Study On Civil Judicial Adjudication Of Public Order And Good Custom

With the introduction of the principle of public order and good custom into legal norms,the legal status of the principle of public order and good custom as a basic principle of modern civil law has been formally established,and the main research direction of the academic circle will shift from the Angle of principle legislation to the study of its judicial application,and the relevant theoretical research is constantly advancing.Judging from the "Jiang ge case" that has attracted wide attention from all walks of life in recent years,the topic of public order and good customs has once again caused extensive disputes and discussions in the academic circle and the public,and the thinking on public order and good customs triggered by the case has been concerned by the academic circle again.By sorting out the connotation and significance of the principle of public order and good custom,it is found that the connotation of the principle of public order and good custom is uncertain,and then attempts to delve deeply into the normative basis,moral basis and value basis established by the principle of public order and good custom from the perspective of legal philosophy,in order to further understand the connotation of the principle of public order and good custom,and open up a feasible path for the application of the principle.On the basis of the theoretical research of legalism and consequentialism judgment methods in recent years,the academic circle has started to think about the judicial application of public order and good customs.From the judgment represented by the "Jiang Ge case",it is not difficult to find that under the judicial syllogism model,judges have implied various considerations of consequences.This will help to understand the conflict between legalism and consequentialism and the difficulties of judicial practice in the current social background.After analyzing the results from multiple perspectives such as the basis of judgment,we can draw a conclusion that the consequentialist judgment method is concealed and applied.Although in some difficult cases,this judgment method makes the final judgment achieve a satisfactory social effect,it destroys the principle of "taking the law as the criterion" of judges to a certain extent,and appropriate measures should be taken to restrict it in judicial practice.It is necessary to explore and study in theory.From the three directions of the concept,mode and elements of judicial adjudication,this paper focuses on analyzing the methods and paths of perfecting the concept of judicial adjudication and optimizing the mode of argumentation and reasoning,and determines the application of the principle of public order and good custom in judicial practice from the perspective of normative consequentialism.Then,while following the rule-based legal doctrine thinking orientation,To realize the unity of "legal effect" and "social effect" to the maximum extent.