民法一般条款及具体化技术——以诚实信用、善良风俗的法理分析为中心.pdfVIP

Abstract Abstract AAbbssttrraacctt Chinaisatanimportantperiodin theCivil Codeenacted.generaltermsshould be one of the focus ofthis research, but Chinese scholarshave not given much attention to this, researchin thisareaarenotenough. Developedasalegislative technical methodto overcome the shortcomings of a statutary law means, general terms has its great advantages.Itislikeaholesconnecting cogensnormsand lawouterspacetoeachother, so thattheorderofsocialethics,moralityandotheraspectscanentertheereaofthelaw, by giving judges discretionary powers maintain its stability while adapting to social development. However, the general terms of extremely abstract and general, too vague, difficult to grasp, the frequent application of the law may endanger the safety and uniformity, damage the authority of law.Thus, it is particularly urgent and necessary to specify the moral standard to applicable concrete basis for the administration of justice by adding the value to it. Starting in the basic problems of thegeneral terms, the article exploresthespecific applicationofgeneralterms. Thearticleisdividedintothefollowingfourparts: The first part is a overview of the general terms, which describles the basic problem that thegeneralterms relatedto.Firstly,fromthetechnical attributesofgeneral terms as a way to overcome the limitations of statutary law, the article analyzes the objectivenecessity ofitsexistence.Secondly,thegeneralmeaning oftheprovisionswas analyzed. Finally, adoption of the concept of the general terms and adjacent comparative study to enhance the theoretical understanding of the general terms, paves awayforthelaterstudyofgeneralterms. The second part is recongnized rule of the general terms of different countries, mainly through listing countries law, including France, Germany, and Switzerland and otherre