Discussion On Conspire Hypocritical And The Reconstruction Of The System

As a situation of defect declaration of will, conspire hypocritical was first introduced by Germany Civil Law, and is now written in the civil law of different countries such as Switzerland, Japan and South Korea. In Chinese civil law, there is no regulation of conspire hypocritical act, and the study about this concept is not enough. As a result, lots of specific issues about this concept remain controversy. In judicial practice, conspire hypocritical lead to a series of problems which cause difficulties to the court. This article will introduce the theory of conspire hypocritical, and analysis the currency regulations which is similar to it. On this basis, this article will give advice to the legislation of Chinese civil law.The main body of this article is divided into four parts.The first part is the introduction of conspire hypocritical. As a situation of defect declaration of will, the defect is that both parties do not want their declaration of will take effect. The constitutive requirement of conspire hypocritical includes the existence of declaration of will, the difference between intension and expression and the conspiracy between parties. Conspire hypocritical is possible in unilateral legal act in which there is a counterpart, but should not be applied to status ace which is register legally.The second part is the legal effect of conspire hypocritical. Comparing the regulations of different countries, conspire hypocritical is usually invalid because of the lack of true intension. However, the countries have different opinions about the protection of the third party. The theoretical basis is the theory of the explanation of declaration of will. Most countries insist that the effect of conspire hypocritical should not go against the bona fides third party, but the details such as the definition of the third party, bona fides still need to be cleared.The third part is the current situation of legislation and judicial practice in China. Regulations about “malicious conspiracy and” and “legal form concealing illegal purpose” are considered as regulations about conspire hypocritical in China. But there are some difference between them.From relative cases in judicial practices, we can see that the effect of current regulations is not satisfactory, which lead to the uncertainty of law and can be replaced by other regulations including regulation about conspire hypocritical.The fourth part is the improvement of the legal system about conspire hypocritical in China. It is suggested that we establish a system about conspire hypocritical and cancel the current relative regulations. It is not necessary to protect the third party in the regulation because of the third party acquisition system. Under current legislation, article 55 of General Rule of Civil-law can be used to regulate conspire hypocritical. In judicial practice, the use of regulations about “malicious conspiracy” and “legal form concealing illegal purpose” should be restricted and treated as save clause.