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

The principle of public order and good customs has been widely used in judicial practice,but due to factors such as unclear definition,inconsistent standards,and incorrect application,the application of this principle in judicial trials has resulted in uncertainty in the outcome of the judgment.In order to ensure that the principle of public order and good customs is better applicable to judicial practice,it is necessary to overcome the uncertainty of the principle of public order and good customs,find out its application dilemma,analyze the reasons for the application dilemma,clarify its judgment criteria,and enhance the certainty of the application in the discussion.The specific ways in which the principle of public order and good customs is applied in our judicial practice.Following this line of thinking,this article uses literature research,comparative analysis and empirical analysis to study the application of the principle of public order and good customs from the basic theory,and tries to put forward some practical suggestions on the application of this principle.The first part of the article is an overview of the basic theory of the principle of public order and good customs.First of all,we analyze the concept,classify the different provisions of public order and good customs in different countries and regions,distinguish the connotation of public order and good customs,and analyze the relationship between them.In this paper,the basic characteristics and value function of the principle of public order and good customs are discussed in detail.In the second part of this paper,we try to find out the difficulties of applying the principle of public order and good custom in judicial practice by analyzing the judgment of civil cases involving the principle of public order and good custom.The author concludes that there are four categories: the definition is not clear,the standard is not uniform,mixed with other principles,and escapes to the general clause.The third part is the analysis of the causes of the difficulties in the application of the principle of public order and good customs.Firstly,this paper points out that there are differences in their understanding due to their own fuzziness.Secondly,there is not clear understanding of the boundary between the basic principles of civil law,and there is a mixed use between the principle of public order and good customs and the principle of fairness and good faith.Thirdly,the deviation of judge’s understanding of the function of public order and good custom,and the lack of understanding of the precondition and scene of public order and good custom are also the important reasons for the dilemma.In addition,the lack of the control mechanism of judge’s discretion,the lack of legitimacy argument,it is difficult to produce convincing judgment results.The fourth part is based on the previous theoretical analysis,from the construction of the type of applicable mechanism,clear criteria for judgment,the application of legal principles of general methods and strengthen the application of judicial protection,and so on,to explore how to enhance the public order goodcustom in the application of certainty,in order to expect it to play a greater role in judicial practice.