specific disputes in the specific applicable judgment standard. The fourth part is mainly from the point of view of the program to judge this discretion power restriction, the entity as must rely on the proper procedure, the judge’s discretion itself is in no entity law as the support of a legal balance, so that the judge in the process of discretion to follow certain procedures in the process of guarantee entity as it is very important.