论公序良俗

Public Order and Good Custom

公序良俗是从观念发展到判例 ,从最初对契约自由原则的限制而后被逐渐提升为判定法律行为的一般依据 ,最终成为现代民法上的一项基本原则的。作为民法上的一般条款 ,其是立法的基础和当事人行使权利的准则 ,也是法律解释、漏洞补充及司法机关进行创造性活动的依据 ,违反公序良俗原则 ,理应承受不利的法律后果。

Public order and good custom develops from mentality to judicial case, rises from the initial limitation on the freedom principle of the contract to the general foundation to judge judicial behavior, and has finally become a basic principle in modern civil law; as an item in the civil law, it is the legislative basis, the rule for the party to conduct his right, as well as the foundation of legal interpretation, loophole amendment and the creative activities of judicial organs. Being against the principle of public order and good custom naturally should bear the unfavourable legal consequences; further enhance the practice of public order and good custom in Chinese law, referring to these.