On The Validity And Application Of The False And Hidden Act

The theory of false declaration of will is manifested in the legislation of many countries and regions.But in the traditional civil law theory of our country,the false declaration of will is one situation about the inconsistency of declaration-intention,including individual false will and conspiracy false will.However,there are no direct regulations in the Statute Law in the form of civil legal acts.The article 146 in the General Principles of Civil Law is the norm to stipulates the validity of false acts hidden acts for the first time in China.It establishes the rules that the civil juridical acts performed by an actor and the opposite party based on false declaration of will shall be null and void,and the validity of hidden acts shall be governed by the rules provided by in the relevant law.However,the General principles of Civil Law only make general provisions on the validity of such acts.In judicial practice,there are a lot of problems to define,validity cognizance and application of law about the false acts and hidden acts.Therefore,it is necessary to discuss deeply and analyze the system of false acts and hidden acts,to clarify the identification criteria and processing rules for them,and to further perfect their application in judicial practice.Before the promulgation of the General principles of Civil Law,there are no relevant provisions on false and hidden acts in our country's laws.Similar provisions are those in the General principles of Civil Law and the contract Law on malicious collusion and the lawful concealment of illegal puposes.Because of the differences and the practical needs of judicial practice with the two behavior systems,the General principles of Civil Law add false acts and hidden acts besides malicious collusion,which play an important role in filling the civil legislation of our country.Comparing with the absolute invalidity of malicious collusion and the legal cover-up of the validity of the illegal purpose,the invalidity of the false act is relatively invalid,while the effectiveness of hidden acts needs to be dealt with in accordance with the relevant legal provisions.The false declaration of will consists of two kinds of behaviors,including the false acts and the hidden acts under the cover of the false acts.The false act is the act that the ideographer conspires with the relative person for the false declaration of will and expects that it will not produce effect,while the hidden act is hidden under the false act which contains the inner true intention of both parties.The constituent elements of false act include conspiracy of both parties,objective existence of intention,inconsistency of intention and expression,and understanding of the inconsistency of declaration-intention of the parties;while the hidden act expresses the inner true intention of both parties,and the party concerned is the party of the false act.The constituent elements of hidden act include both an actor and the opposite party,the mutual intention to hidden inner intention of both parties and the hidden intention is not consistent with the superficial false will.The evaluation of false act is regarded as invalid,which based on the respect of party autonomy,the value concept of private law autonomy.The invalidity between the parties should not confront the bona fide third party,which is the safeguard for the trust interest and transaction security of the bona fide third party.If the law makes the act be an negative evaluation of absolutely invalid,it either violates the mandatory and prohibited provisions of the law,administrative regulations,or damages the interests of the state and the public interest.Thus,the relatively invalid rule of giving the right of option to a bona fide third party in an uninformed position is an amendment to pure private law autonomy,which can balance individual and social interests;while the validity of the hidden act cannot be simply and directly evaluated as either effective or ineffective,it should be judged according to the condition of whether the act is effective or not.Meanwhile,its effectiveness only restricts ideographer and relative person,and has nothing to do with the third party.The General provisions of the Civil Law does not provide for the effectiveness of a third party,so the judge can exercise discretion,but this paper think do not against the bona fide third party with the void of the false act between the parties,that is,the third party can claim validity or invalidity.This is a protection for the trust interests of the third party.However,not all third parties can apply the confrontation rules to be protected,but only those who have an interest with the object of the false act.The article 146 of the Civil Law is faced with the problems of the scope of application and the conflict application with the rules of malicious collusion.The false act can be applied to the unilateral act,the contract act and the real right act of the relative party.However,because of the particularity of the regulation field,the effect of the"yin-yang contract"in the field of construction engineering should be judged according to the judicial explanation issued by The Supreme Court.The article 146 and 153 of the General principles of Civil Law dissolve and absorb the act of masking illegal purposes in legal forms,which has been deleted from the General principles of Civil Law,and no longer applies the original legal provisions.And when there is a conflict of overlap of enactments between them with malicious collusion,the applicable legal rules can be chosen according to the principle of proximate cause.