The Discussing Of Social Public Interest In Contract Law

At present, China is in a period of rapid social transformation, citizens’ honesty and moral landslide become a major social concern, a variety of "disorder" and "anomie"behavior it is often seen. Based on the limitations of the statute law, it is not possible to take into account all social life events that should be standardized by law". At present,the general principles of the civil law that the contract specifically defined as: with full civil capacity in human subjects, equal consultation, under the premise of the establishment of the independent establishment,alteration or termination of the trading relationship with the corresponding formal contract, contract law is the trading relationship between the parties to adjust the law and fully guarantee the equality and legitimacy of the contract voluntary and. From the specific content of judicial practice,the value of contract law lies in the protection of free will and legal rights of the parties.At the same time,the freedom of contract law is limited,and its main point is that the legal interests of the parties, the transaction order of the maintenance and protection of the legitimate interests of the parties to the basic core of fairness and justice. The above is the "restriction of freedom in order to obtain more freedom of the famous law of freedom of contract, is not arbitrary but is boundless, in the implementation process need to simultaneously by ethics, social order and legal regulations and restrictions. In the current judicial practice, the courts will be "damage to the public interest" of the contract is not uncommon in the judicial case. In the absence of specific legal provisions,the judge applies "clause harm public interests contract, damage the public order and morals behavior of the parties to regulate, which actively respond to the legislative purpose and public welfare is the judicial social responsibilities.Unfortunately, China’s legislation on the "damage to the public interest," the exact meaning of the specific types and rules are not refined. On the surface, the civil law of our country on the social public interest is not uncommon. In the general principles of the civil law, it is pointed out that the premise of civil action is not to violate social morality and not to harm the public interest. If the civil activity is not in conformity with the social morality or the harm to the social interests, the civil act is invalid. The contract law followed the provisions of the general principles of civil law, and in the fifty-second clearly put forward all the violation of social morality, the public interests of the contract will be invalid". In addition, the copyright law, patent law and other special law also have similar expressions. From this theory, the judge cited law does not seem to be a problem. However,the social public interest is not the concept of a clear point of view; the law does not clearly define the type of harm public interests and civil elements. Some scholars have pointed out that "if the law explicitly pointed out the specific content of the law is invalid, then the corresponding law needs to clarify its nature is part of the effectiveness of management or in specific explanation, at the same time to harm the public interest to make the contract invalid clause defined or rules, the key premise is unable to clear and specific laws and regulations the invalidity of the contract rules are defined." That is to say, in the judicial process because the legislation is too abstract and cannot directly invoke, must be specific, the so-called value added,which judges grasp the spirit of legislation, value judgments abound, increase the uncertainty of the referee. The complexity of the social and public interests has change,let the judge’s law more difficult.As Deborah Stone said,"the public interest itself is a relatively blank field,each subject can be from their own perspective to explain it clearly, and" legislative link "not fine" may not only lead to the abuse of power, the results also easily lead to criticism from the public,damage the judicial justice the letter. On the surface,China’s contract law article fifty-second fourth judges seem to provide the basis for the legal. But the problem is whether the current legislation or judicial interpretations were not clearly defined, the type of harm public interests, civil behavior and the elements, thus making the judicial practice difficult: on the one hand, the connotation of public interests very ion and complexity, and is changing, too principle legislation that has great justice the uncertainty of "some sentence" phenomenon; on the other hand, invalid judge will damage the public interests of the contract, often leads to the interests of the parties affected, when questioned about and caused the public and the accused, the impact of judicial credibility.In view of this, this paper investigates extraterritorial legal system, basic principle and value of research into the meaning of public interest, and puts forward the type of setting, procedure improvement, guiding case release and enhance the judicial transparency system, provide more scientific and reasonable path for the judge law, in order to realize the referee properly, enhance public vision the letter.