Research On The Application Of The Principle Of Public Order And Good Custom In The Dispute Of Legacy

In recent years,the concept of will is gradually accepted by the public,and many cases of bequest dispute in judicial practice have aroused widespread public concern and heated discussion.From the case of the bequest of the Luzhou city in Sichuan province in 2001,to the case of "Five million house-bearers" and "40 million house-bearers living together for 17 years"in 2021,a series of cases have caused enormous social repercussions,the dispute on whether the bequeathing of property to a "third party" who has a cohabitation relationship outside marriage is invalid because of the violation of public order and good custom has not been properly resolved,how to apply the principle of public order and good custom to the settlement of bequest dispute remains to be further clarified and explored.By searching the key words in China judicial document network,we find that there are different judgments in the cases of legacy disputes solved by the principle of public order and good custom.Through the empirical research and statistical analysis of the retrieved sample cases,the problems in judicial application are summarized as follows:First,on the basis of facts,different courts have different criteria for determining whether there is a cohabitation relationship outside marriage between the decedent and the legatee.Secondly,in terms of legal basis,the different courts do not have the same standard basis for the application of the judgment,it mainly includes three modes:applying the principle of public order and good custom,applying the principle of freedom of testament,applying the principle of public order and good custom and other legal rules.Thirdly,in terms of the result of judgment,the standard of judgment in different courts for similar cases is not uniform.Some court judges hold that bequests are invalid,while others hold that bequests are valid.To solve the above problems,firstly,we should start from the socialist core values,and clarify the connotation and extension of public order and good custom under the current environment.Secondly,the application conflict between the principle of public order and good custom and the principle of freedom of legacy is solved by the method of interest measurement.With the guidance of socialist core values,interest measurement and value judgment are carried out to make it clear that the social public interest,the interest of marriage and family system should take precedence over the interest measurement result of personal property protection in this kind of legacy dispute.Finally,in view of the specific application problems existing in the current judicial practice,specific suggestions are put forward from the following three perspectives:first,strengthen the application of case retrieval,promote the release of guiding cases,and gradually unify the judgment standards of similar legacy disputes;Second,clarify the high probability of proof standard requirements,so as to clarify whether there is a dispute between the legatee and legatee cohabitation of this fact.Thirdly,it clarifies the distinction between general provisions and basic provisions of the principle of public order and good custom,applies Article 143 and Article 153 of the Civil Code as the specific legal basis,and applies the standard of uniform judgment basis.