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本篇paper代写- The principle of public order and good custom in civil law讨论了民法的公序良俗原则。一般认为法律中的公序良俗原则起源于罗马法的规定。在罗马法上，公序指的是国家的安全，市民的根本利益；良俗指的是市民的一般的道德准则。二者含义广泛，且随时间、空间的不同而异，并非一成不变，且违反公序良俗的行为无效。法国民法典、德国民法典中都有相应的规定。良好的公共秩序无疑是从国家维持社会秩序的角度对公民行为提出的基本要求。本篇paper代写由51due代写平台整理，供大家参考阅读。

Social life changes so rapidly that more and more new things come into our eyes. There is no shortage of surprises: "surrogate mothers" agreements, "milk banquets", organ trading and the use of urns for wages.. When the parties involved in these incidents are in court, our judges seem to find it difficult to find the corresponding express provisions in the law, but these behaviors indeed go beyond the psychological and moral bottom line of the public, violate the good social customs and cause bad social impact. Therefore, the wise judge brought out a legal cornerstone -- the principle of public order and good custom.

It is generally believed that the principle of public order and good custom in law originated from the provisions of Roman law. In Roman law, the public order refers to the security of the state and the fundamental interests of the citizen; Good custom is the general moral code of the citizen. They have a wide range of meanings and vary with time and space. They are not invariable and the violation of public order and good custom is invalid. The French civil code and the German civil code have corresponding provisions. In the relevant German jurisprudence, "public order and good custom" is expressed as "the etiquette feeling of the thinker of all fairness and justice". Article 7 of the general principles of civil law of China stipulates that "civil activities shall respect social morality and shall not harm social public interests". Article 58 provides that "civil ACTS that violate the law or the public interest of society are null and void". According to academic circles, the status and function of social public interest here is equal to the public order and good custom in other legislative examples.

"Public order and good custom" refers to public order and good customs. Undoubtedly, good public order is the basic requirement of the state to maintain social order. And good custom is the social morality level standard human behavior and inner ethics standard. It is impossible for a legislator to make explicit provisions for all ACTS. At the same time, various new problems emerge endlessly. Therefore, compared with the specific rules and regulations, the function of "public order and good custom" is flexible and flexible, which integrates the judge's discretion. When an act that endangers the public interest and undermines the moral order of the society needs legal adjustment, and the law lacks specific and clear provisions, the court can directly determine the nature of the act and impose corresponding penalties based on the principle. The purpose of the establishment of public order and good custom principle is to grant judges discretion to a certain extent, so that judges can obtain proper judgment for specific cases, so as to remedy the deficiency of specific legal provisions, that is, to solve the profound contradiction between the finiteness of standard quantity and the infinity of standard object. Of course, with the development of society, its meaning is also constantly extending and expanding.

Article 7 of the contract law promulgated in 1999 states: "the parties entering into and performing the contract shall abide by the laws and administrative regulations, respect social morality, and may not disturb the social and economic order or damage the public interest." The theory circle induces it as "public order good custom principle". The author believes that this principle is not only the legal requirement for the conclusion and performance of the contract, but also the regulation of the purpose and content of the contract. In the field of contract law, we always emphasize the party's autonomy of will and embody the "freedom of contract". However, it can be considered that the principle of public order and good custom is a restriction on the autonomy of will and freedom of contract rising to the level of legal regulation. The parties to a contract cannot harm the interests of a third party or society for the common interests of each other, otherwise the validity of the contract will be evaluated negatively.

In real life, many merchants' methods and methods of promoting and competing for sales, though novel and eye-catching, are contrary to the good social customs, do not meet the public's moral expectations, and will certainly not get the positive evaluation of the law. Commercial law is the basic code of conduct and trading rules for businessmen to engage in commercial activities. Merchants are a special interest group because of their complex interests. Therefore, in the commercial activities, in addition to the rigid provisions, the norms of the content and purpose of the conduct are indispensable to the elastic social requirements as a supplement. To sum up these social requirements and raise them to the legal level, that is, the principle of good faith, public order and good custom. Compared with honesty and credit, public order and good custom pay more attention to the interests of unspecific social groups. The social public order and the good moral custom are the concomitant product when the social citizen reaches the "social contract". Business activities are often of great socio-economic impact, often affecting the economic stability of an industry, a region or the whole society. Therefore, it is necessary to put forward the requirements of "public order and good custom" in the merchants' activities.

In recent years, in some cases, the referee's reference to the principle of public order and good custom is not without controversy. What is the public order good custom, the social subject has the different viewpoint, the people starts from the different values, the viewpoint difference is very big naturally. This challenges judges' professionalism. The common types of "good customs" in civil trial are indicated, according to the cases divided into marriage caused by property disputes, cohabitation caused by the relevant disputes, support disputes, parenting disputes, property inheritance disputes, infringement disputes against custom and adjacent rights disputes and other seven small parts. The disputes caused by cohabitation recognized the so-called "DE facto marriage" in the countryside, and the disputes on inheritance of property stipulated the "right of residence" which was not stipulated in the property law. When will good customs enter the judicial system? There must also be some applicable principles. Taizhou intermediate people's court stipulates that laws and policies that are expressly prescribed must apply to laws and policies, and those that are not explicitly prescribed can refer to local good customs, namely, the principle of complementarity. "This is a major premise and a basic principle that must be adhered to, or it will go against the spirit of the rule of law and the unity of the rule of law and shake the dominant position of national law." Zhang peicheng said. At the same time, because of the local characteristics of good customs, usually only applicable to the parties in their jurisdiction. It is generally not applicable to the parties outside the jurisdiction of both parties or one party, or after the judge exercises the right of interpretation.

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