Analysis The Legal Application For The Principle Of Public Order And Good Customs

The principle of public order and good customs is one of the basic principles of the civil law, which is rather abstract, and because of lack of definite judgment standard, it occurs that same case-situation judge differently. This article will take the legacy case(Zhang Xueying charges Jiang Lunfang) as the angle of view, focus on the problem of judicial application of the principle of public order and good customs. The first part of the article introduces the example case, by using the specific case review and judgment, to raise the related questions;the second part is the explanation and function of the principle of public order and good custom as well as a simple comparison of its development at home and abroad; at the same time, it describes the concept and development of freedom of testament, and briefly analysis how the freedom of testament in China lags behind the relevant laws; the third part is the discussion about the conflict between freedom of testament and the principle of public order and good customs,via the dialectic analysis of prior application of law principles or law rules, as well as legal force of freedom of testament;the forth part enumerates the similar cases’ details and judgments from Germany, Japan and Taiwan of China, through the judicial practicing of other regions, to understand the application of the principle of public order and good customs in foreign countries; the fifth part takes the practice of our country’s legal system as viewing angle, emphatically discuss the situation and specific rules for application of the principle of public order and good customs, at the end of the article, focuses on our country’s judicial discretion restriction, application object’s restriction, case-guiding system and other applicable rules of the principle of design of public order and good customs.