The System Positioning and Judicial Application of the Rule of Malicious Collusion

Abstract

The academic circles have different opinions on the position of malicious collusion in the system of the civil law and the judicial practice is also not accurate in grasping the scope of application of the rule of malicious collusion. After the promulgation of China’s Civil Code in 2020, Article 154 still retains the rule of malicious collusion. However, in order to make it more standardized and applicable to trial practice, it is still necessary to clarify its concept and boundary of application. Comparing with complicity in false expression, it can be found that malicious collusion does not belong to the system of defects of intention expression but is closer to the systematic position of a civil juristic behavior contrary to good customs. The subjects of the behavior are the two parties involved in the establishment of a civil juristic behavior. The two parties actively promote the occurrence of the result of harming the legal rights and interests of a specific third party other than the juristic behavior through “collusion”, and “causing actual damage” is not a constitutive requirement. In the actual application, its scope of adjustment should be clarified and special attention should be paid to the identification of “malicious” in the typical application of several transactions on the same commercial housing, so as to avoid interference in free market competition.