Research On Malicious Collusion Rules

Article 154 of General Provisions of Civil Law of China has established the general regulation of malicious collusion.Although the provision was ultimately retained in the contention on existence and abolition,problems such as vague concepts and overly broad range of regulation,which had long been criticized for malicious collusion,did not seem to have been solved with the promulgation of article 154.In addition,the value system of the new malicious collusion regulation in the whole general provisions and even the whole civil law system,as well as its constitutive elements and legal effects are still widely debated in academia.Therefore,it is necessary to explain and comb the malicious collusion rule from the angle of rechtsdogmatik,so as not to make it a castle in the air,and not to cause judicial peremptoriness.Firstly,this paper points out the two main doubts that the maliciouscollusion system may be abused due to its unclear systematic location,uncertain scope of application and inconsistent standards in practice from the contention on its existence and abolition in legislative history,and points out that the value basis of malicious collusion lies in its contrary to public order and good custom;Secondly,it is regarded as a special case of the violation of public order and good custom;Compared with the system of collaborate false expression and revocation right,it has different characteristics and normative function;This paper distinguishes the effects of malicious collusion as a concept in law and a concept in life language on the typical situation of malicious collusion in practice.If it is the malicious collusion within the meaning of article 15 and there are provisions of other laws and judicial interpretations,special provisions shall apply;If it is not the malicious collusion within the meaning of article 154,it shall not encroach upon other civil legal systems.Thirdly,the constitutive elements of malicious collusion.The declaration of intention between the conductors of collusion shall be true.In addition to "malice" and "knowing",there should also be an intention to infringe upon the rights and interests of others,among which "infringe" refers to the actual damage result,"others" refers to a specific third party,and "rights and interests" refers to the legitimate claims of a third party.Meanwhile,civil presumption rules should be taken into account in the proving process to reduce the burden of proof of the plaintiff.Finally,the legal effect of clarifying malicious collusion is relatively ineffective;The restitution relationship and unjust enrichment only exist between the two parties after invalidation andshall not be returned to a third party;It is suggested to admit the convergent relationship between malicious collusion and joint tort on the relief level,and ask the actor and the counterpart to bear joint and several liability for the loss of the third party by referring to the latter remedy path.