公序良俗原则法律适用的判断标准探析

On the Concrete Application Criterion of the Principle of Public Order and Good Custom

我国台湾学者郑玉波先生曾言:"公序良俗在今日已为私法上之至高原则。"盖因其作为民法基本原则之一,不仅能统领民法具体规范,还因其弹性之大,可作为法官行使自由裁量权、克服成文法局限性之工具,对立法和司法都有着重大意义。但其概括抽象性恰又造成了在理解适用中的诸多不一致、不确定,出现了"同样的事实,却得出不同、甚至相反的判决结果"的法律尴尬。文章从对公序良俗传统概念、公序良俗原则与具体民法规范在法律适用中的关系的分析出发,探寻公序良俗原则的法律适用中的判断标准,以减少其适用中的尴尬局面,维护法律的权威和尊严。

Zheng Yu-bo, a famous scholar of the Taiwan district, regarded the principle of public order and good custom as a ＂king provision＂ in the civil law. As a basic principle of the civil law, public orders and good custom is not only a king of the other rules, but also an instrument by which judge can exercise the judicial discretion to overcome the limitation of the statutory law. So it is very necessary for us to expound it clearly, to comprehend its function deeply, and to grasp its application in the judicial process fully. But the author find that there is not a definition that can be accepted by scholar,so thesis give up the attempt to define this principle and turn to describe this principle, to analyze the application of public order and good custom. How to use this principle in the judicial process？ This is a complex and important question at present. So this thesis put great emphasis on the discussion of judgment criterion. The purpose is to find what can we do to advance the certainty of this principle, and to restrict the judge to exercise the fight of discretion at will.