Analysis Of Public Order And Good Custom Principles From The Perspective Of Administrative Law

Public order and good customs,as the "empire clause" in the field of private law,set the boundary for the exercise of citizens' private rights.However,its development shows a trend of continuous expansion.In 2014,the Standing Committee of the National People's Congress promulgated a legislative interpretation of the “Bei Yan yunyi”case.Citizen names must not violate public order and customs.The case involved a game between the administrative power of the public security organs and the right of citizens' names.At the legislative level,public order and good customs have been directly or indirectly incorporated into the law;At the level of administrative law enforcement,administrative power should be strictly controlled.At the judicial level,the court,as the last line of defense for upholding the rule of law,needs further research and exploration on how to apply this principle.This article consists of six parts.The introduction part expounds the expansion and development of the principle of public order and good customs in the field of administrative law,as well as the research methods and research ideas of this article.The first chapter unfolds from a theoretical perspective.When judging what is public order and good customs,it should follow the five standards of the subject's publicity,behavior's vulgarity,legal necessity,limited retrospectiveness and motivation's accountability.Public order and good customs have commonalities and differences with public interests.Its development in the field of administrative law is irreplaceable.The second chapter takes the legal text as the research object,summarizes the legislative expressions of this principle in the 363 normative texts,and the legislativetexts clearly written in the "public order and good customs" clause are of lower rank.The higher-level methods mostly adopt indirect expressions,including "national excellent traditional culture","social morality","public order",etc.Setting this principle in legislation implements the constitutional provisions,grants the basis for the exercise of public power,delimits the exercise of private power,and also provides guidance for court decisions.The problem of this principle at the normative level is manifested in the confusing legislative expressions and the unclear applicable standards,which in turn paves the way for the writing of Chapter 5.The third chapter starts from the level of administrative law enforcement.This principle has been universally applied in the process of administrative management.Administrative agencies apply this principle by issuing regulatory documents,making administrative penalties,administrative confirmation or non-confirmation,and administrative guidance.It is applied to administrative law enforcement not only to give vitality to legal regulations,but also to accumulate experience for legislative improvement.But there are still flaws in excessive discretion and explanation reasons.The fourth chapter takes the public administrative trial as the analysis object.Through screening,222 sample documents were obtained,and typical cases in the field of trademarks,advertisements and name registration were deeply divided,and the courts' application of the principle and the recognition criteria were summarized.The court effectively protected the public interest by applying this principle,and had significant effects in guiding the actions of relatives and supervising the administrative organs,and also provided guidance for legislative improvement.But there is still a lack of unclear connotation and excessive protection.Chapter 5 is the perfect proposal.In terms of legislation,raise the legislative level of this principle and revise relevant legal norms.In law enforcement,we will issue detailed benchmarks or normative documents to improve internal supervision of law enforcement procedures.Judicially,it proposes operable methods such as introducing democratic participation procedures,improving judicial review methods,enhancing the guidance and exploration of judicial judgments,and looks forward to contributing little to the further development of this principle in the field of administrative law.