民法基本原则之司法适用——以公序良俗原则为视角

The basic principles of civil law in judicial application——From the view of principle of public order and good custom

从民法基本原则性质的角度出发,以实证主义的法律方法论证了我国民法的基本原则不仅是法律要素中不可或缺的重要组成部分,而且具有法律规范的拘束力,故其可以司法适用并作为民事裁判的依据.但其在司法适用时应该遵循一定的规则.

From the angle of the basic principles of civil law, the basic principles of civil law in judicial application is discussed by using legal positivism method. It demonstrates that the basic principles of the civil law are not only an important part of legal elements, but also have the binding force of legal norms. So they can not only be in judicial application but also can become civil referee basis. Of course, they should follow certain rules in the judicial application.