公序良俗在我国的司法适用研究
发布时间：2019-06-24 20:17
【摘要】：公序良俗在裁判中的运用自2013年起增加迅速,涉及法律行为、侵权行为和不当得利等各领域。司法适用中存在以一般道德标准替代公序良俗、概念混用和割裂公共秩序与善良风俗等公序良俗界定问题,也包括判断对象错误、向一般条款逃逸等适用不规范问题。公序良俗司法适用问题之应对策略包括两大方面:一是要实现民法外部与内部价值有效沟通,具体包括界定公序良俗原则以增加确定性、充分发挥其引致作用、加强原则在民法内部区分控制。二是保障公序良俗原则之科学适用,具体包括明确适用条件、采取类型化适用方法、总结裁判中成熟类型和关注债务人超出自己预计给付能力、基本权利维护等我国裁判中尚未涉及之类型。
[Abstract]:The use of public order and good customs in adjudication has increased rapidly since 2013, involving legal acts, tort and unjust enrichment. In judicial application, there are some problems in judicial application, such as replacing public order and good custom with general moral standard, mixing and separating public order and good custom, and also including judging object error, escaping to general clause and so on. The countermeasures of judicial application of public order and good custom include two aspects: one is to realize the effective communication between external and internal values of civil law, including defining the principle of public order and good custom in order to increase certainty, giving full play to its leading role, and strengthening the distinction and control of principles in civil law. The second is to ensure the scientific application of the principle of public order and good customs, including defining the applicable conditions, adopting the typed application method, summing up the mature types in the judgment and paying attention to the types that have not yet been involved in the judgment of our country, such as the debtor exceeding his expected ability to pay, and the maintenance of basic rights.
【作者单位】： 湖南大学法学院;
【分类号】：D923
[Abstract]:The use of public order and good customs in adjudication has increased rapidly since 2013, involving legal acts, tort and unjust enrichment. In judicial application, there are some problems in judicial application, such as replacing public order and good custom with general moral standard, mixing and separating public order and good custom, and also including judging object error, escaping to general clause and so on. The countermeasures of judicial application of public order and good custom include two aspects: one is to realize the effective communication between external and internal values of civil law, including defining the principle of public order and good custom in order to increase certainty, giving full play to its leading role, and strengthening the distinction and control of principles in civil law. The second is to ensure the scientific application of the principle of public order and good customs, including defining the applicable conditions, adopting the typed application method, summing up the mature types in the judgment and paying attention to the types that have not yet been involved in the judgment of our country, such as the debtor exceeding his expected ability to pay, and the maintenance of basic rights.
【作者单位】： 湖南大学法学院;
【分类号】：D923
【参考文献】
相关期刊论文 前10条
1 李岩;;公序良俗原则的司法乱象与本相——兼论公序良俗原则适用的类型化[J];法学;2015年11期
2 黄U，
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