On The Application Of The Principle Of Public Order And Good Customs In Civil Judgment

As a basic principle of China’s civil law,the principle of public order and good customs builds a bridge between law and order and morality."The richness of its connotation and the uncertainty of its extension make it have the functions of remedying legal loopholes,restricting the exercise of rights and reviewing the sources of law.The Civil Code of the People ’s Republic of China,which entered into force on January 1,2021,retains the provisions of the General Principles of Civil Law on public order and good customs.Since 2013,the number of civil judicial cases applying the principle of public order and good customs has been increasing rapidly,In 2021,the number of civil judgment documents containing " public order and good customs " is close to 50,000,and four-fifths of the cases are concentrated in the cases of " contract,negotiorum gestio,unjust enrichment dispute." This paper uses literature analysis method,comparative analysis method and case analysis method to analyze 142 referee cases in recent years from 2019 to 2022,it is found that the current civil judicial application of public order and good customs presents a wide range of application,involving a large number of cases,becoming a universal referee reason,as the only referee basis and other applicable status.For the above judicial application status,it is found that the application of public order and good customs has the following shortcomings : Firstly,the applicable standards of the principle of public order and good customs are not uniform;secondly,the application of the principle of public order and good customs presents the phenomenon of escaping to the general clause;Finally,most cases applying the principle of public order and good customs have not fully demonstrated public order and good customs.The above deficiencies will undermine the authority of the law and the credibility of the judiciary,and then endanger the stability of the law.Therefore,in view of the above deficiencies,this paper puts forward the following ways to regulate the application of the principle of public order and good customs in civil justice : the first is necessary to clarify the application requirements of the principle of public order and good customs;the second is to strengthen the argument of the reason part of the judgment document;the third is to summarize the cases that can be applied to the principle of public order and good customs,based on the existing cases,this paper summarizes four types of cases with high frequency of judicial practice and stable judgment trend;the fourth is that judges can use the value supplement method to study and judge cases.