The Criterion Of Public Order And Moral Criteria In Judicial Application

The principle of public order and moral criteria is one of the basic principles of civil law,including "public order" and "good customs".This principle plays an important role in restricting the private law autonomy of civil subjects and maintaining social morality.The application of the principle also gives the judge a certain discretion to make up for the shortcomings of the existing legal norms and to overcome the limitations of specific legal norms.At the same time,the principle of public order and moral criteria is the bridge that involving the public law in private law autonomy,which has a pivotal position in civil law.Before the promulgation of the General Rules of Civil Law,there is no definite provision of the principle of public order and moral criteria in the General Principles of Civil Law,the Contract Law and some other civil laws.It is argued that Article 7 of the General Principles of Civil Law and Article 52 of the Contract Law are related to the provisions of "public order and moral criteria".In recent years,there are more and more applications of the principles of public order and moral criteria in the practice of trial and it has been involved in many fields such as tort,improper profit,civil rights and so on.However,due to the lack of clear norms and guidance,the emergence of chaos arises in the process of invoking the principle of public order and moral criteria in judicial practice,such as the undefined concept of the principle of public order and moral criteria,the application of non-standard,the mixed use of the principle of honesty and credibility and the principle of public order and moral criteria,and so on,which triggering the author's thinking.This article is divided into five parts.The first part is referring to two typical cases to lead to the question.The second part is about the outline of the principle of public order and moral criteria,and the principle of public order and moral criteria in the field of comparative law.The third part is the typological study of the principles of public order and moral criteria and the author has initially established the research model.The fourth part is the summary of the problems existing in the application of public order and moral criteria in our country,putting forward some suggestions accordingly.At last,as the promulgation of the General Principles of Civil Law is about to be implemented,the formal principles of public order and moral criteria are established.With the changing social development,the author puts forward the prospect of this principle.