Zhao (Southwest University of Political Science and Law)

Public order and good customs, as a restriction on freedom of contract, is an important system of modern civil law. It is the embodiment that individual interests obey social public interests and plays an important role in the construction of modern social civilization. However, whether in theory or in legal practice, China paid little attention to this issue. This paper first explains the relationship between public order and good customs and freedom of contract, then analyzes the legal provisions and theoretical progress of public order and good customs in major countries in the world, and finally puts forward some views on the improvement of the legal system of public order and good customs in China. The author believes that clarifying the related concepts and systems in theory is not only of great significance to perfecting the system of public order and good customs in China, but also of reference significance to the formulation of the civil code in China.

Keywords: freedom of contract, public order and good customs, legal regulation

Some people say that contracts, like God, are dead. As we all know, the complete and accurate contract law system built by 19 century was violently impacted in the 20th century, and great changes have taken place. This change is not caused by the internal development of contract law itself, but by the systematic "plunder" of the object of contract law by public policies such as anti-unfair competition law, environmental protection law, consumer rights protection law, labor law and business practices. The development of these special forms of public policies has brought many contents that originally belonged to the category of "contract law" into their own adjustment scope. As the opposite of individual freedom, the value pursuit of public interest and public order plays an increasingly important role in social life. The principle of freedom of contract is restricted by the principle of public order and good customs, and gradually gives way to the principle of public order and good customs. In fact, public order and good customs are not a new problem, nor is it a system that civil society and political countries evolved into today's sudden birth. In fact, as early as the French Civil Code and the German Civil Code, there were provisions that legal acts violating public order and good customs were invalid, just because the contract law of19th century regarded freedom as life and soul, and strongly advocated freedom of contract and autonomy of will, which led to a closed voluntarism contract law system. In this system, freedom is infinitely expanded, and freedom of contract is considered as one of the core contents of human freedom. With the emergence of modern capitalism, freedom of contract has formed a complete value system based on humanitarianism and rooted in free commodity economy. It is also based on the completion of this value system that freedom of contract is promoted to one of the three basic principles of capitalist civil law. After entering the 20th century, personal interests gradually gave way to social public interests, and public order and good customs increasingly restricted personal freedom, thus making freedom of contract, the highest principle of contract law formulated in19th century, exist in name only or decline gradually.

First, the basis of freedom of contract and its impact on social economy

(A) the philosophical basis of freedom of contract. The philosophical basis of freedom of contract is the humanistic thought that swept across Europe. Humanism, which originated in Italy in the14th century, is a kind of outlook on life and world advocated by the bourgeois Enlightenment against the rule of Catholic theology. Humanism is people-oriented. It preaches human freedom, equality and rights, opposes autocratic monarchy and feudal hierarchy, liberates people from their dependence on God and becomes people with independent personality and free will. John Mill believes that complete personal freedom and full personality development are not only related to personal happiness, but also one of the main factors of social progress. The sense of freedom drives human beings to engage in purposeful activities aimed at developing their abilities and promoting their personal happiness. 1 Kant brilliantly expounded freedom: "Freedom is independent of the compulsory will of others, and according to the universal law, it can coexist with the freedom of all people. This is a unique, primitive and innate right of everyone because of his humanity. "Furthermore, Kant put forward the social ideal of freedom, equality and autonomy for all, and thought that in order to realize this ideal, the role of the state should be limited to the maximum extent.

Individualism and personality development are twin brothers born with liberalism. Enlightenment thinkers believe that only they care about and understand their own interests most, so it is natural that individuals have absolute freedom to control their will and behavior. Starting from individual behavior is the starting point of human economic and political activities as a whole. As a collection of individuals, society cannot exist without the full development of individuals. Enlightenment thinkers' thoughts on personality independence, freedom, equality and rights laid the philosophical foundation of ideas and principles such as private law autonomy, will autonomy and freedom of contract. People have also completed the transformation from identity to contract. As far as the contractual relationship is concerned, as long as both parties agree to the meaning reached through consultation according to their own independent will, no one, including state public rights, may interfere or infringe. The main reason is: "According to the traditional theory, individuals are the best defenders of their own interests. Since the contract is concluded according to the free will of the parties, the appropriateness of its contents can also be guaranteed. " three

(B) the economic soil of freedom of contract. The principle of autonomy of private law in law is closely related to the thought of free economy in economics. In the period of free capitalism, commodity economy has been fully developed in free competition, and market rules are to modify economic life spontaneously with free competition. The development of commodity economy, the gestation and development of market economy and the bourgeois revolution that followed have realized the first social transformation of human society from agricultural era to industrial economy era. At this time, productivity was greatly improved and social wealth was unprecedented. In order to protect private property from infringement, the bourgeoisie put forward the slogan of "inviolability of private property" and improved the ownership system in civil law accordingly. This legal premise and foundation promotes the acceleration of commodity circulation and frequent trading activities, thus making the market gradually become the center of economic life and the basic link and leading means of resource allocation. Adam, master of classical economics? Smith paid full attention to the great promotion of free economy to social and economic development, and excluded the country from economic life. He believes that every economic man is guided by an invisible hand to promote a purpose that does not belong to his original intention when pursuing his own interests. So the best economic policy is economic liberalism. Everyone can compete freely on an equal footing, which can not only promote social prosperity, but also satisfy personal interests. The task of the state is to protect free competition, not to interfere with it. Adam. Smith first affirmed the self-position and value of the market subject in the market, and assumed that the market subject was "economic man". As an economic man, "everyone is constantly trying to find the most favorable use for the capital he can control." Everyone can fully promote the maximization of personal interests according to the interest-driven mechanism, and then ultimately promote the maximization of social wealth and interests. "This time, as in many other occasions, he was led by an invisible finger and tried his best to achieve a goal he didn't want to achieve. Nor will it cause harm to society because things are not intended. He pursues his own interests, which often enables him to promote the interests of society more effectively than he really intends. " Therefore, the law should protect the equal status among market participants, the free expression of the parties and the order of free competition. Contract has a strong utilitarian color of equality, freedom and secularity, which represents almost all the characteristics of commodity economy. Freedom of contract has found the most suitable living soil in the market economy, and it also provides a good legal guarantee for market participants to enter into contracts in the spirit of self-pursuit and self-responsibility in order to seek the greatest economic benefits.

Although the concept of freedom of contract originated from Roman law with equality and autonomy of private law as its ultimate concern, it exists only as an ideal realm of Roman law to a great extent. Because in the hierarchical society of emperors and subjects, masters and slaves, nobles and civilians, it is impossible to truly realize freedom of contract. Enlightenment thinkers introduced the theory of freedom of contract into political society with extraordinary imagination, and put forward the theory of "social contract" full of wisdom for the theory of "divine right of monarch" "In the natural state, although everyone can enjoy freedom and property at leisure, they are unable to provide security for these rights, so people enter into a contract to establish a country governed by the government, so that the state can provide security for each contracting party." To some extent, in the era of free economy, "contract has long been more than just a means of trading, it has become a way of life of human beings, leading people's thinking mode. As a belief and a cultural tradition, it has become a real force in real life. It is in this sense that the market has the function opposite to public rights. " Freedom of contract, as the soul and life of contract, has the same relationship with mind and body. Without freedom, the contract will become a "walking corpse" without soul. Therefore, defending freedom of contract is not only the highest principle of modern civil law, but also the constitutional basis of modern bourgeois countries.

(3) The restriction of freedom of contract and the appearance of public order and good customs. In order to consolidate the achievements of bourgeois revolution, France, Germany and other countries have compiled civil codes, taking autonomy of will and freedom of contract as the core of the whole contract law. According to the principle of autonomy of private law, market economic activities and other civil activities should be decided by the parties in an equal position through free consultation, and the state shall not interfere unless there are legitimate and significant reasons. This has played an important role in promoting and guaranteeing free competition and promoting capital accumulation in the early days of capitalism. However, with the transition from free competition to monopoly, the organic composition of capital is gradually improved, and social wealth is increasingly transferred to a few large enterprises. Large enterprises take advantage of capital, technology and marketing to control small and medium-sized enterprises and consumers and sign some unequal contracts. The essence of freedom of contract is gradually lost, and the polarization and opposition between the rich and the poor are intensified. This not only destroys the competition order, but also harms the interests of social groups. Equality, individual autonomy and freedom of contract in the field of private law seem to be unworthy of the name. The "invisible hand" respected by capitalist countries is increasingly powerless to various economic crises caused by the defects of the market itself. So people gradually wake up from the fanaticism of absolute individualism and free market, and individualism is also sublating itself, realizing that individuals can't really exist independently of society, and economic laissez-faire can't bring the greatest benefits and development to the whole society. Absolute personal freedom and pursuit of personal interests will harm the interests of others and vulnerable groups, and will destroy the environment and resources. Bodenheimer thinks: "The rational voice tells us that in order to adapt our own needs to those of others and make public life meaningful, it is necessary to impose certain moral restrictions and legal constraints on personal behavior." Therefore, individuals should obey society, and freedom should also be freedom that does not violate social order. The state must intervene in economic life and expand the scope of social control. So Keynes's theory of state intervention began to occupy a dominant position in the social and economic life of capitalist countries. Accordingly, value judgments such as "public interest" and "public order" began to step onto the stage of private law, and began to evaluate and revise the self-responsibility mechanism of private law autonomy. Freedom of contract began to be more restricted, because it touched the inherent defense line of social public interests. In fact, any boundary of freedom is based on the condition that it does not harm the public interests of the whole society, and the boundary of freedom of contract is no exception. /kloc-the freedom of contract in the 0/9th century was sanctified because in the early stage of capitalist development, the problem of using freedom of contract to harm the public interest was not very prominent. However, freedom of contract is bound to be subject to more restrictions in the 20th century, because it touches the inherent defense lines of many social welfare. The state has stepped up its intervention in consumer protection, labor relations, anti-unfair competition, monopoly, environmental pollution, natural resources protection and social public goods. Since 1930s, legal policy, as a synonym of public interest, has started to enter all fields of private law, including contract law? Contract activities are closely linked with national policies, thus completely breaking the absolute principle of autonomy in private law. Due to the publicity of private law, public order and good customs are established as the general rules of contract law, which have the same legal effect as the principle of good faith. According to this principle, only under the premise of not violating public order and good customs can a contract achieve the expected legal consequences of the parties. Of course, "public order and good customs" as a basic legal principle is not only the product of modern civil law. In fact, as early as the sixth article of the French Civil Code 1804, it was clearly stipulated that individuals should not violate the relevant public order and good customs with special agreements. However, in the era of free economy that advocates absolute individualism and liberalism, public order and good customs are only exceptions to the principle of freedom of contract, and the scope of application is narrow, so it is impossible to go to the historical foreground and occupy an important position. However, with the strengthening of state intervention, liberalism has been criticized, and the legal thought that individual freedom must obey social justice and social welfare has a great influence. The principle of public order and good customs has finally been reevaluated. "It has become the basic principle of modern civil law and has the important function of safeguarding the overall interests of the country and society and general moral concepts." 10 public order and good customs have become the basic principles governing the whole field of private law, not just the freedom of contract such as the exercise of rights, the performance of obligations, the boundaries of self-relief, and the interpretation of legal acts. It belongs to the scope of the principle of public order and good customs. 1 1

Second, the concept of public order and good customs and its application in various countries

(A) the concept of public order and good customs and its main contents. Public order and good customs are the general names of public order and good customs. In the relevant cases in Germany, public order and good customs are expressed as "the etiquette consciousness of all fair and just thinkers." 12 "Public order and good customs" includes public order and good customs. Public order and good customs refer to the general interests of the country and society, and good customs are good habits. Academics generally think that they refer to the general morality necessary for the existence and development of society and the country, and are the minimum ethical requirements respected by a particular society. Mr. Shi Shangkuan pointed out that public order and good customs are mostly in the same scope, and sometimes they are obviously different, which is also very difficult. The only one is from the external social order, and the other is from the internal moral concept, both of which aim at the benign development of the social country and invalidate all legal acts that hinder this development. However, good customs are not completely in line with public order. Some people violate public order and good customs, while others violate public order and good customs. In the modern market economy society, its main function is to safeguard the universal interests of the country and society and universal moral concepts. The French Civil Code 1804 stipulates public order and good customs for the first time. Article 6 of the law stipulates: "An individual may not violate the law on public order and good habits by special agreement". Since then, the civil codes of German, Japanese and other countries and Taiwan Province Province of China have made clear provisions on public order and good customs. Article 7 of China's General Principles of Civil Law stipulates that civil activities should respect social morality and must not ... disturb social and economic order. The social morality and social economic order here also have the meaning of public order and good customs.

According to the practice of most countries, the measurement standard of public order and good customs can be summarized as the principle of "social appropriateness" or "social legitimacy", and there is no difference between them in practice. However, there are still differences in value orientation and adjustment methods between public order and good customs. First, the legislative basis of the two is different. It is generally believed that "public order and good customs" focus on the social order of the country, and "good customs" focus on social morality. Second, the normative contents of the two are different. "Public order and good customs" are usually equivalent to mandatory norms or mandatory legal order, and the main function of "good customs" is to maintain social moral norms. Third, their scope of action is different. In the past, we paid more attention to the issue of "good customs", and regarded the "social appropriateness" or "social legitimacy" pursued by good customs as the main content of public order and good customs. However, modern countries pay more attention to the legal adjustment of "public order" because public order protects the interests of society more directly and plays a more obvious role.

Public order and good customs can be classified according to different standards, and can be divided into legal type and referee type according to their different forms of expression; According to different purposes, it can be divided into basic rights protection type and policy realization type. (1) regulating type and judging type. There is no doubt about the legal type of "public order", but the question is whether there is a type of judgment in "public order". Some viewpoints equate "public order" with mandatory norms, which is biased. Although public order mainly exists in direct legal provisions, it does not rule out the existence of adjudicative public order. Similarly, there are two forms in Good Customs. For example, although prostitution, gambling, etc. They are all related to "good customs", because there are laws and regulations with punishment content for these behaviors, which can be said to belong to the legal type. (2) Basic rights protection and policy realization. "Public order" mainly belongs to the protection of basic rights, but there is also a public order realized by policies. There is no dispute about the protection of the basic rights of "good customs" for two reasons: first, if the "good customs" in society are understood as legitimate moral norms, it can be said that it is due to the existence of moral norms related to the protection of basic rights. For example, it is these fundamental moral norms such as "don't kill" and "don't steal" that override the position of protecting other people's life and property rights and other basic rights. Secondly, it is very important that not all proper moral norms can become "good customs" in society. According to Japanese scholars, whether these moral norms become "good customs" can only be decided by the legislative purpose of Article 90 of Japan's Civil Law. ? Therefore, if we consider that the provision of Article 90 of the Civil Law itself is to realize a certain public policy, then what should be regarded as a "good habit" should play a role in realizing the policy purpose. Among them, banning prostitution and gambling is a typical example. As an important legal principle of modern civil law, the principle of public order and good customs plays a very important role in safeguarding the overall interests of the country, social moral order, coordinating various conflicts of interest, maintaining social justice and protecting the weak. Is it also the value pursuit and value choice of social essence fairness and equality? It is the restriction and constraint of society on the institutionalization and rationalization of individual freedom, and it is also a powerful defense of social public interests. Because according to the traditional view, under the institutional framework of civil law, only private rights are involved, there is no subject higher than private subjects, and there is no system and procedure to pool many interests into public interests. The principle of public order and good customs just makes up for this defect. Through invalid civil acts that violate public order and good customs, the freedom of contract and personal autonomy are limited within the framework of general social interests and general moral concepts.

(2) The application of public order and good customs in the laws of various countries. The legal provisions of Germany, Japan, France and Britain are the most representative of the public order and good customs system that appeared in the19th century. The following are introduced respectively:

1. Public order and good customs system in German law. The system of public order and good customs in Germany is mainly stipulated in the Civil Code. According to article 138 of the German Civil Code, "(1) a legal act that violates good customs is invalid. (2) In particular, a legal act is invalid if he makes use of others' compulsion, inexperience, lack of judgment or obvious weak will to conclude an agreement or provide property benefits for himself or a third party, and such property benefits are obviously unbalanced to the payment. "Compared with the provisions of other countries, this provision of German law has the following characteristics: First, there is only the concept of good customs in the German Civil Code, and there is no concept of public order. Second, clarify the provisions on profiteering. So what is the reason why there is no concept of public order in German law? In fact, this concept first existed in the first draft of the German Civil Code, and its article 106 not only stipulated public order and good customs. However, during the discussion, the concept of public order was severely criticized by scholars. This is because there was no concept of public order in German common law before the draft, and this concept in the draft was borrowed from the French Civil Code. However, German scholars believe that the concept of public order in French law is uncertain, which is inconsistent with the rigor and accuracy of the legal concept advocated by German law, so this concept was not adopted when the German Civil Code was adopted. The concept of good customs originated from Roman law, and German common law scholars have a deep understanding of it. Since the German Civil Code was enacted, the initial sense of language shows that morality is the core, including the principles of business freedom and human rights, and can also be covered as a moral issue. This is a very inclusive concept. 13 in the case of Germany, the violation of good customs is generally based on the "moral sense of fair and just thinkers" and is discretionary by the magistrate. Taking German law as an example, there are mainly the following kinds of behaviors that violate good customs: the behaviors that violate public order and good customs in German civil law mainly include: (1) the behavior of setting excessive guarantee, which means that creditors ask debtors to keep more property for themselves than they need to satisfy their claims. (2) Acts endangering other creditors. (3) The behaviors that bind the debtor are typical, such as binding the debtor's freedom of behavior and excessively restricting the debtor's legitimate business activities. (4) violation of professional ethics. According to German judicial precedent, it is unethical for lawyers to agree to charge a certain percentage of winning profits. The reason is that if lawyers have their own economic interests in the litigation results, their status as judicial organs will be jeopardized. 14(5) the act of establishing sexual obligations through legal acts. Such as contracts with paid sexual intercourse as the content, that is, prostitution, showing sexual behavior as a profession, etc. (6) Incentives for breach of contract. That is, the actor deliberately lures the debtor into failing to perform his legal obligations. (7) profiteering. Mainly includes credit profiteering, that is, the two sides agreed to use a particularly high interest rate for consumer loans or other credit; Sales profiteering; Rent profiteering. 15(8) Other acts that violate good customs, including escape assistance contract, environmental violation contract, inducing others to break the contract, conditional support contract concluded between husband and wife, disabled person's will, contract of giving birth by borrowing abdomen, invalid guarantee behavior, etc.

Different from other countries, there is a special clause in the German Civil Code for profiteering. The reason why this provision was made was mainly related to the economic situation in Germany at that time. 65438+ Germany abolished the legislation restricting interest on the basis of economic liberalism in the 1960s, and implemented the interest rate liberalization policy, which led to the agreement on monetary consumption and lending with extremely high interest rates. Credit profiteering has become a serious social problem, causing widespread social dissatisfaction. With the relevant provisions of German criminal law prohibiting profiteering, it is necessary to provide relief for those who have suffered losses in private law. It is in this context that the prohibition of profiteering is written into the civil code as the content of good customs. In recent years, due to the continuous expansion of the concept of good customs, the norms contained in this principle are also diversified. The modern concept of good customs includes two levels: (1) legal norms about morality and ethics; (2) the legal norms with light moral color. Namely, the principles and values in the current legal order. Here, many scholars believe that this is actually the rebirth of the concept of public order. They believe that the scope of good customs itself should be limited to the fields of sexual morality and family morality, order public order can be understood as the expression of the principles and systems of the existing legal order according to the meaning of French law, especially considering the constitutional order as the center. Therefore, many scholars call for adding the content of public order and good customs in 138, so that public order and good customs can assume different functions respectively.

2. The system of public order and good customs in French law. Different from German law, French law stipulates that public order and good customs are juxtaposed. Article 6 of the French Civil Code stipulates that an individual's agreement shall not violate the provisions of Article 1 133 of the Law on Public Order and Good Customs: it is illegal because the law prohibits or violates public order and good customs. Article 1 13 1 stipulates that debts based on illegal reasons are invalid. The biggest feature of French theory of public order and good customs is to design the whole system of public order and good customs with public order as the center. In other words, it strengthens and expands the concept of "public order", thus forming its own complete system of "public order theory". ? French scholars believe that public order can be divided into two forms: classical political order and modern economic order. Political public order is a public order that stands on the standpoint of individual social superiority and defends against the infringement of unrestricted freedom of contract on the interests of major social organizations, countries and families. This public order can be divided into: (1) public order about national interests; (2) Public order of family interests; (3) Moral public order. Among them, moral public order and good customs include: agreements that violate personal dignity, such as contracts prohibiting marriage and remarriage; Agreements to seek illegal benefits, such as gambling contracts, house sales or lease contracts, etc. for the purpose of opening prostitution places; Violation of sexual morality, such as illegal cohabitation agreement and gift agreement between cohabiting men and women. The third kind of moral public order and good customs actually stipulates the content of good customs. 16 shows that the theory of public order and good customs in French law actually takes the concept of good customs as the content of public order and good customs related to morality. Economic public order is a public order that adjusts the contractual relationship of the parties to a contract and appropriately restricts economic freedom. Its manifestation is that the state intervenes in the contractual relationship between individuals. According to the purpose of state intervention, economic public order can be divided into "public guidance order" and "public prevention order". Guiding public order is a concept associated with controlled economy, which aims to implement some national economic policies and conditionally incorporate individual contracts into national macroeconomic policies. Typical public order of price supervision. Protective public order is a public order to protect workers, lessees, consumers and usurers. For example, the supervision of usury, commercial credit and consumers' right to know. 17 because the guiding public order pursues the interests of the whole society, and the protective public order pursues the interests of some individuals (the weak). Therefore, in French theory, violation of guiding public order in political public order and economic public order is regarded as absolutely invalid, while violation of protective public order is regarded as relatively invalid. This is more conducive to the full protection of the weak. 18

3. Japan's public order and good customs law. When Japan formulated its civil code, it also had a heated debate on whether to retain the concept of "good customs", and finally decided to use the concept of public order and good customs. Article 90 of the Japanese Civil Code stipulates that legal acts that violate public order and good customs are invalid. The most outstanding contribution of Japan's theory of public order and good customs is that scholars, represented by my wife, Mr. Rong, have scientifically classified behaviors that violate public order and good customs, correctly distinguished public order and good customs, and defined the concepts of public order and good customs respectively, providing reference for judges to judge related cases. This is of great significance to the appropriateness, stability and predictability of the implementation method. Among all the standards for dividing public order and good customs, the most representative one is the so-called "my wife type"-the standard established by my wife Rong. My wife Rong's definition of public order and good customs is: public order refers to the universal interests of the country and society, and good customs refer to the universal moral concepts of society. These two concepts can be classified as "social appropriateness". Regarding the types of violation of public order and good customs, my wife Rong summed it up as: (1) violation of human relations; (2) acts that violate the concept of justice; (3) take advantage of people's danger and seek illegitimate interests; (4) Extreme restriction of personal freedom; (5) Restricting business freedom: (6) Disposing of property that is the basis of survival; (7) major lucky shooting behavior. 19 in addition, in the concession law, inventions harmful to public order and public health are also regarded as reasons for not granting concessions.

Although "my wife type" has long been accepted and used as a classic summary by academic circles and judicial practice circles, with the changes of the times, social situation and legislative content, the meanings and contents of concepts such as "human relations" and "justice" are also changing. The legal circles have re-examined the types of public order and good customs, and made a modern revision of "my wife type". Among them, Professor Micang's new dichotomy is more noticeable. He divided public order and good customs into modern public order and good customs, quasi-modern public order and good customs and classical public order and good customs, and listed their representative examples. The types of human relations are gradually decreasing, and the types of economic transactions, labor relations, administrative relations and fraudulent commercial laws are gradually increasing. The criteria for judging public order and good customs have also changed from "human relations" to the pursuit of transaction justice and the adjustment of the interests of the parties. Among them, it is particularly striking to introduce cases related to profiteering, obstruction of competitive transactions, improper contract payment and consumer protection into the field of public order and good customs. 2 1

4. The system of public order and good customs in English law. Public order and good customs are not only unique concepts and systems in civil law countries, but also widely used in common law countries. In Britain, the concept equivalent to public order and good customs is public policy, which first appeared in contract law, and its main purpose is to discuss the illegality of contracts. /kloc-in the second half of the 0/8th century, a large number of cases of denying contract relief on the grounds of public order and good customs (or equivalent concepts) appeared. The basic expressions are "illegal agreement", "violation of general legal principles" and "violation of good customs". These contracts have no legal effect. These cases show that although the principle of freedom of contract should be maintained, when the content of contract is harmful to social interests, contract cannot be affirmed by society. This concept constitutes the cornerstone of British public order and good customs. Moreover, in a large number of cases about public order and good customs in British contract law, some cited the "Bonny Morality" theory in Roman law, which is also an obvious example of the influence of English law on Roman law. /kloc-After the 0/9th century, with the gradual systematization of British contract law, the basic outline of the concept of public order and good customs became clearer and clearer. f？ Pollock divided the reasons for determining the illegality of a contract into three types: (1) violation of positive law; (2) Violation of morality and good customs (morality and