论“可以适用习惯”“不得违背公序良俗”

On “Customs May Be Followed” and “Shall not Violate Public Order and Good Customs”

"可以适用习惯"是法律对法院和法官的一项授权,藉此,法官在民事纠纷解决中获得"可以适用习惯"的自由裁量权。但这一自由裁量权的行使,必须以所适用的习惯"不得违背公序良俗"为限。这是法律在对法院和法官授权的同时,所做的义务性限制。这要求在学理上既需认真探究习惯问题,并对其做类型化处理,也需认真研究公序良俗问题,并同样对其做类型化处理。只有如此,才能方便法官按照"不得违背公序良俗"的规定来查明和适用习惯,最终以习惯为据,构建裁判规范,并在一定意义上体现司法的创造性--借助司法填补法律漏洞、完善法律体系,探索司法判例制度。

"Customs may be followed"means that laws endorse authority to courts and judges,whereby judges obtain the power of discretion of "customs may be followed". However, exercising this power has to be within the limit of the rule of "shall not violate public order and good customs".This is a kind of compulsory restriction imposed by the law on the court and the judge,which requires people not only explore problems of customs seriously but also categorize them at the level of science principle. Studying the problems of public order and good customs and categorizing them is also needed.Only by this can make judges identify and apply for customs in cases according to which they can build the criterion of judge in accordance with rules of"shall not violate public order and good customs". And it can embody creativity with the help of filling legal loopholes,improving judicial systems and exploring judicial precedent systems.