论公序良俗原则适用的技术标准

On the Applicable Technical Standard of Public Orders and Virtuous Custom

公序良俗是公共秩序与善良风俗的简称,缘于该原则内涵的不确定性,其在具体实践适用中,出入较大。通过厘清公序良俗原则的价值评判,并从是专家标准还是普通人标准、普通人的意见是否会导致多数人的暴政、是官方的还是多数人接受的等角度进行多方面的考量,从而确立起公序良俗原则适用的技术标准,并指出其在司法审判中的适用规则,以更好地发挥其维护法律秩序的效用。

The abbreviation of public order and kind custom is ＂Gong Xu Liang Su＂ in Chinese, which is because of the uncertainty of its principle connotation, and quite different in the concrete practice. Through the correction of value judgment for the principle of public order and virtuous custom, the applicable technical standard of public order and virtuous custom is examined from different angles like the standard of professionals or ordinary people, the possibility of ordinary people opinion leading to the tyranny of most people, the offi cial standard or the one accepted by most people, and thus has been established. Meanwhile, this applicable regula nance tion of this principle in the judicial adjudication is presented, expecting its better effect in the mainteof legal order.