A Study On Application Of Principle Of Public Order And Good Social Customs In Civil Judicature

The principle of public order and good social customs is one of the basic legal principles governing modern civil law system and it occupies an important position in the civil law system of continental law system.The principle of public order and good social customs is composed of “public order” and “good social customs”.As a basic principle of civil law,the principle of public order and good social customs is characterized by fuzziness,abstractness and connotation uncertainty,which makes it very flexible,and allows it to play an important role in filling the loopholes of statute laws and pursuing the justice of individual cases;thus,it is regarded as the spiritual cornerstone of modern civil law.On March 15,2017,the National People's Congress adopted the General Rules of the Civil Law of the People's Republic of China,and the public order and good social customs were defined in the legal description of basic principles for the first time in Article VIII.Before the promulgation of the general rules,Article 7 of Basic Principles of General Principles of the Civil Law of the People's Republic,Article 7 of Basic Principles of Property Law of the People's Republic of China,Article 7 of General Provisions of Contract Law of the People's Republic of China and Article 52 of Contract Effectiveness are all legal provisions on the principle of public order and good social customs.Since 2013,the number of civil judicial cases on the principle of public order and good social customs has increased rapidly and many problems have appeared in the application of civil judicature.The author divides them into four categories after summary: confusion between general morality and principle of public order and good social customs,escape to general terms,arbitrariness in applying the principle of public order and good social customs and lack of reasoning or argument in the judgment documents.Aiming at the above problems,the author of this paper uses the methods of literature analysis,comparative analysis,empirical analysis and case analysis to sort out the regulations of the countries in the continental law system and anglo-american law system on the principle of public order and good social customs and the definitions of different doctrines and scholars for the principle of public order and good social customs based on the basic theoretical framework.Through the above sorting,combined with the studies on the value function of principle of public order and good social customs,the author outlines the definition of the principle of public order and good social customs,deepens the understanding of its connotation and spirit and gets a better knowledge of their relationship.Under the support of theoretical basis,the author elaborates the above four problems in the application of the principle of public order and good social customs in civil judicature with specific cases,and points out that the existence of these problems will undermine the stability of law and damage the legal authority and judicial credibility.In the analysis of causes,the author first starts from the limitation of the principle of public order and good social customs,and points out that it is easily confused with general morality due to its fuzziness and natural ethics,so it is difficult for the judges to grasp in the value judgment.Secondly,the deviation of judges' understanding of the theory of public order and good social customs is also an important reason.The frequent escape to general terms in judicial judgment is caused by the deviation of judges' understanding of the application field and premise conditions of the principle of public order and good social customs.Thirdly,the lack of judicial procedure control system leads to the failure to control the discretionary power of judges,which is another important reason that should be concerned.The supervision without procedure will inevitably lead to the abuse of power.The arbitrariness of judges in applying the principle of public order and good social customs is largely related to the lack of judicial procedure control system.In addition,lack of standard judicial argumentation methods is one of the reasons that can not be ignored.The principle of public order and good social customs can only be specifically applied through the value filling of judges,and the process of value filling is the process of reasoning and demonstrating the principle of public order and good social customs.The sufficient and standard judicial argumentation can not only show the judge's judgment thoughts,but also convince the public,so as to improve the recognition of judgment and the compliance with law.Finally,based on the above problems and reasons,the author puts forward several suggestions for solution,including constructing the generic application mechanism of principle of public order and good social customs,introducing the value judgment method,improving the procedure control mechanism of judges' discretionary power and strengthening the judicial argumentation of judgment documents.