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Comparison Of The Principle Of Public Order And Good Morals Between Germany And China

Posted on:2016-11-06Degree:MasterType:Thesis
Country:ChinaCandidate:J Y ShengFull Text:PDF
GTID:2296330461468480Subject:Comparison of the Law
Abstract/Summary:PDF Full Text Request
As one of the principles of civil law, the principle of public order and good morals has obtained a big development in theoretical research and has been widely used in judicial practice. This paper tries to introduce the German law’s thinking and logic of standard mode and judicial application experience on the Principle to provide reference for the application of the Principle in China’s judicial application.The first part of the article discusses the basic theory of the Principle, including the definition, historical evolution and functional analysis. The definition of the Principle can be carried out from two aspects: public order and good morals. The former is about the social order, the latter is from the interior of the moral concept. The two parts make the rule fit the ethics, and make the ethics can be implemented in the rule. From the view of historical point, good morals originated from the Rome Law, and public order came from France. Generally speaking, people believed that the Principle was officially established in the German Civil Code. From the angle of functional analysis, the Principle is functional as the legislation standard and action norm.The second part of the article compares the standard pattern of the Principle between Germany and China, which paves the way for the third part. The Principle in the legislation of China has not caused enough attention. The Principle is not clearly stipulated in legislation, and the type of the Principle developed slowly. In contrast to China, the German Law sets up a standardized system of the Principle.The third part of the article makes a comparative analysis of judicial application between Germany and China, mainly on China’s effective judgments of "marriage involved gift". It summarizes several kinds of judicial practice in China at present in the typical and general case, carries on the analysis to the contents of the judgment from the angle of legal application and the result of the trial. On this basis, it reviews and rechecks the main legislation reference of China’s judicial applicable, the German Civil Law and related cases. It points the view that the trial should be based on the marriage law and consider the problem of common property protection as prior.The conclusion part carries on the summary of legislation and judicial application of the Principle in Germany and China. It puts forward suggestions and improvements to the legislation and judicial application of the Principle.
Keywords/Search Tags:the principle of public order and good morals, legislation, judicial application, comparative law
PDF Full Text Request
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