Study On Identification Of The Contract Which Covers Up Illegal Purpose With Legal Form

In this paper, the author discourses that how to identify there is "the behavior with illegal purpose covered by legal form" in a contract, drawing lessons from the research of the domestic scholars, problems in the specific cases as the clue.In the judicial practice, cases which are about "the behavior with illegal purpose covered by legal form" are very frequent. In specific cases, there are a lot of issues: fistly,three are indistinct definition on legislative intent, meaning and tatbestand of "the behavior with illegal purpose covered by legal form" in many cases;secondly, "the behavior with illegal purpose covered by legal form" and "malicious collusion which will harm the interests of the state, the collective or the third person" can not be seperated in many cases; the third, "the behavior with illegal purpose covered by legal form" and "violating the mandatory laws, administrative regulations" can not be seperated in many cases.The term of "the behavior with illegal purpose covered by legal form" is the specialized term in legislation in our country, so only the domestic scholars do research on it.In the theoretical circle, the legal nature of "the behavior with illegal purpose covered by legal form" are controversial,with "the theory of hidden behavior", "the theory of circumvention behavior" and "the theory of mixed behavior". Different theories have different understanding of the tatbestand of "the behavior with illegal purpose covered by legal form", which has affectted the identification of the contract which covers up illegal purpose with legal form.The author lists many cases downloaded in the magic weapon of Peking University,and gives them an overview of types of cases and reasons of identification.This paper enumerates many cases to help us to understand the issues in the identification of the contract which covers up illegal purpose with pegal form fistly,then explains these issues in theory deeply,which are the respond to these cases.This paper analyzes "the theory of hidden behavior","the theory of circumvention behavior" and "the theory of mixed behavior", considering that "the behavior with illegal purpose covered by legal form" should have a combination of the hidden of behavior and the illegal of behavior. The tatbestand of the contract which covers up illegal purpose with legal form includes three points,the first is that the contract must have legal form, the second is that the contract must have a hidden illegal purpose and the third is that the parties must have hypocrisy expression. This paper defines "legal form" as that the contract is legal on the surface. When you exemine this contract have "legal form" or not,you should exemine that this contract is established according to law or not and this contract is accord with the related provisions on contract change or cancellation or not. This paper argues that the "illegal" of "illegal purpose" should be interpreted as " the violation of the effective specification of laws and administrative regulations"and the "purpose" of "illegal purpose" should be interpreted as "the subjective purpose of the parties to conclude a contract".So "illegal purpose" should be defined as that " the subjective purpose of the parties to conclude a contract is the violation of the effective specification of laws and administrative regulations",which can be learned or inferred by us through the behavior.Comparing "the behavior with illegal purpose covered by legal form" and "malicious collusion which will harm the interests of the state, the collective or the third person", I believe that the same point is that the parties subjectively is deliberate, existing conspires. And there are maay differences.The first is that the former doesn’t need to have legal form,but the latter needs to have legal form. The second is that the former doesn’t be required that meaning do not agree with said, the latter are requiresd that meaning do not agree with said. The third is that the former will cause injury consequence, which will harm the interests of the state, the collective or the third person,but the latter can be formed whether damage occurres or not. The fouth is that the former is invalid because of the injury consequence, but the latter is invalid because of the purpose of indirect violation of mandatory laws and regulation. The fifth is that the meaning to contracting of the parties of the former is true, but the meaning to contracting of the parties of the latter is not true.Comparing "the behavior with illegal purpose covered by legal form" and "violating the mandatory laws, administrative regulations", I think their same point is that they are both violation of the mandatory laws, administrative regulations. And the difference is that the former is directly illegal and the latter is indirectly illegal cowered by the legal form. Specifically, there is not hypocritical expression on the actor of former, which the actor of latter has. This paper argues that, exploring whether there is hypocrisy said in a contract belongs to the category of contract interpretation, but the contract interpretation is different from the traditional sense of contract interpretation. The provision of "contract law" the 125th can not apply to the contract interpretation of exploring whether there is hypocrisy said in a contract and we can’t go to infer the real meaning of the contract from the perspective of purpose of the contract.We can infer the real meaning of the contract on the basis of the behavior of the parties and mainly conclude whether there is any false representation in a contract from the comparition between the actual situation of the fulfilment of the contract and the text of the contract.Although there are many issues,such as whether the divorce agreement in the typical false divorce cases belongs to "the contract which covers up illegal purpose with legal form"or what we should do to infer subjective intent from the objective behaviors,which are worthy to explore,but the author have no more time to discuss. In the future research,the author will carry out more analytic demonstration in response to these issues.