Study On The Application Relations Between The Provisions Of Malicious Collusion And Cancellation Right Of Creditor

From the perspective of the rationality of institutional design,the creditor's right of cancellation and malicious collusion do not necessarily make different evaluations of the effectiveness of a juristic act.In the civil code era,the provision of malicious collusion in the general provisions of civil law should remain leads to the absolutely nullity of juridical act,while the legislator should reconsider the nature of the creditor's cancellation right in the contract part of civil code.The provision of malicious collusion is a subtype of the provision of contrary to public order and good morals.Its scope of application must be distinguished from other provisions that evaluate the validity of juridical act.The provision of malicious collusion can only be applied when an actor maliciously colludes with the opposite party to perform a juridical act to damage any other person's lawful rights and interests.The legislative intention of the creditor's right of cancellation is to maintaining the value of the debtor's liability assets.Cancellation is only a means to maintain liability assets,not the purpose of cancellation right.In the compilation of the contract part of civil code,it is desirable to stipulated that the creditor's right of cancellation has the nature of the right of claim and has relative effect,so as to avoid the exercise of the creditor's right of cancellation excessively undermining the security of the transaction.If the civil procedure law can make supporting changes,the exercise of the creditor's right to withdraw shall only lead to the nullity in the law of liability.Under the background of China positive law,the creditor's right of cancellation is a right of formation,and may make two different effectiveness evaluations of the same legal behavior with the provision of malicious collusion.Comparing the constitutive requirements of the two provisions,we could find that the objective elements are similar,but on the subjective elements,malicious collusion requires a higher standard of malice.In terms of litigation certification,the proof standard of malicious collusion is higher,which is the same as the proof standard in criminal proceedings;the presumption of facts can both be used to reduce the creditor's burden of proof;Courts may collect evidence with its authority if there is a possibility of malicious collusion.The legal consequences of the two provisions are different too.Because the scope of exercise of the creditor's right of cancellation is limited to the amount of creditor's debt,the application of malicious collusion rules is more conducive to the full realization of the creditor's rights.In the case of maliciously damaging the creditor's interests,the creditor may first file a lawsuit requesting confirmation of the invalidity of the legal act and request the court to collect the evidence ex officio.If this lawsuit is not supported,then a suit of withdrawal of creditors is filed.The court tried the case in accordance with the plaintiffs claim,but if the court found the debtor maliciously colluding with a third party,the court should confirm that the act was invalid.In the case of maliciously damaging the creditor's interests,the creditor may also initiate a lawsuit based on the Tort Liability Act and require the infringer to assume the tort liability.