Research On The Invalid Reasons Of "Malicious Collusion"

Malicious collusion is a unique concept in civil law system in our country.By the General principles of the Civil Law of The People's Republic of China derived Contract Law of the People's Republic of China.Back to it's origin,this system was originated from the civil law of The former Soviet union which is root in the continent law system,simulation is a reason of the invalid civil behaviors or invalid contracts.In the judicial practice in our country,because of the ambiguity of malicious collusion and non-self-consistent,article fifty-two of the contract law of the People's Republic of China is difficult to apply in the judicial practice.The current our country is in the important stage of the socialist market economy construction,if the court cannot be accurately determined the effectiveness of the contract,will lead to a lot of invalid contract case quantity is high,will seriously affect the parties abide by the contract comply with the contractual meaning of binding,one of the parties to evade the contractual obligations will lead to the trading behavior can not get effective protection,further cause actor in market transactions mistrusted contract effectiveness,thus hinder the development of market economy?After check and analysis of the case,the author thinks that,the most prominent problem that malicious collusion as one of the legal reasons for our contract is invalid.On the eve of compiling a new civil code,malicious collusion cause a discussion in the scope of law science.The author For functional thoughts after the "Contract law" article 52 about malicious collusion in the provisions of the contract shall be invalid,based on the comprehensive research at home and abroad and analyzes related legal system and the existing research literature,combining case analysis Commenting on the existence of malicious collusion contract is invalid specification problem,to discuss Commenting on the enumeration rules produced by the fuzziness and practical difficulties In the judicial practice,hope to achieve the goal of the parties to a contract means effectiveness maximization,and protect parties' legitimate rights and interests of market economy and the trade order stability play a positive role.In the aspect of source,In this article the calculation cases are from real court case,article foreign theories involved most of the data on domestic scholars written translation and review related work,to some extent by domestic scholars doping personal theory in the translation process.On the research methods,Through the comparison of horizontal and vertical analysis,This article attempts to clarify the origin of Malicious Collusion system,On the horizontal level,Malicious collusion the theory of Malicious Collusion as an emerged theory in our country's legislative initiative,about it's research must be widely aid of the foreign related theory,experience and practice,therefore,will inevitably to our country existing in the research process of the invalid contract system comparing with abroad,From the vertical level,the theory of Malicious Collusion has its own development process,Invalid contract system reform in our country also has a practice process,thus,From the dimension of time to study is benefit for the object of study on the longitudinal considerations.This paper would dissect the malicious collusion system by literal analysis and systematic analysis,combine specific problems in the judicial practice,analyze the contradictions and Loopholes of malicious collusion through the legislative angle.summary of all,If we want to solve this problem,on the one hand,must be to start from the principle of private law subject equality,Eliminate state executive improper intervention of contract effectiveness;on the other hand to clear the scope of social and public interests,to national compulsory protection of public interests shall be clear legislative support.In terms of malicious collusion system's trade-offs,The author inspired by hui-xing liang,Wang liming,through the study of differences and relationship between two systems,support to replace them by false expression system.After the discrimination of “national benefit”“collective benefit”“third party's benefit”,propose some advises on legislation.At first,split national benefit and collective benefit,it means delete the content which was not suitable for private law to adjust,categorize the last part into social public interests.Secondly,split third party's benefit into a specific third person's benefit and none given third person's benefit.Naturally,because of the same definition,none given third person's benefit is social public interests.Through analysis of the simulation system,I propose to use the simulation system to protect a specific third person's benefit,after comparing the theories and methods,I think vest right of claiming cancellation to a specific third person is a preferable method.Besides,the civil law and the civil procedure law of our country hadn't dictate the statute of limitation about Invalid contract,after the discrimination of the nature of the right,I think it is better to use the statute of limitation than scheduled period.