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。
Since 2013, the public order and good custom are much applied in judgment in many fields such as legal acts, torts and unjust benefits. In judicial application, there exists defining issues on public order and good custom such as replacing public order and good custom with general moral standards, mixed use of concepts and separating public order with good custom, as well as the nonstandard application issues including incorrect judgment of objects, and applying general articles instead of specific articles. There are two methods to deal with judicial application issues of public order and good custom： first, in order to achieve effective communication between external and internal values in Civil Law, which includes defining the princiPle of public order and good custom to increase the definiteness, fully playing its leading role, and strengthening the principle＇s distinction and control in Civil Law. Second, guaranteeing scientific application of the principle of public order and good custom, including making clear the application condition, applying stylized application methods, summarizing mature types in judgment, paying attention to the debtor＇ excess of his estimated prestation capacity, the maintenance of basic rights, and other types not included in Chinese judgment.
出处
《中国法学》
CSSCI
北大核心
2016年第6期236-257,共22页
China Legal Science
