公序良俗原则与诚实信用原则的区分

Distinguishing between the Principle of Public Order and Morality and That of Good Faith

我国民法理论尚未对"为什么民法同时需要诚实信用与公序良俗两个原则"作出根本的回答,实践中在这两个原则的裁判适用上还存在严重的模糊和混淆。公序良俗原则针对法律行为的内容进行"内容审查",诚实信用原则针对权利的具体行使行为进行"行使审查",两原则在适用范围、保护对象、标准设立、法律效果上有重大差异。在格式条款这一特殊领域,出现了以诚信原则进行"内容审查"的现象,这是追求结果的高度均衡这一目的所决定的,而且进一步展现了公序良俗与诚实信用两个标准的差异性。

China's theory of civil law has not as yet provided any fundamental reply to the question of 'Why does the civil code simultaneously need a principle of public order and morality and a principle of good faith?' In practice,considerable ambiguity and confusion still exist.The former principle 'examines the content' of legal acts,while the latter 'examines the execution' of the concrete exercise of rights.There exist significant differences between the two in terms of the scope of their application,the objects of their protection,the setting up of their standards and their legal effects.In the special sphere of standard clauses there occurs the phenomenon whereby the examination of content is carried out under the principle of good faith,as determined by the aim of pursuing high-level equilibrium of results.This further displays the difference between the standard of public order and morality and that of good faith.