On The Application Of The Principle Of Public Order And Good Custom In The Field Of Contract

In the field of the contract, the Public order and Good custom regarded as a basic principle, plays an important role in maintaining the public interests and basic morality. Conform to the principle of Public order and Good custom is one of the effective elements of the contract, but because of the connotation and denotation of Public order and Good custom are uncertain, arbitrary application of the principles deny validity of the contract not only cause improper restrictions on freedom of contract, also brings the risk of moral judgment. It is necessary to take some measures to regulate the application of Public order and Good custom in the field of the contract.First of all, based on the problems which were caused by the compensation agreement between either one or both spouses with the extramarital third party, this paper analyzes the theory behind of the problems, There is a risk apply to the principle of public order and good customs to restrict the freedom of contract. Then, on the premise of ensuring the discretion of the judge, the application of Public order and Good customs is regulate by two aspects. the first one is regulation of applicable procedures, which would reduce the use of Public order and Good custom mainly by selecting specific rules and other ways. The second one is regulation of the essence of the application, which would achieve the correct application mainly by clear the evaluation object and methods about the violation of public order and good custom. The evaluation object limited to the subjective or objective factors that content of the contract, mode, objective and motivation. And the evaluation methods include the typing methods and value judgment method. The typing methods are mainly to abstract the specific elements and effect from the similar case of the same problem, in order to facilitate the judicial application. The value judgment method as compensate for the typing methods, mainly to gradually demonstrate on the basis of the value of the freedom of contract, the tightness of the demonstration regulate related to the legitimacy of the results. Finally, the paper discusses the legal effect when the principle was violated, and analyzes the extramarital compensation agreement whether violated the principle of Public order and Good custom in the case.