Research On The Application Of The Principle Of Public Order And Good Customs In Judicial Trials

This paper focuses on how to properly apply the principle of public order and good customs as one of the basic principles in the field of private law in China.Article 8 of China’s Civil Code stipulates that the civil subject engaged in civil activities shall not violate the law,public order and good customs.This principle plays a key role in making up for the shortcomings of the statute law,regulating the autonomy of private law and guiding social ideas.Specifically,the principle of public order and good custom refers to the general interests of the state and society,as well as the generally recognized ethical and moral standards.However,the principle of public order and good custom is a general clause in the civil law,and its application time and standard will vary with the time and space background and the objective situation of the case.Because of the above characteristics of the principle of public order and good custom,there are some difficulties in its application in specific cases.The principle of public order and good customs in China was established in the general principles of the civil law of the people’s Republic of China published in March 2017.There is a certain controversy about whether the expressions of "social morality" and "public interest" in the general principles of the civil law of the people’s Republic of China are the predecessor of the principle of public order and good customs.In recent years,the cases involving public order and good customs are increasing year by year,involving contracts,property rights,marriage and family.However,there are many problems in a large number of judicial documents,such as the arbitrary application of the principle of public order and good customs,the confusion with the application of the principle of good faith,and different judgments on similar cases.This paper is divided into five parts:The first part is the introduction,through the combination of specific cases and the relevant data of the application of the principle of public order and good customs in China’s judicial documents,this paper roughly combs the theme of this paper,and briefly expounds the research background,research significance and research status at home and abroad.At the same time,it briefly introduces the research ideas,research methods,research deficiencies and innovation of this paper.The second part is an overview of the theory of public order and good custom,based on the views of relevant scholars,a more macro introduction of the connotation of the principle of public order and good custom and its functions.The third part is the improper application of the principle of public order and good customs in the judicial trial.Combined with the relevant typical cases,this part puts forward four problems in the application of the principle of public order and good customs in China’s judicial practice.The fourth part is the analysis of the causes of the improper application of the principle of public order and good customs in the judicial trial.This part aims to analyze the internal causes of the above four problems one by one.The fifth part is the judicial approach of the reasonable application of the principle of public order and good custom in judicial trial.Based on the analysis of the problems,the article 8 of the civil code "the principle of public order and good custom" is concreted.