公序良俗的比较研究

A Comparative Study of Public Order and Social Custom

从某种意义上讲,法律是自生自发的秩序,是民族精神的外化。因此各国法律均注重公序良俗与成文法的兼容。我国民法作为法律移植的成果,在公序良俗方面既割断了与中华法系的传承,也未顾及两大法系设立公序良俗制度的价值意义。回溯两大法系公序良俗制度并进行重新评价非常必要。

To certain extent, law means a spontaneous order, which represents the national spirit of a people. Laws of different countries, therefore, almost always attempt to combine their written laws with their public orders and social customs. Chinese civil law, as an achievement made by legal transplantation, fails to cherish the traditional values of Chinese legal system and to pay attention to the significant values of the two legal systems in establishing public orders and social customs. It is necessary, therefore, to reevaluate the two legal systems in establishing public orders and social customs at the time when the civil law is still under way of drafting.