Disgraceful Consideration Theory Principle

With the development of economy and society, the phenomenon of the "mistresses" is continually growing and spreading. The property rights cases (dotation and bequest to the cohabitor) caused by this phenomenon is not uncommon. The court usually adjudicates the dotation contract invalid for the reason of disobeying the public order and good customs.The question is:it is cohabiting behavior that breaks the law, while the dotation contract does not. Why it is invalid? This is very different to those relevant laws and regulations, jurisprudence, the spirit of law in France, Japan and Taiwan, as well as the case in the German Mistress Will Case, which demands judgement-making must be based on the content, motivation and purpose of a conduct.It is thought-provoking to our country that whether we should refer to the comparing case, and compare with the foreign cases to make the best judgement by making breakthroughs in the research method. Although the judicial authority has reached the consensus that the principles of Civil Law should be applied directly to the trial as the judicial principle, we still have mistakes in how to apply the abstract principles of the Civil Law to cases trials, and how to specify the public order and good customs. These two issues will be discussed in the paper. The writer believes that we should approch the issue from two perspectives:the standard of obviously disobeying the public order and good customs and constructing the jurisprudence system based on the type of comparing case.The purpose of this study is to better understand the relevant theories of public order and good customs and the applications in the "mistresses" property right cases by the comparison of Chinese and foreign jurisprudence, in hope of offering help to judicial authority in applying the moral traditions as the basic principle of the Civil Law.The article consists of five parts:The first part:Overview of public order and good customs. Brief public order and good morals principles of that part of the various laws, regulations, classification, meaning and function. And it is the heoretical basis as discussed below Judicial Application of the principle of public order and morals.The second part:The judicial application and problems of public order and morals. This section is the empirical research, Through research and analysis onLuzhou, Sichuan mistress wills case verdict to illustrate our judicial public order and good morals principle in the application of Misunderstanding.The third part:German Justice applicable to public order and morals. This section is the empirical research,too, Through research and analysis on the judgment of the German mistress wills case,in order to illustrate the public order and good morals in Germany specifically applicable to science, rationality,and Conducted a historical analysis of the reasons for this the results, I draw to look forward to our judicial.The forth part:Comparison of the German and Chinese judicial. This part is the competition of the china and german judgment on the judgment of style and research methods, in order to illustrate public order and good morals principles of justice,and apply to Germany superior in terms of legal theory or reasoning to build our own jurisprudence system to provide a reasonable basis.The fifth part:Suggestion of public order and good customs. This section is from the clear public order and good morals principles of standards and build their own contracting system both for some idea and suggestion.