Research On The Application Of Malicious Collusion System

"Malicious collusion" is a special system in China,which aims to protect the interests of the third party.During the drafting of the General Principles of Civil Law,the malicious collusion system competed with other systems on the extension,and all circles held a big controversy about its existence and abolition.There are quite a lot of provisions in the current law that deal with the words "mali collusion",and the ambiguity of the legislative provisions adds to the discretion of judges.From the two perspectives of current legal norms and practical jurisprudence,the paper analyzes the applicable status of the malicious collusion system,and finds that there are problems such as confusion of relevant provisions and different standards for malicious collusive behavior.The premise of the malicious collusion system is to clarify what is malicious collusion.The abstraction of malicious collusion often occurs in a situation that is actually contained but not included in the legal sense.It conducts a functional inspection of the malicious collusion,distinguishes it from conspiracy hypocrisy,fraud,fraud,and joint infringement,and clarifies the Civil Law.General Provisions Article 154 The location of malicious collusion.In accordance with the provisions of Article 154 of the General Principles of Civil Law,the civil presumption rules are used to analyze how to identify malicious collusion from the perspective of "behavior + damage" and clarify its connotation.It is determined that it has special characteristics to a certain extent.It should be based on the comprehensive consideration of the market economy free competition and the certification standard is high.The identification of malicious collusion will affect the choice of applicable order.In different "malicious collusion" situations,the dualization mode can be adopted when selecting the applicable law.Take Article 154 of the General Principles of Civil Law as the main line: to regulate the malicious collusion between malicious collusion actors or contract parties to harm the interests of others.The invalid evaluation only involves acts or contracts between malicious collusion actors;other special laws To supplement: In addition to the civil legal act of malicious collusion signing a contract,there are still acts of malicious collusion as a means of fraud,joint infringement,fraud,etc.,combined with the previous identification of malicious collusion,the special law has provisions.According to its regulations.Article 154 of the General Principles of Civil Law is invalid in the civil legal acts of malicious collusion,which is absolutely invalid because of violation of public order and good customs,and thus the subject of third party litigation is appropriate.The second review draft of the Contract Law(Draft)does not separately stipulate the invalidity of the contract.The validity of the contract signed by the malicious collusion will be governed by the provisions of Part VI of the General Regulations,and the current law will be discussed in conjunction with Article 59 of the Contract Law.After the invalidity of the responsibility,the third person can choose different ways according to the relationship between the malicious collusion and the actor.One is that in the case where the third party has not concluded a contract with the malicious collusion,only the contract between the actors can be invalidated,and the contractual validity between the malicious collusion is denied.If the interest cannot be realized,when the property is returned in accordance with Article 59 of the Contract Law,the property interest shall be identical to the property acquired by the party due to the contract,or the property acquired by the party shall belong to the third party.The other is that in the case where the victim has entered into a contract with a malicious collusion,due to the relative nature of the contract,the invalidity of the contract between the malicious collusion actors does not affect the contractual effectiveness between the third party and them.The third party has a flaw in its contractual effectiveness and can seek relief through other specific means.