Analysis Of Difficult Issues Related To The Rule Of Malicious Collusion

The rule of malicious collusion is subject to many doubts and criticisms due to the connotation of its provision,constituent elements,and scope of application.Many scholars advocate abolishing this rule.Originally,provisions in the General Principles of the Civil Law and the Contract Law were indeed so simple that they cause criticism.Article 154 of the General Provisions of the Civil Law supplemented and modified the rule of malicious collusion,but there are still a lot of doubt and controversy.Based on analysis of relevant provisions,exploration of difference between scholars’ opinions,and judicial practice,the thesis explains Article 154 of the General Provisions of Civil Law.It also discusses the constituent elements of malicious collusion,legal effects,and the choice for its existence and abolition,in the light of the actual situation of China.The research in this thesis focuses on the following aspects:First,it gives an explanation of two amendments in Article 154 of the General Provisions of the Civil Law about malicious collusion,that is,the scope of the subjectand the object of damage.Based on the analysis of legislative history and scholars’ discussions,this thesis believes that the subject of malicious collusion includes not only two or more parties to civil legal acts,but also someone related to civil legal acts,such as the parties’ agents,representatives,or other relevant third parties,etc.The object of harm is the interests of specific subjects,including collective interests and the third party’s interests,excluding national interests and the unspecified third party’s interests.Secondly,regarding how to determine the constituent elements of malicious collusion,the thesis analyzes judicial cases,and finds that when the court determines whether it constitutes malicious collusion,although the proof standard is high,the "malicious" and "collusion" is usually judged by various daily life experiences,trading habits,contents of contracts,and the situation of performance.Without being constrained by the subjective mental state of the perpetrator,judges usually capture key factors such as "unreasonable prices","special relationships","abnormal behavior",and apply presumption of law and facts.When it comes to objective requirement,that is,the lawful rights and interests of other people are damaged,it is enough that there is a realistic possibility of causing damage,and it does not need to have actual damage.Third,regarding to the legal effects of malicious collusion,this thesis believes that the reason why malicious collusion is stipulated as void is that it damages other people’s lawful rights and interests,that is,the vulgar nature of legal acts.The invalidity in Article 154 means that it is relatively invalid.Because the main purpose of Article 154 is to protect the interests of specific subjects,it can only be asserted by the third party whose lawful rights and interests are damaged.Malicious collusion harms the lawful rights and interests of other people,causing sales contracts to be void,and the related disposal acts are also void.Applying the rule of malicious collusion in the cases of "goods being sold twice" to invalidate the subsequent sales contracts will not destroy the "relativity of debt",because it aims at protecting creditor’s rights,while the relativity of debt aims at the existence scope of creditor’s rights.They are not contradictory.Fourth,the thesis discusses if the rule of malicious collusion should be abolished.There are three core views of the "abolition theory" : the universal key is useless;if other specific rules cannot be applied,the principle of public order and good morals can be transparency provisions;the rule of malicious collusion could be replaced with the rule of misrepresentation.Considering the judicial practice,the rule of malicious collusion do not completely overlap with other rules,and have its own irreplaceable functions.Moreover,the judicial application of the principle of public order and good morals has many shortcomings.Then,after the promulgation of the General Provisions of the Civil Law,whether from the authenticity of declaration of intention or the specific regulatory purpose,Article 154 and Article 146 have been bounded ever since.It is clear that it is no longer possible to cover each other.Considering the fact that the credit environment for transactions in the current economic life is not good,the effect of the rule of malicious collusion will become more prominent,so this rule should be retained.