| The principle of public order and good custom can be traced back to Roman law.In Roman law,the public order refers to the security of the state and the fundamental interests of the people.The good custom is the general moral code of the people,the meaning of the two is broad,and with the change of time is different,not invariable.Acts that violate public order and good custom are null and void in law.In modern times,civil legislation of many countries and regions began to explicitly stipulate this principle.And in civil legislation in our country about "" disgraceful consideration the use of the concept of time is relatively late,after the founding of new China,our country started in 1986 the general principles of the civil law" regulation,begin to use the"public interest",the concept of "social morality",and ""disgraceful consideration in commenting on the concept of the nature and function of the same.With the promulgation and implementation of the Civil Code,eight of them mentioned the principle of public order and good customs."Public order and good customs" is no longer just a subjective moral judgment in people’s heart,but an important basis for judging the effectiveness of civil acts through legislative means.But disgraceful consideration about the definition of the concept,with no clear explanation legislation in our country,and it is also unsatisfactory,although a lot of other countries on the legislative norms in different degrees using the concept of disgraceful consideration,but also did not make any specific to its definition,the more there is no law to be further elaborated,but simply as a blank terms for the judge to explain.As a legal principle of moral legalization and a concept of uncertainty,the principle of public order and good custom has been appearing in the field of law as a highly abstract and even vague concept.Even with its original vagueness and uncertainty,its application in judicial practice is still more and more.In view of this,this article mainly USES SPSS data analysis,correlation analysis and case study method,through carding analysis between data from China,the written judgment,access to the Supreme People’s Court on a disgraceful consideration "of the word" a total of 313 articles written judgment,sums up the principles of disgraceful consideration mainly in three aspects,including civil,administrative and other aspects.Among them,the civil aspect mainly focuses on the contract field,related trademark field,daily "weddings and funerals" and "traditional customs";The word "public order and good custom" appeared in the field of administrative behavior.The other aspects include the field of case trial,national macro policies and interests ",and the characteristics of the above six judicial applications are obtained.And for the Supreme People’s Court of China for the case of public order and good customs adjudication documents for the year,region,case type,trial procedure,subject,reasoning methods,meaning of the type of indicators such as correlation analysis,coupled with the classic case for explanation.Through the integrated use of a variety of methods to summarize the principle of disgraceful consideration the status and problems in the judicial practice to apply,discovered the principle of disgraceful consideration for increasing the number of relevant judicial documents,scope expands unceasingly,but for the reason,put forward "public order as" the way is still unclear,abuse phenomenon is serious,it as a universal principle.Disgraceful consideration from the principle of legal status,and social development under the complexity and vast space was analyzed in our country,from the establishment guidelines,promote typed research,clarify the general moral habits and enhance the level of judges to judge for perfect principle disgraceful consideration in the process of our country judicial application in particular and legitimacy,to make the court referee to adapt to the changes of social economic and ethical and moral values. |
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