Conspire Hypocritical Act Research

One of the meanings of Conspire Hypocritical Act is defect legal act, whichintroduced in Germany Civil Law at the very beginning. This concept has a profoundinfluence on the later-on civil laws in other countries and regions so that theysuccessively made their own regulations of Conspire Hypocritical Act. There is nosystematic regulation for that concept in our civil law code, but with the regulationsof “malicious conspiracy” and “legal form concealing illegal intention”. There are notso many discussions on Conspire Hypocritical Act in theory circle as well except thatin the aspect of the regulation-designing, no research on its underlying value idea andpotency root. Germany scholar did the in-depth analysis on the potency root ofConspire Hypocritical Act and boiled down to party’s autonomy of the will and thefreedom of the will, regulated the Conspire hypocritical Act invalidation from respectof the “consensus” of the two parties. Meanwhile, in order to maintain the relianceinterest of the bona fide third party they also regulated that the Conspire HypocriticalAct party shall not oppose to bona fide third party via invalidation.In the circumstance that there’s no regulation on Conspire Hypocritical Act inour law code, most of the cases become the problems in the law field. Therefore, localcourts deal with the Conspire Hypocritical Act cases as “malicious conspiracy” and“legal form concealing illegal intention” cases which as a result makes the ConspireHypocritical Act cases without “malicious conspiracy” and “legal form concealingillegal intention” be treated unfairly, seriously harms the free will of private interestbetween the actor and recipient, causes the state coercive power unduly meddlesprivate law, crosses the “clear” boundaries it should keep, violates the Autonomy ofWill, Freedom of Contract in modern civil law. The “malicious conspiracy” and“legal form concealing illegal intention” that regulated by state coercive means havethe feature of rigidity which shows that legislative purpose is seriously denying theillegality of the acts. However, Conspire Hypocritical Act invalidation derives fromits hypocrisy feature which is not necessarily adjusted by using the severest evaluation in our country. Therefore the invalidation should be defined as relativeinvalidation, which alleviates the defects of invalidation, benefits the legitimateinterest appeal of the Conspire Hypocritical Act party and balances the interestconflict between the Conspire Hypocritical Act party and bona fides third party.The “China Civil Code Draft Proposal （General）” that made by Chinesescholars regulates the Conspire Hypocritical Act, which stirs up great disputes on itsreasonableness in law circle. It is generally considered that “malicious conspiracy”and “legal form concealing illegal intention” should be replaced by ConspireHypocritical Act. But there are essential differences among the three Acts: the first actcontains the value idea of free will; the other two are the severest evaluation by stateon exceeding law’s liberty circumscription, which embodies the coercive power ofstate. Except the essential differences, the forms are not the same as well-they aremore like crossing relationship instead of containing relationship. Therefore, theycannot be replaced each other. The proviso “Conspire Hypocritical Act party shall notgo against the bona fides third party by Conspire Hypocritical Act invalidation”doesn’t cause logic confusion and repeating structure. From the perspective ofprocedural law, the protection for the bona fides third party in this proviso is muchbetter than bona fide gain system and shall not be replaced with the System. Andthere are some big differences in range and extent of protecting bona fides thirdparty’s reliance interest–the proviso is more reasonable than bona fide gain systemand more conductive to fulfilling the reliance interest.