Author
Dr Ruiping YE
Organisation/Institution
Victoria University of Wellington
Country
NEW ZEALAND
Panel
Private Law
Title
The Principle of Public Order and Good Morals in China’s Civil Code Jurisprudence
Abstract
China’s Civil Code 2020 prescribes that parties in civil legal activities should not act contrary to public order and good morals (gongxu liangsu), and if so such acts will be of no effect (arts 8 and 143). Further, disputes could be resolved according to customs, provided that such customs are not contrary to public order and good morals (art 10). These provisions first appeared in the 2017 amendment to the then General Principles of the Civil Law. Since then, the principle of public order and morality has been written into a number of other statutes, regulations and departmental rules. The West also believe that “legal process ought to coincide with moral conviction” (C Mooney “Public Morality and Law” (1983)) and China is not the inventor of the principle of public order and good morals. Yet each society will have different views on what count as “public order and good morals”, which is not defined in any legislative instrument in China. This paper will examine Chinese court decisions that have articulated on public order and good morals. While earlier research have given general reviews of judicial application of this principle (eg, Y Deng “On the Judicial Application of the Principle of Public Order and Morality” (2024); C Chang “A research on the judicial application on public order and morality in China” (2016)), this paper will focus on family and property cases, including typical cases published by the Supreme People’s Court and other decisions published in the online judgments database. This paper will examine the extent of judicial discretion in employing the principle of public order and good morals, consider changing social environments of contemporary China, evaluate the lines between flexibility and certainty of law, and analyse the issue of the rule of law in China’s Civil Code jurisprudence.
Biography
Dr Ruiping Ye researches in the areas of comparative law, Chinese legal system, law and culture, land law and aboriginal land tenure, and has published extensively on these topics. Her book, The Colonisation and Settlement of Taiwan, 1684-1945: Land Tenure, Law and Qing and Japanese Policies (Routledge, 2018), examines the relationship between legal system, colonial policies and aboriginal land tenure changes from a comparative law perspective. Dr Ye earned her PhD and LLM (Distinction) from Victoria University of Wellington. She has been the recipient of a number of awards and fellowships, including Taiwan Centre for Chinese Studies Research Grant for Foreign Scholars, Dan Chan Fellowship and Australian Centre on China in the World Library Fellowship. Her PhD was part of a Marsden grant project (tenurial changes in the Pacific Rim in the 19th century, PI Professor Richard Boast) and she won a Victoria University of Wellington Postgraduate Research Excellence Award for work produced during the PhD period. Dr Ye has been admitted as a Barrister and Solicitor of the High Court of New Zealand, and was Senior Legal Officer at the New Zealand Council of Legal Education before joining the faculty. Before moving to New Zealand, she was qualified to practise law in China.
