论公序良俗原则的适用规则——一起“婚外情”赠与案引发的思考

On Rules Applying to the Principle of Public Order and Good Custom——Thoughts A rising from a Case of a Gift Relating to an Extramarital Affair

公序良俗原则具体内容的概括性使其在司法适用中具有很大的灵活性,起到了填补法律漏洞的作用。但其在授予法官极大自由裁量权的同时,也易导致原则被滥用,以致出现"相同情况,不同处理"的不公正结果。应当通过创设公序良俗原则的适用规则以规范该原则的适用。公序良俗原则的适用规则应当包括消极适用规则、区分规则和限制诉请主体范围规则。

The generality of the specific content of the principle of public order and good customs means the judicial approach to these topics is often flexible and often plays the role of filling in gaps in the law. Although granting the judge discretionary power, the principle is easily misused and leads to unjust results of ＂the same situation, different treatment＂. Rules should be set up to apply so they standardize the application of the principles. The applicable rules of the principles of public order and good customs include those concerning rules of passive use, discrimination and limiting the scopes of the subjects of litigation.