Research On The Collusion Hypocritical Expression

China's the General Provisions of Civil Law first confirmed the rule of the collusion hypocritical expression in domestic legislation,it has improved the construction of legal action effectiveness system in our country and provides a clear legal basis for resolving the disputes of false legal acts in various fields.In order to normalize the application of collusion hypocritical expression,it is necessary to understand the basic principle of collusion hypocritical expression,including the theoretical basis and constitutive elements of collusion hypocritical expression,the relationship between collusion hypocritical expression and hidden behavior,and the protection of the rights of a bona fide third party.First of all,the theoretical basis of collusion hypocritical expression lies in the principle of private law autonomy.Its invalidity is because the expression is inconsistent with the real intention.Neither the actor nor the other party has the intention to be bound by the expression of intention.Secondly,there are "three elements" theory and "four elements" theory for the constitutive elements of the collusion hypocritical expression.By analyzing the inconsistency between the two propositions,it can be found that the "three elements" theory has accurately expressed the core elements of the collusion hypocritical expression.Based on the theoretical basis and constitutive elements,the collusion hypocritical expression means that the actor and the relative person make false expression of intention,create the illusion that a legal act is valid,and in fact do not pursue the legal effect of the legal act.At the same time,it should be made clear that the collusion hypocritical expression and the hidden behavior cannot be confused,the two are different concepts,there is no hidden behavior necessarily behind the collusion hypocritical expression.Finally,the collusion hypocritical expression is carried out by the actor and the other party,but its invalid legal effect may damage the rights of a bona fide third party.Japan and Taiwan of China have stipulated that conspiracy hypocritical invalidity should not be used against a third party in good faith,but the General Provisions of Civil Law in China have deleted the non-confrontational rule in the draft.From the point of view of the comparative law and the construction of China's legal system,the deletion of non-confrontational rule is suitable for the formalism of China's real right change system.The protection of rights of a bona fide third party should be treated differently based on the difference in the nature of rights,so as to form a protection system of the third party in good faith based on the bona fide acquisition system and the general rules of trust protection.By collating and analyzing the data of 101 cases in the database of "JU Fa Cases",which are judged according to article 146 th in the General Provisions of Civil Law from January to June 18 th,2019,the common forms of collusion hypocritical expression can be roughly summarized into three categories,namely,the actor and the counterpart sign a contract that representation does not accord with fact,sign a yin-yang contract,and completely make up a behavior.In the dispute of guarantee-type sale contract,there are not a few cases in which the judge holds that the sales contract is invalid because of the collusion hypocritical expression.But in guarantee-type sale contract dispute,the performance of the house sale contract is the alternate means when the borrower cannot repay the money on time.The parties have the real intention to perform the house sales contract when certain conditions are achieved,instead of agreeing that the house sales contract does not take effect.This kind of situation is regulated by the collusion hypocritical expression,which is out of the theoretical basis and regulatory scope of collusion hypocritical expression.At the same time,when there is substantial concurrence between collusion hypocritical expression and malicious collusion,collusion hypocritical expression and covering up illegal purposes in legal forms(hereinafter referred to as "the act of covering up illegal purpose"),the judge has difficulty in selecting the articles of law,so there is the phenomenon of arbitrary application or simultaneous application,which cannot clearly point out the reason for the invalidity of legal acts,and it will also lead to confusion in the application of the three norms.On the other hand,collusion hypocritical expression is often considered as a way to evade the law.In practice,there is a phenomenon that from the fact that the parties have an illegal purpose,to infer that the parties have the false expression of intention.This is due to the lack of clear recognition of the difference between evasion-of-law behavior and collusion hypocritical expression,which leads to the improper expansion of collusion hypocritical expression.The normative application of collusion hypocritical expression has two meanings.On the one hand,the legal acts within the scope of the regulation of collusion hypocritical expression should be regulated by it,that is to say,the false expression of intention should be regulated within the framework of collusion false expression,which can not only solve the problem of different judgments in the same cases,but also avoid the erosion of applicable boundary of collusion hypocritical expression by other legal rules.The false expression of intention should not be regulated by the act of covering up illegal purposes,the conspiratorial and hypocritical function of the act of covering up illegal purposes has been replaced by article 146 th in the General Provisions of Civil Law.The false expression of intention should not be regulated by malicious collusion,to avoid the erosion of the scope of the regulation of collusion hypocritical expression.On the other hand,the application of collusion hypocritical expression should be strictly applied to the occasions where the actor and the relative person are not bound by their intention expression.It should be recognized that the collusion hypocritical expression means that the parties pursue the legal act without legal effect to achieve the purpose,while the evasion-of-law behavior means that the parties pursue the legal act with legal effect to achieve the purpose,so as to avoid the unclear boundary between the two in practice.At the same time,the validity of the guarantee-type sale contract should not be regulated by the collusion hypocritical expression.In practice,the contracts that representation does not accord with fact are very complicated.If the binding intention of the parties is ignored,and the legal act is generally regulated by article 146 th of the General Provisions of Civil Law only because of its false or concealed factors,the collusion hypocritical expression will be removed from the scope of the regulation of false expression of will.If the scope of application of collusion hypocritical expression expands indefinitely,it will become the panacea of invalid legal acts.In addition,because the legal terms of "name" and "practice" in judicial practice cover the interpretation of the types of real legal acts,the redefinition of contracts and the collusion hypocritical expression,which have different meanings in different situations,the judge should clarify the specific reference of "name" and "practice" in the judgment and standardize the applicable legal terms.