An Empirical Study On The Judicial Application Of Malicious Collusion

The malicious collusion in China's civil law system originates from the Soviet union's civil law,and its initial application scope is limited to the case of malicious collusion between the agent and the counterpart.Legislators aim to use this special provision to regulate the situation of "taking illegal means such as bribery or using power for personal gain to make the state and the collective suffer losses".After the change of legislative language,the comments of scholars and the application of judicial practice,the connotation of this provision gradually deviates from the original meaning,and the application elements and scope are ambiguous,and it is likely to become the "funnel clause".This paper starts with the collection of 300 online judgment documents,combines the existing theories,analyzes the application of the law of malicious collusion,and determines its scope of application.In addition to the introduction,this paper is divided into five parts.The first part is the empirical study of the judicial application of malicious collusion.With "malicious collusion" as the key word,a total of 200 judgment documents were collected on the Chinese online judicial documents,and 50 cases were collected on the Chinese online judicial documents respectively with "article 154 of the general principles of civil law" and "article 146 of the general principles of civil law" as the key words.After analysis and investigation,in judicial practice,the judicial application of malicious collusion is generally in a chaotic situation.One is the expansion of the scope of application of malicious collusion,and the other is the inconsistency of judgment criteria of the constituent elements.The expansion of the application of malicious collusion can also be seen that the adjudicator tends to make the civil juristic act invalid when judging its effectiveness,interferes excessively in the free trading behavior in the market economy,and ignores the transaction autonomy of the trader.In general,if the constitutive elements of malicious collusion can be clearly defined,the application of malicious collusion can be distinguished from other relevant systems and provisions while it is correctly applied,and theapplicable relationship with other provisions that are scattered in various civil laws with expressions of "malicious collusion" can also be well handled.The second part is the innovation of the theory of malicious collusion.The general theory holds that the norms of malicious collusion in China's civil law system originate from Soviet law.The early civil law materials in China all understand the rules of malicious collusion in the sense of agents' malicious collusion with each other,which aims to maintain the national and public interests under the planned economy system.After decades of legislative and judicial practice,its connotation has long been divorced from the single understanding of agents' malicious collusion with each other.After the introduction of general principles of civil law,malicious collusion has become a part of the system of invalid civil ACTS.The invalidity of malicious collusion has nothing to do with the defect of expression of will,but the key lies in the non-vulgar nature of the behavior,whose main function is to maintain the social public interests.In fact,China's current civil law has adopted three regulation methods for malicious collusion.The first is to stipulate that malicious collusion shall not harm the interests of others in the form of prohibitive norms.Second,it stipulates in the form of special law that ACTS of malicious collusion against the interests of others in specific circumstances are invalid;Third,the general provisions of article154 of the general principles of civil law,article 58(1)(4)of the general principles of civil law,and article 52(2)of the contract law.These three kinds of regulation methods together constitute the standard system of malicious collusion in civil law.Article 154 of general principles of civil law plays the evaluation function of general law.In order to make up for the inborn deficiency of the idea of voluntary autonomy in China's judicial practice and to promote the prosperity and development of the market economy,more attention should be paid to respecting the voluntary autonomy of the doer under the premise of effectively safeguarding the social public interests.The third part is the vicarious analysis of the judicial application of malicious collusion.There are various types of malicious collusion cases,involving different occasions,such as two sales of one thing,guarantee,auction,debt evasion and law evasion,etc.,but the applicable legal provisions are concentrated in article 154 of thegeneral principles of civil law,subparagraph 1(4)of article 58 of the general principles of civil law and subparagraph 2 of article 52 of the contract law.In the cases where the provisions of malicious collusion are applicable,the false expression of will system,the system of cancellation right of creditors,the system of unauthorized disposal,the agency system,the specific rules in the auction law and the fraud system can be used instead.Under the circumstances that the provisions of malicious collusion may constitute concurrence with other provisions,the judge should follow the principle of respecting the parties' autonomy of will and try to solve the problem within the agreed scope by both parties,instead of applying the invalid consequences of malicious collusion uniformly.The fourth part is the constitution of malicious collusion.The subject of malicious collusion includes both parties of civil action,one party and a third party.Subjectively,the actor's expression of intention should be true and malicious,so that the application of malicious collusion and false expression of intention can be completely distinguished.The scope of damage includes the state,the collective and the third party;The legal consequences of the act are absolutely null and void.The fifth part is the conclusion.On the basis of full respect for the autonomy of the parties' will,the constitutive elements of malicious collusion can be accurately applied to distinguish them from other relevant systems so as to achieve the purpose of standardization and application.