Study On The Judicial Application Of The Principle Of Public Order And Conscience In The Field Of Marriage And Family

The principle of public order and good customs,collectively known as public order and good customs,is one of the basic principles of modern civil law,which is used to fill legal gaps and fill legal loopholes.on October 1,2017,Article 8 of the General Principles of Civil Law of the People’s Republic of China formally established the principle of public order and good customs.The application of the principle of public order and good morals in judicial activities,especially in the field of marriage and family,is even more abundant,but nowadays,there are great differences in theoretical circles on its judicial application,and there are many dilemmas in the application of the principle of public order and good morals in judicial practice.Therefore,the purpose of this paper is to analyze the long-accumulated controversial issues concerning the judicial application of the principle of public order and good morals in the field of marriage and family.By studying the current situation of judicial application,realistic dilemmas and courts’ reasoning and argumentation process,this paper sorts out the adjudication ideas,which are mainly divided into the following parts:This paper firstly explores the theories underlying the principle of public order and morality,mainly:clarifying the concept and nature of public order and morality,exploring the legislative development of the principle of public order and morality,and the conflict and integration between the principle of public order and morality,common law and the rule of law,discussing the integration of the principle of public order and morality with the field of marriage and family and the function of the principle of public order and morality in the field of marriage and family.The second part of the study is to examine the case law on the application of the principle of public order.Secondly,by sorting out the adjudication cases,it is found that there are practical dilemmas in the application of the principle of public order and decency in the judicial activities in the field of marrage and family,such as the confusion of the application of the principle of public order and decency with honesty and credit,the phenomenon of different judgments in the same case,the direct reduction of the law to "moral judgment",the escape to the general provisions,and the lack of interpretation of the law and reasoning.The first is the inherent difficulties in the application of the principle of public order and good morals,the highly abstract nature of the concept of the principle of public order and good morals,the unclear boundaries between the law and general marriage ethics,the large geographical differences in China,the inconsistency of marriage customs around the country make it difficult to form a unified standard of application.The second is the lack of normative system and typology of the application of the principle of public order and morality in the field of marriage and family,and the third is the difficulty of judicial adjudication.Finally,in order to solve different types of difficulties,three types of specific application suggestions are put forward;to clarify the standards of application of the principle of public order and good morals,including national and local standards,as well as the standards of application differentiated from other principles.Improve the construction of a standardized system,such as clarifying the conditions and scope of application,analyzing the types of cases in the field of marriage and family,and introducing value-added methods of judgment.Improving the mechanism of judicial adjudication,such as improving the level of judges’interpretation and reasoning,strengthening judges’ ability of rational thinking,etc.To limit the excessive abuse of discretionary power by judges for the sake of justice and the manifestation of their functions in the field of marriage and family.Through the above-mentioned research,firstly,the connotation of the principle of public order and morality is accurately understood from a historical perspective,with a view to resolving the inherent difficulties in the application of public order and morality.Secondly,the analysis of jurisprudence and functions,which is based on the analysis of the characteristics of the application of the principle of public order and good morals in marriage and family,will help to promote the new era of thinking about the rules of application of the principle.Finally,a systematic analysis of the approach to the principle of public order and custom in the field of marriage and family will help provide ideas for adjudication of property-intensive marriage and family cases from the perspective of traditional good customs in the era of civil code.