Research On The Provisions Of Malicious Collusion In Civil Law Of China

"Malicious collusion" is a term unique to the civil legislation of China, which is first regulated in the "general provisions of the civil law". The provisions of malicious collusion take its source at civil law of the former Soviet Union, but also associate with simulation. The legislative intent of the provisions of colluded malicious is to regulate such legal acts whose motivation are illegal and to make negative estimation to such legal acts whose declaration of intention are false. But the terms of this appears to the contrary, that is, when those cleverly designed provisions involve too much, they become indistinct in the content and unreasonable in the logical structure, which also led to many problems in judicial practice when those provisions are applied. Therefore, to retain or cancel the provisions of colluded malicious must be carefully considered in the future Civil Code Draft.This paper takes the academic debate of the malicious collusion of the provisions as the starting point for the study. Firstly, the author analyzes the provisions of malicious collusion, to clarify the conditions and scope of the application of those provisions; then viewing from the function of the provisions of malicious collusion, the author clarifies the cause and effect of the provisions, and on the basis of the comparison between malicious collusion and simulation, the author points out that although there is a similarity between these two concept, they are different in many ways and can not substitute mutually; furthermore, in allusion to the difficulty of application of those provisions in judicial practice, this article puts forward suggestion on the introduction of the presumption rules to identify malicious collusion, as well as discusses concurrence between the provisions of malicious collusion and other provisions by empirical analyses; finally, based on introducing two kinds of legislative ideas of malicious collusion in the process of drafting Civil Code, the author presents legislative suggestions that "malicious collusion" should be replaced by "simulation" and the independent provision that "those civil acts that are detrimental to the interest of the state, collective interests and interests of a third party shall be null and void" should be abrogated.