Study On The Civil Judicial Application Of The Principle Of Public Order And Morality

The principle of public order and decency is one of the important principles of modern civil law,which has the function of safeguarding the public interest and general moral concept of society,making up for the inadequacy of legal provisions,moderately safeguarding the discretion of judges,and realizing the limitation of private law autonomy,and is an important bridge connecting civil law norms and social values.From the General Principles of Civil Law to the Civil Code,the principle of public order and morality is stipulated,but as an indefinite concept,its high abstraction,ambiguity,subjective value and territoriality,the content covered by it is in fact impossible to be exhausted,which also causes difficulties in the application of the principle in judicial practice.In practice,the application of the principle of public order and good faith mainly has the following problems: first,the application of the principle of public order and good faith has the basis of legal norms but escapes to the general provisions,second,the application of the principle of public order and good faith only as a tool to enhance the persuasive power of the judge,third,there is confusion with the application of the principle of honesty and credit,fourth,different results of similar cases.The existence of these problems jeopardizes the stability of the law,undermines judicial authority,and reduces judicial credibility.The reason for this is that in the process of judicial application,the adjudicators are not clear about the conditions of application of the principle of public order and morality,and do not clearly distinguish the general moral standards from the principle of public order and morality,resulting in the legalization of morality;at the same time,they do not follow the principle of exhaustive rules,resulting in the abuse of the principle and the "escape to the general provisions".The adjudicators did not understand the function of applying the principle of public order and morality,which led to the failure of the principle of public order and morality to play its true value.In addition,the overlap between the principle of public order and good faith and the principle of good faith in terms of concept,scope of application and value and function makes them confused in the application of civil justice.What is more noteworthy is that,due to the lack of in-depth research on the typology of the principle of public order and good faith,the lack of typology in practice has led to the problem of different verdicts in similar cases.In view of the application of the principle of public order and decency in civil justice in China,based on the analysis of the jurisprudence of the principle of public order and decency,we propose to improve the application of the principle of public order and decency in civil justice in China by drawing on the relevant provisions of overseas legislation on the principle of public order and decency and absorbing the typology application of the principle of public order and decency from overseas.Firstly,to clarify the conditions of application of the principle of public order and good morals,which is reflected in two aspects: to clarify the subordination of the principle of public order and good morals to specific legal rules,and to distinguish the boundary between general moral standards and laws.Secondly,to strengthen the standardized application of the principle of public order and decency,to strengthen the doctrinal evidence of the application of the principle of public order and decency,and to increase the supervision of the application of the principle of public order and decency.Next,the application of the principle of honesty and credit should be delineated in terms of the legal interests protected by the two principles,the means of regulation and the legal consequences.Finally,the construction of a typology application mechanism,the construction of which should take into account the time factor and the geographical factor,and the construction plan and suggestions for the typology application mechanism,as well as the establishment of a resource base of guidance cases.