Research On The Functions Of Public Order And Good Custom In Judicial Judgment

"Public order and good customs" has always been regarded as a basic principle of civil law,which has important functions such as making up for the defects of civil law itself,correcting the deviation of formal justice and realizing substantive justice.At the same time,public order and good customs is also a universal principle in the legal system and is greatly favored in judicial judgment.However,the phenomenon of non-standard application of public order and good custom in judicial judgment is constantly happening,which leads to its functions being blocked.Exploring the functions of public order and good custom,clarifying the functions orientation and boundary of public order and good custom,has profound guiding significance for standardizing the application of public order and good custom in judicial judgment,and can also better promote public order and good custom to play its due functions.The first step is to study the functions of public order and good custom in judicature and clarify its connotation and nature.The first chapter expounds the double connotation and double nature of public order and good custom from the connotation and nature of public order and good custom.First of all,public order and good customs have dual connotations of public order and good customs.Secondly,the special legislative mode in which the general provisions and the specific provisions of the Civil Code of China stipulate the public order and good customs respectively determines that the public order and good customs in the civil law of China have the dual nature of legal principles and legal rules.The second section analyzes the status quo,predicament and reasons of the application of public order and good custom in judicial judgment.In order to change the chaos of judicial application of public order and good customs and make its functions better play,it is necessary to explore how to correctly apply the terms of public order and good customs in judicial practice from the perspective of functions.The second chapter discusses the normative functions of public order and good custom.The normative functions of public order and good custom in judicial judgment are restricted function and induced function.The function of restriction is divided into the function of restriction of civil activities and the function of restriction of customary application.First,civil activities should be bounded by following public order and good customs.Public order and good customs are mainly restricted by three ways: direct provisions,making up loopholes in rules and excluding the application of rules.At the same time,the limitation function of public order and good custom is modest and should be in a secondary and complementary position in the order of private law.Second,public order and good customs have the function of restricting the application of habits.Only after passing the test of public order and good customs can habits be used as the basis of judicial judgment.The restriction function of public order and good custom should conform to the spirit of current civil law and the principles of regionalism and times.The leading function of public order and good customs is divided into the leading function of constitutional value order and the leading function of good moral norms.The core of the order of constitutional value is the "objective order of value" which leads to the formation of the system of basic rights.Starting from the judicial practice of our country,this paper holds that the intrinsic value order of the system of fundamental rights can be realized in the constitutional interpretation of the articles of public order and good custom.At the same time,public order and good customs also bring sufficient moral resources for judicial judgment.In the reasoning process of judicial judgment,the judge introduces the part of morality which is consistent with the inherent value of law into the legal order through the principle of public order and good custom,and takes the rules of public order and good custom as the basis of judgment.Thus,the "referral" function of public order and good custom is realized,and the rule of law and the rule of virtue are combined.Chapter three discusses the social functions of public order and good customs.Public order and good customs come from and act on society,and its social functions should be considered in the process of adjudication.This paper divides the social functions of public order and good customs into the function of changing customs and conformity.On the one hand,the function of changing public order and good customs is brought into play through the guidance and enlightenment of specific judicial cases,and on the other hand,it is guaranteed by legal compulsion.Public order and good customs will be consistent with the inherent value of the law of morality and custom as the basis of judgment,abandon the bad customs and bad customs that violate the legal value concept,so that the judge can not only make the case has grounds,but also can purify the social atmosphere to achieve the effect of changing the customs.Public order and good customs also have the function of integration.According to Smender’s integration theory,"integration" is the process of continuous integration of citizens in the country,and such integration is not at the level of assumed or historical social contract,but as the attribution and spiritual cohesion experience of citizens.Public order and good customs are essential integration contents,which guarantee the realization of basic rights and general moral requirements in the community life,strengthen the spiritual consensus of the community,and promote the realization of the goal of harmony,which not only conform to the trend of integration,but also further strengthen the cohesion of the community.The integration function of public order and good customs focuses on the function of promoting socialist core values,which is of great significance to enhancing national cultural identity and the centripetal force of the Chinese nation.The fourth chapter discusses the boundary of the functions of public order and good customs.In order to avoid excessive intrusion of public order and good custom on autonomy of private law,it is necessary to delimit applicable boundaries.There are mainly two kinds of boundaries in the judicial application of public order and good customs.One is the internal boundary,which is the limitation from the connotation of public order and good customs.The boundary problem of maintaining public order is concentrated in the limit of protecting basic rights.The boundary of interfering with basic rights in violation of public order depends on the specific degree of protecting the interests of the state,the collective and the society as well as the legal freedom and rights of others.Meanwhile,public order and good customs are also the basic principles of civil law and should be restricted by the order of civil law itself.The boundary of the violation of good customs should be limited to the violation of the minimum moral,and its boundary is also adjusted with the development trend of the society and the continuous evolution of its own connotation.The second is the applicable boundary,that is,the applicable premise and the limitation of the scope of application.The application premise of public order and good customs is mainly reflected in the application rules,while the special boundary of the application of public order and good customs is mainly reflected in the application boundary of public law cases.In criminal cases,the principle of legality of crime and punishment and the protection of legal interests should be the premise,and the public order and good customs should play a role as the "weak adjustment supplementary principle".In administrative cases,the application of public interest should be the main,and the application of public order and good customs should only be a supplement to special cases.Chapter five focuses on the correct application of public order and good custom in judicial adjudication and tries to construct the test standard for the effective display of public order and good custom functions.The first level test standard comes from the normative functional boundary of public order and good custom,and the test points are mainly the test of the scope of application,the test of the application premise and the test of the connotation boundary.The second test standard comes from the standard of the application of the public order and good custom clause,that is,the standard of the application of the public order and good custom clause in the judicial judgment.The third level test standard comes from the social functions of public order and good customs,which is to test the substantial social effect produced by judicial judgment.The social functions of public order and good customs depends on rigorous reasoning and argumentation.In the specific adjudication process,judges should integrate the excellent traditional culture of The Chinese nation and socialist core values into specific adjudication through rich and detailed reasoning,and take the "acceptability" of the public as the standard,so as to improve the public recognition of the adjudication and create an environment of good law and governance.The first level of inspection standard is to solve the problem of whether it can be applied,the second level of inspection standard is to solve the problem of whether the application of judicial judgment is standard,and the third level of inspection standard is to solve the problem of whether argumentation is sufficient and whether it can produce good social effects after application.This paper proposes three ways to optimize the function of public order and good custom in judicial adjudication.One is to strengthen the research on the typing of local cases,and at the same time,mature judicial cases should be included in the typing framework,so as to perfect the typing system of public order and good custom.Based on the guiding cases issued by the Supreme People’s Court and the concluded judgment documents concerning "public order and good customs",this paper summarizes the specific types of cases violating public order and good customs in China’s judicial practice.The second is to strengthen the demonstration of guiding cases.The selection and compilation of guiding cases should focus on the standardization of application,the integrity of reasoning,the integration of socialist core values,and the differences of cases.Third,the case evaluation mechanism should be improved.The recognition of public order and good customs should be based on the public’s cognition,and the final judgment of public order and good customs violation should be based on the "acceptability" of the public.Through public opinion feedback mechanism and internal evaluation mechanism of the legal system,the actual effect of public order and good customs cases can be tested,and public opinion guarantee and relatively objective standards can be provided for judges to apply public order and good customs cases in the future.