公序良俗原则在中国近代民法转型中的价值
发布时间：2018-09-17 14:37
【摘要】：公序良俗是人类基于自然理性而产生的一种法律原则,清末制定《大清民律草案》时,中国首次引入了公序良俗的概念。中国近代法学家对公序良俗的价值和判断标准作了充分的阐述,北洋政府和南京国民政府的司法机关经常以判例的形式对那些有背于公序良俗的民事习惯作无效的判决,从此,中国传统的民事习惯如娶妾、买卖娼妓、典卖妻女、高利贷借贷利息等有背于公序良俗的法律行为均属无效。近代民法公序良俗原则的广泛适用,不仅为司法机关审理民事方面的疑难案件找到了一条重要的解决途径,还直接促使中国传统的民事习惯向近代民法转型。
[Abstract]:Public order and good custom is a kind of legal principle produced by human beings based on natural reason. When the Qing Dynasty draft Law of people was formulated at the end of Qing Dynasty, the concept of public order and good custom was introduced for the first time in China. The modern Chinese jurists made a full exposition on the value and judgment standard of public order and good custom. The judicial organs of the Beiyang government and the Nanjing national government often rendered invalid judgments on those civil customs that were contrary to public order and good custom in the form of case law. Since then, Chinese traditional civil customs, such as concubinage, prostitution, wife and daughter, usury loan interest and other legal acts contrary to public order and good customs are invalid. The extensive application of the principle of public order and good custom in modern civil law has not only found an important solution for the judicial organs to try difficult civil cases, but also directly promoted the transformation of Chinese traditional civil custom to modern civil law.
【作者单位】： 上海师范大学哲学与法政学院;
【基金】：上海师范大学第九期校级重点学科项目“法律史学”的阶段性成果
【分类号】：D923
[Abstract]:Public order and good custom is a kind of legal principle produced by human beings based on natural reason. When the Qing Dynasty draft Law of people was formulated at the end of Qing Dynasty, the concept of public order and good custom was introduced for the first time in China. The modern Chinese jurists made a full exposition on the value and judgment standard of public order and good custom. The judicial organs of the Beiyang government and the Nanjing national government often rendered invalid judgments on those civil customs that were contrary to public order and good custom in the form of case law. Since then, Chinese traditional civil customs, such as concubinage, prostitution, wife and daughter, usury loan interest and other legal acts contrary to public order and good customs are invalid. The extensive application of the principle of public order and good custom in modern civil law has not only found an important solution for the judicial organs to try difficult civil cases, but also directly promoted the transformation of Chinese traditional civil custom to modern civil law.
【作者单位】： 上海师范大学哲学与法政学院;
【基金】：上海师范大学第九期校级重点学科项目“法律史学”的阶段性成果
【分类号】：D923
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