On The Judicial Control And Legislative Reform Of Malicious Collusion Legal Acts

"Malicious collusion" is a system with distinctive Chinese characteristic which originated from the former Soviet union,set in the Soviet Union civil law with legislation form firstly,developed with Chinese General principles of civil law,Contract law,But also has close connection with simulation.The provisions of the "malicious collusion,to damage the state,collective or the third party" on the law is quite simple,only appear in the Contract law,General principles of civil law,Auction law and other laws,but for the specific meaning,the identification standard,the connotation and extension of this provision has not a clear definition,caused the difficulty of identifying the system in theory and the confusion of applying the provision in the specific cases in judicial practice.Discussing how to identify malicious collusion in judicial practice whether should retain the provision "malicious collusion to damage the state,collective or the third party" in the civil law is the purpose of the paper.Therefore,this paper is divided into four parts: the current situation of judicial practice,comparative law review,legislative proposals and practical verification.The first part is the analysis of the 47 cases about malicious collusion which collected from the The magic weapon of Peking University and the Chinese referee instruments net,Through the list of these cases to know a specific case how to be identified as malicious collusion in judicial practice of our country,then to induct and summary the standards from these cases that to be identified as malicious collusion to get the general standards of malicious collusion.The second part introduces the similarities and differences between the malicious collusion system and the simulation theory of the continental law system and through comparing the advantage of keeping malicious collusion system with the disadvantages of using the theory of simulation to replace the malicious collusion under the current situation of our country,the author proposed the legislative proposals.that in the future civil code should retain and improve the malicious collusion system.The third part proposes legislative ideas and draw up two legal provisions and points out the shortage of current legislative provisions for malicious collusion system from the analysis and summary of the first two parts,The fourth part through a case that constitutes malicious collusion in the judicial practice,introduce the specific circumstances when the court hearingthe case to conclude the reason,standard and procedure of identifying a case constitutes malicious collusion in judicial practice,at the same time,using the proposed legal provisions to identify whether the case constitutes malicious collusion.By contrast,the author puts forward that constitute malicious system conforms to China's national conditions with long history effect,but it is still not a mature legislative proposal that should be retained in the civil code.