Public order and good customs
(1) The concept of public order and good customs and its main contents. Public order and good customs are the collective name for public order and good customs. In relevant German jurisprudence, public order and good customs are described as “the etiquette sense of all fair and righteous thinkers.” 12 “Public order and good customs” include two aspects: “public order” and “good customs.” Public order refers to public order, which refers to the general interests of the country and society, while good customs, that is, good customs, are generally believed by academic circles to refer to the general morality necessary for the existence and development of society and the country, and are the minimum ethics respected by a specific society. Require. Mr. Shi Shangkuan pointed out that public order and good customs are mostly within the same scope, and sometimes it is very difficult to clearly distinguish them. The only one is speaking from the external social order, and the other is speaking from the internal moral concept. The same system aims at the sound development of the society and the country, and invalidates all legal actions that hinder this development. However, good customs and public order are not completely consistent. There are those that do not violate good customs but violate public order, and there are also those that do not violate public order but violate good customs. In modern market economic society, its main function is to safeguard the general interests of the country and society and general moral concepts. The first stipulation on public order and good customs was the French Civil Code in 1804. Article 6 of the Code stipulated: "Individuals may not violate the laws concerning public order and good customs by special agreement." Since then, Germany, Japan and other countries have The Civil Code of China and the Taiwan Region of my country have clearly stipulated issues of public order and good morals. Article 7 of my country's "General Principles of Civil Law" stipulates: Civil activities should respect social morality and must not... disrupt the social and economic order. The social morality and social and economic order here also have the meaning of public order and good customs.
According to the practice of most countries, the measurement standards of public order and good morals can be attributed to the principle of "social appropriateness" or "social legitimacy", and there is no distinction between them in practice. However, there are still differences between public order and good customs in terms of value orientation and adjustment methods. First, the legislative bases of the two are different. It is generally believed that "public order" focuses on the country's social order, while "good customs" focuses on social morality. Second, the normative content of the two is different. "Public order" is usually equated with mandatory norms or mandatory legal orders, while the main role of "good customs" is to maintain social moral norms. Third, the scope of action of the two is different. In the past, more attention was paid to the issue of "good customs" and the "social appropriateness" or "social legitimacy" pursued by good customs was regarded as the main content of public order and good customs. However, modern countries pay more attention to the legal adjustment of "public order". The reason is that public order The protection of public interests is more direct and has a more obvious effect.
Public order and good customs can be classified according to different standards. According to their different manifestations, they can be divided into legal and judicial types. According to their different purposes, they can be divided into basic rights protection type and policy implementation type. (1) Legal type and referee type. There is no doubt about the statutory type of "public order", but the question is whether there is a judicial type of "public order". Some views equate "public order" with mandatory norms, which is biased. Although public order mainly exists in direct legal provisions, the existence of judicial public order does not rule out the existence. Similarly, there are also two forms in "good customs". For example: Although prostitution, gambling, etc. are related to "good morals", since there are laws and regulations with criminal penalties for these behaviors, it can be said that they are legal types. (2) Fundamental rights protection type and policy implementation type. "Public order" mainly belongs to the protection type of basic rights, but there are also public order types of policy realization. There is nothing controversial about the basic rights protection type of "good morals". There are two reasons for this: First, if "good customs" in society are understood as legitimate moral norms, it can be said that it is precisely because of the existence of moral norms related to the protection of basic rights. For example: it can be said that it is these fundamental moral norms such as "Don't kill" and "Don't steal" that are in a position to protect other people's basic rights such as the right to life and property. Second, in society, not all legitimate moral norms can become "good customs", which is very important. According to Japanese scholars, whether these moral norms become "good customs" can only be determined by the legislative purpose of Article 90 of the Japanese Civil Code. ? Therefore, if it is believed that the provisions of Article 90 of the Civil Code itself are for the purpose of realizing a certain public policy, then some content that should be considered as "good customs" should play a role in realizing the purpose of the policy.
Among them, prohibition of prostitution and gambling are typical examples. As an important legal principle of modern civil law, the principle of public order and good customs plays a very important role in ensuring the general interests of the country, social moral order, coordinating various conflicts of interests, safeguarding social justice, protecting the weak, etc. It is also an important factor in the substantive fairness of society. The value pursuit and value choice of substantive equality1 are an institutionalized and rational restriction and restriction of individual freedom by society, and are also a powerful defense of the interests of the public. Because according to the traditional point of view, under the institutional framework of civil law, only private rights are involved. There is not and should not be a subject higher than the private subject, and there is no system and procedure for bringing together many interests into public interests. . The principle of public order and good customs makes up for this shortcoming by invalidating civil acts that violate public order and good customs and limiting freedom of contract and personal autonomy within the framework of the general interests of society and general moral concepts.
3. Institutional design of public order and good customs in my country
(1) Judgment criteria for public order and good customs. It is generally believed that what is judged by public order and good customs is not the behavior of the parties, but the legal behavior engaged in by the parties. Therefore, even if a party engages in conduct that is reprehensible, the legal conduct he or she engages in may be valid. On the contrary, even if the parties are well-intentioned, as long as the consequences of the legal act are unacceptable to society, the legal act may also be an act that violates public order and good morals. For example, there is a famous case in Germany: a wife filed a divorce lawsuit, and the wife withdrew her lawsuit after her husband made the following commitment: "The husband assumes the obligation not to carry out business trips or entertainment alone in the future." Although this commitment It is morally understandable to prevent the husband from committing further acts harmful to the marriage in order to preserve the marriage. However, the court held that this promise violated public order and good morals. The reason is that such a restriction on the husband's freedom of movement violates the law. The moral nature of marriage. 32
In order to distinguish the principle of public order and good customs from the principle of good faith, the concept of good customs should be limited to the scope of non-trading ethics, so that it can perform its own duties with the principle of good faith as the moral code of market transactions. . Similar to the principle of good faith, the principle of public order and good morals has the effect of filling legal loopholes. This is because the principle of public order and good morals includes the element of judge’s discretion and is extremely flexible. Once the People’s Court encounters some behaviors that disrupt social order and violate social morality that were not foreseen by the legislation in judicial practice, In the absence of corresponding prohibitive provisions, the principle of public order and good morals can be directly applied to determine that the act is invalid. This is clarified in Article 138 of the German Civil Code, Article 6 of the French Civil Code, Article 90 of the Japanese Civil Code, Articles 2, 17 and 36 of the Taiwan Civil Code of China and Article 7 of the General Principles of the Civil Code of my country. It stipulates that contracts or civil legal acts that violate public order and good customs are invalid.
(2) Measurement criteria for violating public order and good customs. According to foreign legal provisions, judicial practice and my country's specific reality, my country's public order and good customs system should consist of two components: one part is the principle provisions of the law, that is, the legal application requirements for public order and good customs in the form of basic principles of civil law through the Civil Code Make clear definitions. This part of the content of public order and good customs must be typed in judicial practice through precedents, that is, it must be specifically applied in judicial practice in accordance with the spirit of the legal principles of public order and good customs. This part of the content mainly applies to good moral behavior. The other part is to clearly define behaviors that violate public order and good customs in the form of separate civil regulations (i.e., substantive laws). These laws mainly include advertising law, trademark law, copyright law, patent law, anti-unfair competition law, etc. This section mainly applies to behavior that violates public order. Since behaviors that violate public order and good customs are highly evaluative and obviously uncertain, although public order and good customs can be refined through legislation, they still need to be specified and typed through judicial practice. Regarding the types of violations of public order and good customs in our country, Mr. Liang Huixing once summarized them into 10 types? . This summary basically covers the main forms of violations of public order and good customs in our country, but there are still some shortcomings: first, it does not cover all types of violations of public order and good customs; second, it is questionable to generalize certain behaviors that are not necessarily violations of public order and good customs. Such as violations of consumer protection and violations of labor protection. We believe that, based on the specific circumstances of our country, violations of public order and good customs in our country should first be divided into two parts: violations of public order and violations of good customs.
Among them, behaviors that violate public order should mainly include: (1) Behaviors that violate national security, national and social public interests, and social and economic order. For example, contracts with the subject of illegal activities, illegal sales contracts, escape contracts, tax avoidance contracts, etc. (2) Contracts that restrict economic freedom. For example, joint pricing agreements, non-competition contracts, etc. (3) Unfair competition. The term "unfair competition" was first used in the 1883 Paris Convention for the Protection of Industrial Property, which stipulates that any competitive behavior that violates honest management in industrial and commercial activities constitutes unfair competition. In our country, any competitive behavior that violates honest management and adopts fraud, hypocrisy and other means constitutes unfair competition. Such as counterfeiting, forgery, and contracts that induce others to breach the contract. (4) Monopolistic behavior. According to Japan's "Law on Prohibition of Private Monopolies and Ensuring Fair Trade", Article 2 (Definition), Paragraph 5: The so-called monopoly refers to a business operator, whether alone or in combination with other businesses, collusion, or any other means , excluding or controlling the business activities of other business operators, violating public interests, and actually restricting competition in a certain trading field. (5) Profiteering behavior. That is, the act of making huge profits through fraud, coercion, taking advantage of others' dangers, etc. Such as loan sharking, credit profiteering, sales profiteering, sales profiteering, etc. (6) Gambling behavior. The so-called "gambling" refers to the behavior of determining the gain or loss of property based on accidental winning or losing. Regarding this kind of behavior, the earliest provision in our country can be found in Article 855, Paragraph 1, of the First Draft of the Civil Code: "Debts cannot be incurred due to gambling or gambling, but if payment has been made due to gambling or gambling, no refund may be requested subsequently. "Although the current civil law lacks any explicit provisions on this, scholars generally believe that gambling is an act prohibited by law; debts arising from gambling are natural debts and have no right to claim. This is the so-called "gambling debt is not a debt." ; The repayment of gambling debts is a payment for illegal reasons, and no request for return is allowed according to law; the change of gambling debts into monetary loan debts is an illegal act, and the right to claim is still not obtained; the loan letter or collateral issued for gambling debts violates the law; Prohibitive provisions of the law shall be invalid, and no refund shall be requested because the payment was made for illegal reasons. In addition, gambling debts cannot be realized using court judgments, that is, public power, so they are just a natural debt. For violations of public order, confirmation of invalidity should be the basis of legislation. Behaviors that violate good morals mainly include: (1) Behaviors that are against human ethics and justice. Such as separation agreements between husband and wife, deprivation of inheritance rights for minors or heirs with no source of income, and actions that target certain organs, tissues, resources, images, etc. of a person. A more typical example is the buying and selling of human milk? And the behavior of buying and selling sperm and eggs? wait. Because this kind of behavior deviates from the shame, guilt, self-examination and the resulting value judgment of human behavior that humans have had in the name of morality. (2) Behavior that is degrading to human dignity. For example, a labor contract that excessively restricts personal freedom; a contract that uses the debtor's person as a mortgage; a contract that forces the debtor to work as a slave in the creditor's house to pay off the debt; a purchase and sale with the person or personality as the subject, etc. (3) Unconscionable trading behavior. Including behaviors that take advantage of others, behaviors that are obviously unfair, fraudulent behaviors, behaviors that express intentions with reservations, false statements and misrepresentations, etc. (4) Behavior that endangers family relationships. For example, an agreement for parents and children to live apart; an agreement for husband and wife to live apart in the future; an agreement to sever the parent-child relationship; an agreement for liquidated damages in a marriage relationship, etc. The newly emerged so-called "surrogate mother" agreements for pregnant women on behalf of others, as well as surrogate mother agency associations, also fall into this category. 33(5) Behavior that violates moral customs. It mainly includes behaviors that give people inappropriate associations or have unhealthy effects on people's minds. Such as the business behavior of deliberately pretending to be a traitor12, the behavior of using the anniversary of national humiliation as a selling point13; cruel animal fighting games, abuse of similar species or animals, abuse of food, etc.14; advertisements with pornographic or other unhealthy colors Behavior 15, Shanghai has investigated and dealt with similar advertisements16; and advertising behaviors related to sex, that is, "marginal advertising". Typical ones are advertisements for sexual products, advertisements for treating diseases, advertisements for birth control pills and condoms, etc. 17(6) Indecent behavior. The so-called "wind", according to the explanation of "Ancient Chinese Dictionary", is "wind teaching, customs". "poetry? Ghostly wind? "July Preface": "The Duke of Zhou was changed, so Chen Houji's Xian Gong's demeanor changed." "Book of the Later Han Dynasty?" "Fifth Lun Zhuan": "After Guangwu succeeded Wang Mang, he was quite strict and fierce in his administration. Due to this, his descendants became popular." The second refers to "custom".
Tao Zongyi of the Ming Dynasty wrote in his "Stop farming and record honest envoy Changhou": "This is also an end of thick customs, so I record it." The third refers to "the moral norms recognized in society". 34 At the latest in the "Book of Han", we can see the words "to transform the world with customs" ("Book of Rites and Music") or "both to offend the customs" ("Biography of Han Yanshou"), which can be used as both verbs and As a noun. The latter is transformed into the idiom "indecent to morals", which usually refers to the negative impact on social customs and education, and is often used to accuse men and women of abnormal relationships. 35 is still used in modern Chinese today. What we call "morality" today usually includes two meanings: on the one hand, it refers to customs and moral education, which refers to moral social norms that cannot be violated, such as "indecent". On the other hand, it is also related to sex and the relationship between men and women. It is both in line with common sense and some that goes against common sense, including the social norms, special cases, and conditions of all classes at the time. The so-called customs of a certain society and a certain period are usually the sexual morals and sexual concepts advocated by the ruling class at that time. Edward, the author of "A History of European Weather"? Fuchs believes: "The customary behaviors, customary concepts, and various regulations that regulate and restrict sexual life in each era are the most typical and vivid expressions of the spirit of that era. Every historical period, every nation and every class The essence of sex is most truly reflected in it. Sexual life, with its thousands of radiations, reveals the important laws and basic laws of life." 36 Those behaviors that are not in line with the current culture, actively or forced to break through the current culture. Behavior, often referred to as "indecent". Mainly including inappropriate sexual behavior, prostitution, for-profit escort behavior, etc. (7) Behavior that violates professional ethics. Professional ethics refers to the specific professional thoughts, codes of conduct and norms that people engaged in a certain profession should follow in the process of performing professional responsibilities. It is the embodiment of general social morality in specific professional activities, but at the same time it highlights the special moral requirements in specific professional fields. It is not only a standard requirement for the behavior of people in the industry in their professional life, but also the moral responsibility and obligation that people in the industry have towards society. The legal professional ethics that violate public order and good customs mainly apply to lawyers, accountants, tax consultants, teachers and doctors, etc. For example, lawyers must be loyal to the law, adhere to facts as the basis, use the law as the criterion, and practice strictly in accordance with the law; they must provide legal assistance to clients in good faith, with rigor and prudence, and with due diligence; they must keep state secrets and client information learned in the course of practice. Trade secrets and privacy of parties, etc. Teachers' professional ethics require that they should be gentle and elegant in their dress and behavior, and they should be well-groomed. For example, female teachers' skirts should not be too short, and their clothes should not be suspenders. Male teachers should not wear shorts, vests, and slippers into the classroom. This should be a basic principle and a teacher's obligation. Basic code of conduct. 18
(3) Legal consequences of violating public order and good customs. Different countries have different legal provisions regarding the legal consequences of violating public order and good morals. Although the Napoleonic Code of 1804 generally accepted the principle of freedom of contract, it still regarded observance of public order and good customs as a basic requirement for civil conduct. Article 6 of it stipulates: "Individuals may not violate relevant public order and regulations by special agreement. "The law of good customs." In the "Legislative Draft on Supplementing Private International Law Norms in the Civil Code" promulgated in 1967, this principle was expanded to the foreign-related field, and it was stipulated in the general principles: "Anything that is obviously related to the understanding of international relations." Foreign laws that are incompatible with public order may not be applied in France." Japan’s legal provisions on public order and good customs adopt a dual legislative system: acts that violate public order and good customs are invalid acts. In this regard, Article 90 of the Japanese Civil Code (Public Order and Good Customs) stipulates: “Those whose subject matter is a matter that violates public order or good customs” Legal acts are invalid. "For acts that are in compliance with public order and good morals or do not violate public order and good morals, the validity of the acts shall be confirmed in accordance with the law. In this regard, Article 91 (arbitrary provisions and expressions of intention) of the Japanese Civil Code stipulates: "The parties to a legal act have expressed their opinions in accordance with the law. If the meaning is different from the provisions of the law that are not related to public order, the meaning shall prevail. "Article 92 (Customs) stipulates: "If there is a custom that is different from the provisions of the law that are not related to public order, if it can be determined. If the parties involved in a legal act intend to comply with such custom, then such custom shall prevail. "In German law, if a violation of public order and good morals causes damage to others, corresponding civil liability shall be borne. Article 826 of the German Civil Code stipulates: A person who intentionally inflicts harm on another person in a manner contrary to good morals shall have an obligation to compensate the victim for the harm.
The provisions on public order and good customs in the current laws in Taiwan mainly include two levels: The first is the constitutional level, which mainly focuses on the constitutional protection of behaviors or rights that do not violate public order and good customs. Article 22 of the constitution stipulates: "All other freedoms and rights of the people Article 23 of the Constitution stipulates: "The freedoms and rights listed in the above articles are protected by the Constitution if they do not harm the public interest of social order. Except when necessary for the interests of the public, they shall not be restricted by law.” The second level is the civil law level, which specifically includes provisions in several aspects: First, whether it is in compliance with public order and good customs will be used as the basis for the application of civil customs and the validity of civil acts. Regarding the standard of whether or not, Article 1 of the Taiwan Civil Code stipulates: "If there is no provision in civil law, custom shall apply; if there is no custom, the law shall apply." Article 2 stipulates: "Customs applicable to civil affairs shall not be inconsistent with the public* **Limited to those with good order or good customs. "Article 17: Abandon. Restrictions on freedom shall be limited to those that do not violate public order or good customs. "The second is to stipulate that acts that violate public order and good customs are invalid. In this regard, Article 72 of the Taiwan Civil Code stipulates: "Legal acts that are contrary to public order or good customs are invalid. "Third, specific legal consequences are set for civil actions that are invalid due to violation of public order and good customs. In this regard, Article 36 of the Taiwan Civil Code stipulates: "The purpose of a legal person or its behavior violates the law, public order or good morals. In case of customs, the court may declare dissolution at the request of the competent authorities, prosecutors or interested parties. "Article 184, paragraph 1, stipulates: "Anyone who unlawfully infringes upon the rights of others intentionally or negligently shall be liable for damages. The same applies to those who intentionally cause harm to others by means that are contrary to good customs. "
For our country's legislation, we can appropriately draw on the legislative experience of Taiwan and stipulate it from two aspects: requirements and processing, that is, the validity of civil legal acts and the exercise of civil rights should be clearly stipulated in the future Civil Code. It is limited to those that do not violate public order and good customs; it also stipulates that civil acts that violate public order and good customs are invalid or their rights are not protected by law.
Since public order and good customs involve both legislative and judicial aspects, and mainly exist in the specific application of laws in individual cases. In this case, the role of judge's discretion becomes very important. Therefore, in addition to strengthening legislation in this area, we must also cultivate judges' legal awareness of respecting public order and good customs, and use trial activities as a way to enhance social civilization and social morality. Horizontal tools.