论公序良俗原则的确立

On the Establishment of the Principle of Public Order and Good Morals

作为一个抽象化、动态化以及非特定化的原则,公序良俗原则无论其内涵还是外延都具有明显的不确定性,这种不确定性来源于民事法律调整社会关系时的固有缺陷和社会生活的复杂性、多变性和不稳定性。研究公序良俗原则是为了尽量克服和避免由于其不确定性所带来的不利影响,目前仍然可以从立法完善、司法适用层面进行规制,以便使公序良俗原则更好地发挥克服法律局限、维护公共秩序、协调利益冲突、追求实质正义的重要作用。

As an abstract, dynamic, and non-specific principle, the principle of public order and good morals has significant uncertainty whether for its connotation or extension. This uncertainty comes from inherent defects of civil legal as it regulates social relations as well as the complexity, variability and instability of the social life. The study of the principle of public order and good morals is to overcome and avoid the adverse effects of its uncertainty. Currently, it can still be regulated from the perfection of legislation and the judicial application so that the principle of public order and good morals can play the important role in overcoming the legal limitations, maintaining public order, harmonizing the conflict of interest, and pursuing real justice.