Public order and good customs, is to use the concept of countries of continental law system and the civil code of our country in Macao and in Taiwan area. Public order and good custom is called the public order and good customs,Public order and public order, generally refers to the interests of the state and society, the good custom is good custom, scholars generally believe that refers to the general moral society, is the specific society respects at leastMoralityRequirement. Our current law does not adopt the concept and presentation of public order and good custom, but the "general rules of the civil law" seventh, "contract law" seventh and "property law" seventh article on social morality, social public interests and social economic order, is generally considered to be admitted to the principle of public order and good customs. The principle of public order and good customsReflect "The right not to be abused"The theory of civil law. ItMeanIn the exercise ofCivil rights, its behavior should be consistent with the kind customs and habits, does not damage the political state and civil society in general public order. Especially in the lawRuleNot enough to evaluate the behavior of the subject, autonomy and the right to public order and good custom can limit the abuse of civil subject.

Known as thePublic order and good customsThe first case of the "kept woman" inheritance case

Case description: Luzhou City, Sichuan Province, the employees of a company in Huang and Chiang a 1963 wedding, but his wife Jiang Mou has been unable to have children, and later had to adopt a son. The reason for the family was shrouded in a shadow. In 1994, Huang met a surname woman, and with a known after second years. Later, Huang's wife Jiang discovered this fact, but ineffective counsel. By the end of 1996, Huang and Zhang renting public cohabitation, living as "husband and wife" name, rely on the Yellow salary (Tui Xiujin) and bonus life, and to have joint management.In 2001 February, Huang to the hospital inspection, confirmed that he has been advanced hepatocellular carcinoma. In these days of yellow is about to leave this world, Zhang faced ridicule others, to the identity of his wife waiting in the Yellow bed. In 2001 April 18 yellow Hitachi Wills: "I decided, according to law, income housing subsidies, housing provident fund, pension and sell Jiangyang District of Luzhou city housing price half (40000 yuan), and the mobile phone of a left my friend Zhang one all. After my death by Zhang is responsible for the buried cinerary casket." This will be the April 20th yellow notarization in Luzhou Naxi District Notary office. In April 22nd, Huang died, according to Jiang Zhang will ask for property and cinerary casket, but was Chiang refused. Zhang Sui to Naxi District People's court, the request in accordance with the relevant provisions of the inheritance law, order the defendant to Jiang Mou by will perform, at the same time, pre litigation preservation of the heritage of the application. From May 17th onwards, the court after the 4 session (which was once suspended, July 13, 2001, Naxi District Justice Bureau of the notarial wills "legacy pension" partially revoked, still maintain a notary public housing subsidies and funds belonging to Huang Yongbin part of the. After hearing recovery in October 11th), Naxi District People's Court of public judgment, think: Despite the clear legal provisions in the law of inheritance, but in this case the bequest is real, but Huang will be presented to "the legacy of civil conduct third party" in violation of the seventh general principles of civil law, "civil activities shall have respect for social ethics, and shall not harm the social public interests, undermine state economic plans, disrupt social economic order", therefore, the court rejected the plaintiff Zhang litigation request.

 The court made the judgment is based on the principle of public order and good customs.

Public order and good morals is an important legal principle of civil law.The first of public order and good customs regulations is the 1804 "French Civil Code", the code of sixth stipulates that: "the individual may in special agreement violation of public order and good customs law.""The general principles of the civil law of the people's Republic of China"Article seventh: civil activities shall have respect for social ethics, and may not harm the public interest, undermine state economic plans, disrupt social economic order. That is what we in the civil law principle of public order and good customs, is the basic principle of the civil law.The first objective of public order and good customs establishment isThe maintenance of social justice, protection of the weak,Is the social fairness and the value pursuit of substantive equality and choice of value.For example:Sales profits,Help escape contract, involving environmental infringement contract, couples a support contract conditions attached, borrow abdominal son contract,Gambling debtEtc.It is against the public interests of the community,Civil dispute mediator in the lack of legal provisions or does not violate the mandatory legal norm conditions, can make use of public order and good customs general requirements for handling disputes.

On the premise of bequest of true and lawful, have "Inheritance Law" provisions of the circumstances, I think the court cited the principle of public order and good custom to settle a lawsuit against the rule of law requires practice. My view of the case:

(a) quoted the principle of public order and good custom is conditional

I think the quoted the principle of public order and good custom is conditional. Only in the law does not make specific norms, can refer to this principle, after all the legal principle is a necessary supplement to the rule of law, rather than substitute.Inheritance refers to the citizens to a way after his death will be legal action outside its heritage of part or all of the state, the collective or the legal successor to someone.The case will real and effective, and notarized, fully in accordance with the relevant provisions of the inheritance law to hear. Legacy is every citizen's legal rights, in this case the parties Zhang (Zhang and the assumption of strangers) take care of the deceased and arrangement, to "provide for the aged" obligations, inspired by the fact that the legacy and no fraud blackmail properties, bequest behavior itself is legitimate, non existence of social harmfulness of gambling, help escape and other similar properties. As with Zhang live together as husband and wife have constituted the crime of bigamy fact, should say. If the deceased relatives Zhang that should be punished, can be made of bigamy liability litigation. Legacy and the crime of bigamy is two unrelated legal behavior, not because of bigamy and deprived of the rights of inheritance, also should not be subject to the liability of the property to offset the legacy of bigamy. Law expressly circumstances, to abuse the principle of public order and good customs, is bound to lead to the inequality before the law, it is for a "kept woman" this group, no (lover) inheritance rights, this is obviously contrary to the principle of equal rights. Public order and good customs reflect the social morality in a certain extent, but the government by law society, morality cannot be more above the law, otherwiseIt will eliminate the distinction between law and morality."If the boundaries between law and moral requirements are not clear or very vague, so the legal certainty and predictability will damage." [1] 

(two) the analysis from the perspective of autonomy

Civil law is the essence of the autonomy of the will, the freedom of contract.Freedom of contract is protected by the constitution or in the constitutional position of freedom. This freedom is supreme, anyone including countries in principle is not a violation of the. The contract has not only means the transaction means, it has become a way of life of mankind, dominate people's thinking mode. As a kind of belief, a kind of cultural tradition, becomeThe rule of Law SocietyA real strength ofThe autonomy, the civil behaviorHave a confrontation and power function, to prevent improper intervention on people's privacy, public power.Without freedom, contract has become the "a dead-alive person without soul"Civil behavior, will lose the force of law, civil law is useless. In this case however the valid legacy is the autonomy performance, is a trade to take care of life and give the bequest essence,Under the principle of private autonomy, the parties may by law or contract independently engaged in trading activitiesAny legal contracts, the organization and the individual may not perform and achieve interference and obstruction of contract. The autonomy of private law shall beLikeOlympic runnerThe rules of the game,Not because the players were injured in the accident and cancel the match or modify the match results. Serious legal is neutral, not endless pity "injured", because life is inherently risky, chance of anyone risks are generally large, since the litigants contract, default risks may occur in the future, or not to contract. So the parties to a contract is a contract, and the third party. The laws are strict rules and non merciful savior.

Three.Public order and good customs and judicial independence

Judicial independence is an ancient and timeless topic. Its meaning isThe people's courts exercise judicial power independently according to law, the trial only obey the law. As Marx said "the law is nothing else except the boss"[2]However the theory is always gray. In the judicial practice of public order and good custom, human seems to be a substitute for legal. A court before the trial, some media tend to "seize the hot" any comments, cause public opinion leans to one side, in the effect of media and government departments under the pressure, the court only make "public opinion" judgment, and disregard of the law. Especially in the case of this kind of like in this case, relatives, neighbors, often choose in front of the court meditation, self Immolation to threaten the court not to "popular indignation", the court had to refer toPublic order and good custom to make judgments, it is not an independent judicial performance, is the rule of law and social retrogression.