A Genre Study On The Application Of The Principle Of Public Order And Good Morals In Family Trials In China

Public order and good custom,abbreviations of public order and the customs of goodness,is a basic principle of modern civil law.It played an important role in maintaining the general order and morality of the country and society,remedying legal loopholes and overcoming the defects of statutory law.The 8th Article of the General Principles of the Civil Law of the People’s Republic of China,which was implemented on October 1,2017,established the principle of public order and good customs.It is not uncommon for the principle of public order and good customs to be applied in justice,especially because of the special ethical nature of family cases.Although it helps judges solve legal problems to a great extent,the problems highlighted in the application process and how to solve them are of more research value.By sorting out the cases of judgment,we can find that there are some problems in the family trial cases that apply the principle of good public order in our current judicial activities,such as different judgments in the same case,overstepping the law into "moral judgment" and only strengthening the reasoning tool of court judgment.After exploring the basic theories of the principle of good order and general social morality,such as the connotation,legislative manifestation and function,the root causes of the disorder are high abstraction of concepts and fuzziness of applicable conditions of good order and custom.In order to solve this problem of abstraction and fuzziness,we can draw lessons from the typological analysis method which has been affirmed by many scholars in many countries.From this point of view,this paper analyses the existing types of public order and good custom principles in China were analyzed in this paper,and we find that the existing types can not meet the needs of family trial.On the basis of referring to the existing types and combining with the analysis of 236 sample judgments of family cases,according to certain processes and evaluation viewpoints of the same significance,the consistency between types and cases,and the typological criteria for the reproducibility of evaluation objects,7 behavior type(violation of sexual morality,violation of folk customs and ethics,endangerment of family relations,no maintenance obligation,separation of family and property,deterrence of visitation guardianship and non-marital cohabitation or marriage contract)were summarized.and the constitutive elements and legal effect of each type was analyzed.These types have the value and function of promoting the concretization of the principle of public order and good customs,restricting judges’ abuse of discretion and realizing the normative justice of family cases.In order to enhance the standardization of the application of the principle of public order and good customs in family trial,it is necessary to establish the guiding position of the principle of public order and good customs,determine the criteria for the application of typology,and ensure the realization of the requirements of the value supplement law.