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Limitations Of Public Order And Fine Custom On The Custom Of Becoming The Source Of Law

Posted on:2020-11-25Degree:MasterType:Thesis
Country:ChinaCandidate:M D JiangFull Text:PDF
GTID:2416330572994046Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Article 10 th of the General Civil Code,which entered into force on October 1,2017,recognizes custom as one of the bases for dealing with civil disputes.It cannot be ignored that this article not only sets out the premises for the application of custom,but also sets the threshold for access that is accustomed to becoming a source of lawthat is,"it must not be contrary to the customs and morality".That being the case,it is of great practical significance to explore how habits should face the limitation from "public Order and morality" on the "road" of becoming the source of law,and to correctly understand the general provisions of civil law and apply the habit of dealing with civil and commercial cases.The first part of the article takes the study and analysis of the judicial case into,and finds that there is chaos in the application of the principle of order and morality before the promulgation of the general provisions of civil law,and after the promulgation of the general provisions of civil law,the disorder of the judicial application of the law of order and morality in restricting custom has not decreased.If it is not reflected in the application of custom that good and good custom is the restriction of habit becoming the source of law,or that the restriction habit of good and good custom becomes the source of law and other concepts(such as the principle of good faith,the principle of fairness,etc.),the restriction habit becomes the source of law for mixing.The reason for this is that,on the one hand,there are many restrictions on the road of habit becoming the source of law,and the morality is often mixed with it,on the other hand,the concept of the morality and reason itself is vague and difficult to define,which also increases the difficulty of judges ' judgment and reasoning.The second part of the article combines the legitimacy of the restriction habit of good and good customs as the source of law,and probes into the problems caused by the above judicial application predicament in two aspects of legal system and legal value.On the one hand,the habit of becoming the source of law under the awakening of substantive rationality,but also brings some challenges to the integrity of the legal system,and the contradiction between the openness and integrity of the system needs to be reconciled with public order and good customs.But the dilemma of the restriction of public order and good custom leads to not only failing to play a harmonic role,but exacerbating the imbalance of the openness and integrity of the legal system.On the other hand,the value of private law autonomy embodied in custom cannot be magnified without restriction,while the public interest value behind good and reasonable customs can meet the need of restricting the autonomy of private law and limit the autonomy of private law to a reasonable limit.However,public order and morality limit the chaos and difficulties existing in the application of justice,which limits the limited play of this function,and may find it difficult to avoid the value crisis of the restriction of custom and vulgar customs,that is,to arouse the excessive invasion of private law autonomy,and to further become a vassal of public power in the personal field.The third part of the article aims at a series of chaos in the judicial application mentioned above,and explores the judicial application path of the restriction habit of morality and practice from two angles of entity and procedure.First of all,in the physical aspect,we can introduce the typed application of the law and morality and the application of the value supplement method.In addition,the introduction of the guiding case system to date or in the practice of restricting habits as a source of judicial application,for public order and customs restrictions to provide substantive institutional support.Secondly,in terms of procedure,there is no doubt whether the limitation of the application of the law of morality and morals,the application of the morality and practice to the custom as the source of the restriction,should be referred to the judge final confirmation,but the parties are not only able As a complement to this.
Keywords/Search Tags:Custom, Public Order and Fine Custom, Typed Application, Value Supplement Method
PDF Full Text Request
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