Malicious Collusion To Damage The Interests Of A Third Party Contract Legislative Discussion

"There is malicious collaborattion causing damage to the interests of the State ofthe collective or of a third party", that is an important reason or limits for the void ofthe legal activities or the contracts stipulated in General principles of the Civil Law ofthe People's Republic of China and Contract Law of the People's Republic of China,In legal practices there are many circumstance where that the parties of thecontract impair a third party interests with malicious collaborattion and many thirdparties file suits against these malicious collaborattions,but few of contracts belong tothat kind have been affirmed nullity. The circumstance has been put into a spot light.The motion of the writer is to probe into the sticking point to the foregoing question.At the same time the main purpose is to give a suggestion that the legislation cancelthe regulation that there is malicious collaborattion causing damage to the interests ofthe State of the collective or of a third party.So there are three parts in this thesis,that is the legislative provision,thelegislative and demonstration analysis and the legislative suggestion.PartⅠintroduces the regulations on the contract that the parties impair a thirdparty interests with malicious collaborattion and the comments on these rules in thetheory circle. As refer to the legislative provisions on the contracts foregoing,somescholar proposed that we might as well use "mendacious expression" instead ofmalicious collaborattion,while the most scholars considered a third party interests inthe legislation as non-specific third party interest,then the contract is relatively nullityunder the condition that it impair a specific third party interests.PartⅡmainly analyzes contracts where the two parties have conspiredmaliciously to the detriment of the interests of a third party. The analysis is done fromfour aspects, i.e.., the subjective elements and objective elements of contracts, the legaleffects of contracts to contractual parties and to a third party. Legal concurrenceregarding contracts where the two sides have conspired maliciously to the detriment of the interests of a third party and the right of rescission in positive law is also beenanalyzed to conclude that the legislative regulations are not so reasonable.PartⅢpresents legislative suggestions. Based on methods of comparative law,this article holds that "malicious collaborattion" should be replaced by "mendaciousexpression" to regulate the legal flaw of intention expressions. Through detailedexplanations on connotations of the interests of the state, a collective, this article holdsthat the interests of the state should be incorporated into public interests, and that "theinterests of a collective" is not a legal term and should be erased from civil legislation.In addition to the above-stated that the interests of a third party should be the interestsof a non-specific third party, which is also a type of public interests, therefore, thisarticle suggests that in the future Civil Code Draft the independent provision that"those civil acts that are detrimental to the interests of the state, a collective or a thirdparty shall be null and void" should be abrogated to improve the regularization of thesystem of legal behaviors in our country.