论公序良俗原则

On Principle of Public Order and Good Social Customs

公序良俗原则包含有公共秩序和善良风俗,公共秩序与善良风俗的关系,二者也是既独立又统一,善良风俗与公共秩序之争乃市民社会与政治国家对立之缩影,从根本上讲,善良风俗是公共秩序的基础,这才真正体现了民法对人的终极关怀。而现实却是,善良风俗依附于公共秩序,在效力上低于公共秩序,当二者发生冲突时,公序良俗原则则转化为公序原则。

The principle of public order and good social customs includes public order and good social customs, the relationship of which two is both independent and unified. The conflict between good social customs and public order is a microcosm of the conflict between civil society and political state. Basically, good social customs are the basis of public order, which shows the ultimate concern of civil law to the people. But the fact is that good social customs are dependent of public order and are, as far as effect is concerned, inferior to public order. When there is conflict between the two, the principle of public order and good social customs turns into the principle of public order.