On The Judicial Application Of The Principle Of Public Order And Good Customs

The legal provisions applicable to the judicial application of the principles of public order and good customs include Articles 7,55 and 58 of the General Principles of the Civil Law,Articles 8,10,143 and 153 of the General Provisions of the Civil Law,and Article 2 of the Tort Liability Law,Articles 7 and52 of the Contract Law and Article 7 of the Property Law.The legal provisions of the principle of public order and good custom should not be contrary to public order and good customs from respecting social morality,not damaging social public interests,not disturbing social economic order.There are many judicial application cases for the principle of public order and good customs,involving all aspects of civil activities.However,due to the ambiguity of the principle of good order and the principle,and the inappropriate understanding of the principle by the referee,the principle of the application of the standard is uncertain and the application method is imperfect in the judicial application process.Problems arising from the uncertainty of the applicable standards include inappropriate application in judicial practice,the inability of the referee to apply,and different judgments in the case of application.The reason for the imperfect application method is the lack of uniform judicial guidance and the fact that the referee is unclear when applicable.The above problems can be solved by establishing uniform applicable standards,strengthening the unified guidance of judicial application,and improving the judicial application of the principle of public order and good customs.A unified applicable standard can be defined by both objective and subjective aspects,that is,when the behavior is established and where it occurs,and the external performance of the behavior is the standard.The unified guidance for judicial application includes the establishment of a libraryof judicially applicable guidance cases and the introduction of guidelines for the application of justice.The interpretation of the judicial application of the principle of perfecting public order and good customs includes the application of jurors to select diversification,the judicial hearing system and the establishment of an expert consultation system.