The Normative Interpretation And Application Of Article 154 Of The General Principles Of Civil Law

Although the "Malicious Collusion" rule is an imported product,it has developed into a civil law rule with Chinese characteristics after several decades.This paper aims to find out the proper meaning of the "Malicious Collusion" rule in the "General Provisions of Civil Law" on a systematic review of the legislative evolution of malicious collusion rules in China,and then to analyze the constituent elements,legal effects and recognition rules of “malicious collusion” in typical scenes.In addition to the introduction and conclusion,this article is divided into three parts.The first part is the civil law positioning of “malicious collusion”.This part firstly sorts out the development of malicious collusion rules in the legislative history of China,and learns that before and after the implementation of the General Principles of Civil Law,the legislative intent of the "Malicious Collusion" norm is to regulate the behavior of "malicious collusion" between agents and counterpart which will damage the principal’s interests.Secondly,it explores the legal basis of invalid behavior of the malicious collusion.On the one hand,it affirms the practical necessity of setting up malicious collusion rule.On the other hand,it proves that the malicious collusion rule is actually evolved from the principle of public order and good custom.Finally,it summarizes the regulatory layout of malicious collusion in China’s current legal system,and clarifies the different positioning of Article 154 of the General Provisions of Civil Law within and outside the system of the General Provisions of Civil Law.The second part is the structural analysis of "malicious collusion" in the General Provisions of Civil Law.This part first confirms the scope of application of Article 154 of the General Provisions of Civil Law,which is not limited to “malicious collusion” between the parties,but also includes “malicious collusion” between the party and the agent and“malicious collusion” between the agents.Secondly,it explains that the constitutive elements of Article 154 of the General Provisions of Civil Law are “mutual assent of manifestation of intention between the actor and the relative person is true” “The true manifestation of intention must be made by malicious collusion” and “the mutual assent will harm others legal rights and interests".On this basis,the part further analyzes the standard of malicious,the manifestations of collusion and the specific meaning of “damaging others legal rights andinterests”.In principle,“malicious” in “malicious collusion” includes two states: “direct intentionality” and “indirect intentionality”;“collusion” can be expressed as the prior conspiracy of both actors to actively pursue the occurrence of damage results,and as a situation where one of the actors makes a manifestation of intention and the other party accepts it.“Damage” in “damaging others legal rights and interests” refers to the possibility of damage rather than the actual damage.“Others” refers to specific or unspecified natural persons or organizations.“legal rights and interests” refers to all rights and legitimate interests,including but not limited to property rights,creditor’s rights,equity,etc.Thirdly,it affirmed that the legal effect of Article 154 of the General Provisions of Civil Law is “absolutely invalid” and discusses that under the premise of “revocable behavior system” and “protection system for goodwill third-party” in China,the theory of “relative invalidity” should be abandoned.Finally,it also analyzes the relationship between “malicious collusion” and“co-infringement” from composition and responsibility: the malicious collusion is completely possible to be converted into a tort,and it is entirely possible to relief the damage of victim by applying the provisions of the Tort Liability Law.The third part is the identification and application of malicious collusion in typical scenes.This part successively analyzes the composition,recognition and legal effect of"malicious collusion" in the scene of "fraudulent credit","properties being sold twice","agent behavior" and "damage equity",and summarizes the general presumption rule of "malicious collusion".Under normal circumstances,we can comprehensively presume whether there is"malicious collusion" between actors through the following factors: “whether the transaction consideration is reasonable”,“the actual performance of the transaction”,“whether the transaction is obviously contrary to the business law”,“whether the actors have a special relationship”,“whether the actor violates the transaction obligation” and “whether the actor is in violation of laws or internal charter” and so on.Generally speaking,the more unreasonable factors a transaction has at the same time,the more likely it is to be a “malicious collusion”.Of course,the actor can deny the above presumption through evidence.In addition,this part also argues that there is no possibility of “malicious collusion” at the legal level in the“unauthorized disposition” situation.Because once the actor is” unauthorized disposition ",then the relative person can not obtain the property right through legal acts,and when the"unauthorized disposition " constitutes "malicious collusion",then the relative person can not claim acquisition in good faith,that is,the true right holder will not suffer damage,thus the“malicious collusion in the unauthorized disposition” exists only on the factual level,and has no legal meaning,and there is also no space for application in Article 154 of the General Provisions of Civil Law.