Study On The Effect Of The Mutual False Declaration Of Intention To Bona Fide Third Party

On the occasion of conspiring to make false declaration,the parties’ deliberate behavior causes the inconsistency between the declaration of intention and the true intention.The parties both agree that the legal effect of the behavior does not occur.The law respects the party’s autonomy and makes a negative evaluation of false declaration of intention.However,when a false act causes the trust of a bona fide third party,trust protection and transaction security should be considered.In comparative law,there are two effect form of the mutual false declaration of Intention:absolute invalidity and relative invalidity.In the drafting process of the General Principles of Civil Law of China,the invalidity of the false declaration of intention shall not confront bona fide third party(hereinafter referred to as the non-confrontation rule)by a proviso clause,but the clause shall be deleted after,resulting in the question of how effective the false declaration of intention is against bona fide third party.This paper aims to study how to protect the reasonable trust of bona fide third party,and to analyze what kind of reliance liability the actor should undertake and its legitimacy basis.Based on the bona fide acquisition system,this paper discusses whether the non-confrontation rule should be applied in our country.The text of this paper consists of three parts.The first part is the basis of the full text.It combs the legislative process and academic understanding of Article 146 of the General Principles of Civil Law,summarizes the opinions adopted in the trial practice of such cases,and clarifies the controversial points.The second part analyses the liability of the actor who intentionally creates right appearance,and explores which is the right way to protect the bona fide third party.The basic structure of trust protection includes the facts of trust,the good-faith of the relative person and the imputability of the actor.It needs to be investigated one by one so as to determine whether or not the trust is established and the scope of the protection.Trust protection produces reliance liability,which can be divided into positive reliance liability and negative reliance liability.It is necessary to examine what kind of reliance liability the actor shall undertake on the occasion of conspiring to make false declaration.In the rules of mental reservation,the validity of declaration of intention and the interpretation rules of declaration of intention point to the effcetive result from different perspectives of the actor and the relative person.In the agency system,the rule of the declaration of intention can be applied by analogy to justify the positive reliance liability the principal undertakes in the circumstance of agency by estoppel and the positive reliance liability of unauthorized agent in the circumstance of unauthorized agency.There is a common idea in these two systems: if the actor intends to make false right appearance or false declaration of intention which results in relative person’s reasonable reliance,the actor should undertake the liability for performance.Therefore,on the occasion of conspiring to make false declaration,the actor who intends to create the right appearance should also bear the liability for performance.At the same time,the analogy application of estoppel rule prohibits the actor from denying the declaration of intention made before,which will damage the interests of bona fide third party.The third part mainly discusses whether there is conflict between the non-confrontation rule and the bona fide acquisition system in China,and the value of the non-confrontation rule.This part is the core content of this paper.Firstly,the non-confrontation rule can fill the gap of bona fide acquisition system.The bona fide acquisition system is based on the demonstrative principle of real right,which only applies to acquisition of real rights.It cannot be applied for a bona fidethird party who acquires other kind of rights.While the basic for the application of the non-confrontation rule is that the actor has strong imputability and does not require the right appearance.The logical starting point of the two is different.The third party can apply the non-confrontation rule to obtain creditor’s rights,which does not violate the differential treatment principle based on the differences of the nature of rights,and avoids unreasonably expanding the scope of application of other rules.Secondly,the rule of non-confrontation can be applied in the field of real rights.The principle of appearance of rights have blurred boundaries and dynamic system theory can provide a solution.In the field of reliance protection,the relative person’s reliance,the relative person’s disposition or investment,the actor’s imputability and other elements are complementary.When the degree of the actor’s imputation on the occasion of conspiring to make false declaration is sufficiently large,the third party can get protection while his reliance and investment do not need to be largely satisfied.Comparing with bona fide acquisition of the real right holder,the imputation of the actor conspiring to make false declaration is obviously stronger,and the third party should be given more superior protection,reducing the standard of the third party’s reliance factor and investment factor.Specifically,first,to confirm the good-faith of the third party,whether the actor’s intention is credible or not should be examined,while the third party’s obligation to investigate and verify the real right should be reduced;second,the third party have already met the basic requirements of investment by concluding new legal relations with the relative person.Transferring at a reasonable price should not be required;third,if the bona fide third party wants to obtain the real rights in the publication validity doctrine,he must finish the publication factor.But if he wants to obtain other real rights,he does not need to do so.The relationship between non-confrontation rule and bona fide acquisition system is special law and general law,so bona fide acquisition system should be applied first.