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Limit of public order and morals of the principle of private autonomy and helpful

Author: LiuJunXian
Tutor: TianShiYong
School: China University of Political Science
Course: Civil and Commercial Law
Keywords: Private Governance Public order and good customs Limit Helpful
CLC: D913
Type: Master's thesis
Year: 2007
Downloads: 683
Quote: 2
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Abstract


Public order and good customs as one of the basic principles of private law, has long been seen as a restriction of private autonomy. In China, 2001 Luzhou bequest case caused a discussion of the legal circles about how to apply the public order and good customs restrict private autonomy. Modern society, public order and morals in the field of contract principle of private autonomy limit expansion, we must re-analysis of the role of public order and good morals principle of private autonomy. As pointed out by Li Yongjun teacher: \the role of the private autonomy not only to limit the role also includes a helpful role. The role of these two are united in the common pursuit of public order and good customs and private self-government for the value of private law and justice. This unity as a starting point, in order to properly analyze the role of public order and good morals principle of private autonomy restrictions and helpful. Along this line of thought, the use of history and its method of comparative analysis, combined with the case, from the basic theory, analysis and discussion on the limitations and helpful role of public order and good morals private autonomy. Text is divided into four part: the first part, \or helpful doubts. After a brief analysis pointed out, correctly grasp of public order and good customs principle of private autonomy limits the \and maintenance the private liberal order, to achieve the unity of private law and justice goals. The second part, starting from the private autonomy and public sequence benign and the consecration of the basic theory, the effects of the history of the principle of private autonomy established through the analysis of the meaning of the Private autonomy, reiterated private autonomy as a private law core philosophy and principles of the position, emphasizing the inevitability of private autonomy and may and as an example of the role of private autonomy private liberal order the driving force behind the formation and private law and justice goals. The content and nature of the proper meaning and analysis reveal private autonomy of public order and good morals, in the third part of this article further analysis of limitations and the helpful role of public order and morals of the principle of private autonomy provides a theoretical tool. The third part of the second part of the analysis as a basis for analysis of the unity of the public order and good customs and private autonomy, and are discussed as a basis for public order and good customs restrictions for private autonomy helpful. First, the maximum value of the method as a starting point, pointed out that the goal of justice in private law, the maximum value is the formation and maintenance of the private liberal order, prosperity and progress of the free development of the individual and society. Secondly, it is pointed out that the private autonomy as a capacity for self-recognition, to play a helpful system of human creativity, is a private liberal order system tools, an important means of private law and justice objectives. Public order and good customs by autonomous set the framework for private border to prevent the main abuse of liberty, and private liberal order, prompting the individual in the cooperative order to achieve autonomy and development. It follows that the private autonomy and public order and morals in private liberal order maintenance and private law and justice to value unity. Finally, the first part of the problem leads to the unity of the two, re-analysis of the role of public order and good customs restrictions for private autonomy helpful. Finally, make a conclusion: in order to achieve the free order of private law, private law justice value, you must admit the private autonomy and public order and good customs principle of uniformity, to find the balance point the two better play public order and good customs principle of private autonomy limitations and helpful role in enabling private autonomy castle above the banner of autonomy can be flying at the same time, see the castle freedom of the people, orderly life scenes.

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