Research On The Identification Of Principles Of Public Order And Good Custom In China Based On The Judicial Cases

After the "Luzhou kept woman case" in 2001,,the application of public order and good customs has attracted wide attention from the society and aroused a research upsurge in the academic world.In 2017,article 8 of the general provisions of the civil law of the People's Republic of China formally stipulated public order and good custom,opening a new chapter in the judicial application of public order and good custom.After that,the number of cases in which public order and good custom are used as the basis for judgment in judicial practice has been increasing.In 2018 alone,there were as many as 22,128 cases in which public order and good custom were mentioned in the judgment.At the same time,the unreasonable application of public order and good custom in some cases has resulted in different judgments of the same case,thus affecting the authority of China's judicial adjudication.To solve the above problems,this article selects between 2017 and 2019,the part of the case in the net open in China the written judgment as the research sample,comb a disgraceful consideration of our country judicial cognizance present situation and existing problems,and to analyze the causes of these problems,then reference the foreign civil law countries of judicial precedent and disgraceful consideration that way,to find,for our country reference finally put forward Suggestions of perfecting our country's judicial cognizance disgraceful consideration.The article is mainly divided into five parts:The first part mainly introduces the research background,research significance and current research status at home and abroad,and expounds the main research methods,innovation points and shortcomings of this paper.The second part uses empirical analysis to analyze the status quo of public order and good custom in China's judicial system.Taking the cases of public order and good custom in China's judicial document network as samples,this paper analyzes the causes of the case,the level of trial,the application basis,the result of the judgment,and the application field of public order and good custom,and shows the current situation of judicial determination of public order and good custom in China.The third part mainly introduces the problems and causes in the judicial confirmation of public order and good custom in China.Through the analysis of judicial precedent samples,it can be found that in the judicial confirmation of public order and good custom in China,there exist the phenomena of different judgments in the same case,the tendency of general moral standards to replace the public order and good custom,as well as the unreasonable phenomena of mixed use and abuse in the judicial confirmation of public order and good custom,thus affecting the judicial authority.The reasons for these problems mainly include the unclear object of judging whether the behavior violates the public order and good custom,the lack of judges' full understanding of the application conditions of the principles of public order and good custom,and the difference of judges' value judgment.In the fourth part,the author makes a comparative study of the good customs in order to find some references.This section in addition to domestic grandpa sequence as introduces the legislation situation,also on the domestic grandpa sequence analysis as judicial precedent,pick out a typical wedding gift property of a third party within the case,decide whether trademark violation cases and disgraceful consideration haunted case,request another's help behavior,case study,analysis of the differences,and find available for reference in our country.At the same time,the paper introduces the method of classification of public order and good custom and analyzes the feasibility of its application in China,so as to provide a reasonable basis for the improvement of Suggestions in the following paper.The fifth part puts forward some Suggestions on how to identify the public order and good custom in judicial practice.First,make clear the judgment object of public order and good custom;Secondly,it is suggested to typify the behaviors violating the public order and good customs,so as to increase the operability of the public order and good customs.Thirdly,it is suggested to strengthen the understanding of the applicable conditions of public order and good customs and their characteristics of timeliness,regionalism and modesty.It is hoped that these Suggestions will help change the status quo of public order and good custom.