On The Legislative Choice Of Malicious Collusion In Our Civil Code

Malicious collusion is a unique concept in China.There is no corresponding concept in the civil law theory of the continental law system and the Anglo-American law system.Article 154 of the General Principles of Civil Law and Article 52 of the Contract Law stipulate Malicious collusion,but neither explicitly defines the concept of malicious collusion.The academic community has always been controversial about the concept of malicious collusion.At the same time,due to the ambiguity of the concept of malicious collusion,the boundary between malicious collusion and other legal systems is unclear.In judicial practice,the court's understanding about the concept of malicious collusion cannot be unified,resulting in different judgments in the same case.In addition,the legislator intended to regard malicious collusion as the cause of meaning flaw,and only refers to the malicious collusion of the party and the agent of the other party cause the other party makes the declaration intention to violate his true meaning.However,in the later judicial practice,the scope of application of the malicious collusion system continued to expand,surpassing the original boundary and eroding the scope of effectiveness of other legal systems.This is also criticized by most scholars.In the process of drafting the general principles of civil law,whether to abolish or retain malicious collusion has become one of the hotspots of scholars' controversy.Although the general principles of civil law still chose to retain the malicious collusion,its problems remain unresolved.Moreover,the general principles of Civil Law also stipulate hypocritical behaviors,which can also lead to the difficulty of applying the law.This paper starts with the combing of the concept of malicious collusion,introduces the hypocritical behaviors regulations in China's "General Principles of Civil Law" and the hypothesis of conspiracy hypocrisy in foreign countries and other regions,and generalize the shortcomings of the malicious collusion by comparing them and analyzing the application situation of malicious collusion.At the same time,the author puts forward her views through the introduction and analysis of the abolition of malicious collusion and the retention of malicious collusion.The author thinks that because of the ambiguity of the concept of malicious collusion and the difficulty of proof,the application of malicious collusion in judicial practice has been gradually reduced in recent years,and in many cases,because the plaintiff failed to prove,the court chose to apply other regulations to solve the case.And the "General Principles of Civil Law" stipulates hypocritical behaviors,which can cover most scope of malicious collusion.The malicious collusion in the General Principles of the Civil Law presupposes damages the legitimate rights and interests of "others" If the damage is to the national or the collective interest,it can be evaluated as harming the public interest and invalid.If the damage is to the benefit of a specific third party,the absolutely invalid rule is unreasonable.It can be chosen to be applied to other regulations.If other regulationgs cannot solve the problem,as malicious collusion is an act that violates public order and good customs,it can also be solved by applying the principle of public order and good custom.Therefore,the author proposes to abolish malicious collusion,and improve the provisions of hypocritical behaviors in the General Principles of the Civil Law,and apply the principle of public order and good custom as catch-clause.