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Legal analysis of the principle of public order and good customs

Author: ChenLiE
Tutor: ZuoHongMing
School: Nanjing Normal University
Course: Legal Theory
Keywords: Public Policy and Good Morals discretion base of theory judicialapplication
CLC: D913
Type: Master's thesis
Year: 2012
Downloads: 198
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Abstract


Public Policy and Good Morals involve in public order and moral actions. The rule of it can be traced back to the ancient Rome ages."In a word, we created the new rule that the immoral stipulations have no any legal effect", written in the fourth volume of Ulpian’s Sabin’s Remarks. In modern times, public policy and good morals were initially found in the legislation as the limitation on freedom of contract."Anybody cannot break the law related to public order and moral actions with a special agreement", written in the Principle6in Code Civile de Francais of the early19th Century. Nowadays, many countries have legislated to promote Public Policy and Good Morals to basic principles of civil law. We also affirm its status, but we use different words in our civil law. The Article7in General Principles of the Civil Law states that civil activities should respect social morality, but should not jeopardize public interests, disrupt of the State economic plan or interfere with the social economic order. This thesis simply analyzes the connotation of the Principle of Public Policy and Good Morals, its legal origin and the description in our legislation.Principle of Public Policy and Good Morals has been developed from ideas to cases, from the original limitation on principles of freedom to the general principle of judging juristic acts. It finally became a basic principle of modern civil law which is the guideline of specific rule of civil law, and the effective tool for judge’s discretion and overcoming the restriction of the written laws. Principle of Public Policy and Good Morals reflects that we should ensure the fundamental rights of Constitution, encourage public morals, and make up the shortfall of law and morality. At the same time, Principle of Public Policy and Good Morals, as the important balance point of coordinating public and private law, has the basic function of protecting the fundamental rights of citizens and safeguarding social public benefits, and it plays an important role in remedying the disadvantages of law. It will exert a great influence on the social stability and law change to properly apply the Principle of Public Policy and Good Morals, study the problems and solutions in its applicable process and bring it into full play.

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