公序良俗原则在背俗型侵权中的司法适用

The judicial application of the principle of publicorder and good customs in the infringement of defamation

公序良俗原则作为连接民法规范与公民权益的纽带之一,其重要性不言而喻。从数量上看,适用公序良俗原则的案例层出不穷,案件的类型也渐趋多元化。司法实践中缺乏规范一致的判断标准以及对于公序良俗原则的向度把握不够严谨,导致法律的适用过程缺乏逻辑性和体系性。从性质上看,司法实践日新月异,侵权法规则相较于层出不穷的新情况,在适用时具有相对滞后性。当公序良俗原则适用于侵权案件时,存在适用不规范、“向一般条款逃逸”等乱象,有必要从立法上完善公序良俗原则适用的判断标准,实现顶层立法与司法适用的辩证统一。在审理类案时,应参考已有的优秀典型案例,对事实大致相同的案件进行实证分析,做到同案同判,维护司法秩序的一致性和稳定性。适用公序良俗原则分析案件事实,必须进行合理的证成,提供有力的理论支撑和事实依据。

As one of the links between the norms of civil law and the rights and interests of citizens,the importance of the principle of public order and good taste is self-evident.In terms of quantity,there are numerous cases of applying the principle of public order and good taste,and the types of cases are becoming more and more diversified.The lack of consistent judgment standards in judicial practice and the lack of rigorous grasp of the principle of public order and decency have led to a lack of logic and systematization in the application of the law.By nature,judicial practice is changing rapidly,and tort law rules have a relative lag in application compared to the endless new situations.When the principle of public order and morality is applied to infringement cases,there are irregularities in the application and“escape to the general provisions”,etc.It is necessary to improve the judgment standard of the application of the principle of public order and morality from the legislation and realize the dialectical unification of top-level legislation and judicial application.In the trial of such cases,reference should be made to the existing excellent typical cases,and empirical analysis should be conducted for cases with roughly the same facts,so as to achieve the same judgment in the same case and maintain the consistency and stability of the judicial order.The application of the principle of public order and morality to analyze the facts of the case must be reasonably evidenced,providing strong theoretical support and factual basis.