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The discretion of the principle of public order and good custom in the legacy disputes in the

Author: LiZuo
Tutor: WangGeYa
School: Heilongjiang University
Course: Legal
Keywords: Principle of Public Policy and Good Morals Legacy dispute discretion
CLC: D923
Type: Master's thesis
Year: 2013
Downloads: 32
Quote: 0
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Abstract


The basic principles of Civil Law are the fundamental guidelines of Civil Lawsystem, whose validity should be reflected in all civil activities. The basic principlesof Civil Law help overcome the limitations of statute laws and make up for the laglegal rule. In juridical practice, there is now an increase in the percentage of casesbased on the basic principles of Civil Law, which leads to the public focus on thedirect application of Principle of Public Policy and Good Morals. Principle of PublicPolicy and Good Morals is an important principle in Civil Law system, which alsohas an vital status in the continental law system. However, Principle of Public Policyand Good Morals hasn’t been clearly defined in our nation’s Civil Law system,which results in its uncertainty in juridical practice due to the variations of its status,considerations and the standards of application. The essence of Principle of PublicPolicy and Good Morals is a restriction on the party’s discipline in his or herawareness. In our country’s juridical practice, the restriction is mainly shown in thelegacy cases whose purpose is to decide the validity of the legacy contracts, as seenin Luzhou Legacy Case and Guangxi Mistress Case. This kind of cases is interrelatedwith the relevant stipulations in Marriage Law and Inheritance Law. Therefore, willthe violation of the stipulations in Marriage Law and Inheritance Law lead to theinvalidity of legacy activities? And what are the standards, legal basis andmeasurements when apply Principle of Public Policy and Good Morals? As there isno such a clear standard which results in different decisions on similar cases, thewriter of the thesis tries to analyze both theoretically and practically the discretion ofjudges when applying Principle of Public Policy and Good Morals in legacy cases bycomparing different cases. The purpose of the thesis is an attempt to find aprocedural method to define the standards of Principle of Public Policy and Good Morals in legacy cases, which will definitely insure the reasonability of itsapplication.

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