The Study On Conspiracy Hypocrisy Of The General Principles Of Civil Law

Article 146 of the General Principles of Civil Law stipulates for the first time the false expression of will,and clarifies the rules for the validity of false meanings and hidden acts.In judicial practice,it is very common to have disputes due to the untrue expression of the parties' will,such as "false trading behavior","Yin and Yang contract" and a variety of "named XX,in fact XX" dispute.This article is based on the provisions of Article 146 of the General Principles of Civil Law,from the perspective of China's civil legal system and judicial practice,and analyzes the controversial focus and practical difficulties of false meanings application and interpretation,in order to find its applicable path and explanation method.First of all,this paper attempts to define the basic connotation and constituent elements of false expression of will by means of comparative analysis and legal interpretation,and puts forward two major controversies on the application of false expression of will,namely,the fact identification and legal effect of false expression of will.The false expression of will stipulated in article 146 of the General Principles of Civil Law refers to the "conspiracy hypocrisy" in the traditional civil law,which can be applied in the field of property law.However,in view of the fact that there are more norms of public law and principle in our country,it is not suitable to apply to the field of identity law.Secondly,the identification of false expression of will should distinguish false expression of will and malicious collusion,"to cover up the illegal purpose in a legal form" and circumvention act.In the case that the General Principles of Civil Law also stipulates false expression of will and malicious collusion rules,in order to avoid the meaningless intersection of the two rules,it is suggested that the judiciary interpret the subjective malicious collusion as the expression of true will,distinguishing between false expression of will and malicious collusion function and scope of application.In terms of meaning,whether it is true or not,false expression of will and circumvention act can replace the normative function of "to cover up the illegal purpose in a legal form" : if the meaning of the party is true and the "illegal purpose" violates the mandatory provisions,Article 153,paragraph 1,of the General Principles of Civil Law can be applied;if the meaning of the parties is inconsistent with the expression,it may be invoked in Article 146 of the General Principles of Civil Law to determine that the false meaning is invalid.The court should review the constitutive elements of the legal facts in a case and comprehensively review the constitutive elements of legal facts and strengthen the research on the classification of the legal facts of false will.Finally,the court should determine the legal effect of false will according to different situations.The false expression of will is invalid between the representor and the counterpart,but whether the false expression of will is invalid against the third person should comprehensively consider the illegality of the legal acts,the appearance of the rights of the representor,the strength of public trust and the degree of subjective trust of the goodwill third party and other factors.The hidden act is related to the false expression of will,but the effectiveness of the hidden act is independent;as for the related act of the false expression of will,it is necessary to determine its legal effect according to the specific circumstances.The key to judging the legal effect of false meanings is to use the explanation of expressed intention rules and the legal behavior penetrating review method.On the one hand,the court may,according to the provisions of Article 142,paragraph 1,of the General Principles of Civil Law,use various interpretative methods and examine various factors to explore the true meaning of the parties.On the other hand,the court can sort out the legal relationship of the parties from the whole transaction structure through the penetrating review of legal acts,and accurately determine the validity of various legal acts.