Research On Judicial Application Of The Principle Of Public Order And Morals

The principle of public order and morals has been widely used in basic people’s courts and intermediate people’s courts.However,there are some problems during application of the principle. The main ones are uncertainty of the scope, unsureness of the applicable conditions and indeterminacy of the applicable approaches.On applicable scopes,the legal doctrines and legal provisions are various from each other in scope of the principle.Comparing with the legal doctrines, legal provisions have expanded scope of the principle from legal acts to both legal acts and exertion of rights.Usually,the principle of public order and morals denies the effectiveness of juristic acts. While in judicial practice,the principle also regulates means of rights relief and restricts powers of ownership.The changes are caused by differences between legislative languages and the failure of setting up principle of right abuse.On applicable conditions, people sometimes misuse the principle because of misunderstanding of relationship between the principle and the specific rules.Besides, the principle sometimes can be confused with other principles. When it comes to whether the principle or the specific rules, we should know that only in three conditions: exhaustion of the rules,unjust results and better reason can we apply the principle.When it comes to choosing a principle among principles, we should know exactly the logic and the scope of the principles.The principle of public order and morals mainly plays a negative role in judicial practice. It is often used to limit rights and the autonomy of private laws. It is mainly applied in the field of marriage and family and in the field of property between interested parties who are in close relationships.On applicable approaches, the judge should take both interests balancing and the core of principle-protecting public interests into consideration. We can see interests balancing in judges’conclusions of legal acts’ validity.We can also find it in judges’decisions of restitution of the property.The principle of public order and morals aims at protecting public interests. So the judge can ignore private interests when the case is antisocial.However,the judge needs to balance both sides’interests when the case is less antisocial.Social status of both sides,subjective malignant of litigants and private interests should be considered during the balancing through which legal logos and legal sense can be combined with each other. The judge should make better use of interests balancing in practice to bring the principle of public order and morals back to its essential:Justice in equity.