通谋虚伪行为浅析
发布时间：2018-12-31 14:43
【摘要】：通谋虚伪行为制度是一项传统大陆法系制度,其发展已有几百年。本文以2013年2月20日出台的房地产新政“国五条”为背景,以房屋买卖“阴阳合同”为研究视角,对通谋虚伪行为制度进行多维分析。随着我国社会主义市场经济以及房地产事业的迅猛发展,民事纠纷也不断涌现出新的类型。我国现有民事法律制度在处理此类纠纷时显得捉襟见肘。在此背景下,如何保护交易人的合法权益、如何稳定交易安全都显得尤为重要。笔者通过比较中外法律,并结合在工作中所遇见的实务困境,深入剖析通谋虚伪行为制度,以期对民法典的编撰提出自己的浅见。全文共分为六个部分。第一部分,导论。该部分是全文论述的铺垫,首先归纳了笔者撰写此文的研究背景,之后通过文献综述的方式对笔者参详的中外学者理论成果进行梳理,并在此基础上做了简单的评述。最后笔者归纳总结了自己的研究方法和研究路径。第二部分,通谋虚伪行为概述。在该部分中,笔者从通谋虚伪行为的概念及构成要件入手,对通谋虚伪行为进行一个概括的阐述。再对其适用范围做了一个详细的辨析,通过对各学者争议意见的罗列与分析,提出自己的观点。同时为了更具体的明确通谋虚伪行为的内涵,笔者将其与信托行为、诈害行为、脱法行为等相似概念进行区别判断。第三部分,通谋虚伪行为的效力分析。在这部分中,笔者围绕通谋虚伪行为对当事人的效力、对第三人的效力以及隐藏行为的效力三个部分展开论述。笔者罗列了不同国家的有关法律规定及中外学者的理论研究成果,为后文中与我国的相关制度进行比较埋下伏笔。第四部分,我国类似制度评析。因我国并无通谋虚伪行为制度,笔者只得对与其相类似的恶意串通以及以合法形式掩盖非法目的的相关规定进行结构研析,并将上述两种制度与通谋虚伪行为作比较研究,从中分析我国现有制度的优势及劣势。第五部分,房屋买卖“阴阳合同”纠纷案例评析。这部分是笔者的最大创新之处。有关通谋虚伪行为的纠纷在司法实务中屡见不鲜。笔者结合自身工作,选取房屋买卖“阴阳合同”这一典型的通谋虚伪行为为切入点,直观反映出我国现有制度与通谋虚伪行为制度的差异,同时引入笔者自己的思考与评述,以期完善我国相关领域的立法。第六部分,我国立法现状分析。在这部分中,笔者从我国民法典编撰的角度,再次深入分析了通谋虚伪行为与恶意串通、以合法形式掩盖非法目的的区别,详述了在我国不建立通谋虚伪行为制度的情况下,适用恶意串通、以合法形式掩盖非法目的时应当注意的问题。希望通过笔者初浅的建议,填补我国相关领域立法的漏洞,更好的促进法制建设发展。
[Abstract]:Collusion hypocrisy system is a traditional civil law system, its development has been hundreds of years. With the background of the New deal of Real Estate "National five" which was introduced on February 20, 2013, and from the perspective of "Yin Yang contract", this paper makes a multi-dimensional analysis on the system of collusion hypocrisy. With the rapid development of socialist market economy and real estate industry in China, new types of civil disputes are emerging. The existing civil law system of our country is overstretched in dealing with such disputes. In this context, how to protect the legitimate rights and interests of traders, how to stabilize the transaction security is particularly important. By comparing the Chinese and foreign laws and combining the practical difficulties encountered in the work, the author deeply analyzes the system of collusion hypocrisy, in order to put forward his own views on the compilation of the Civil Code. The full text is divided into six parts. The first part, introduction. This part is the foreshadowing of the full text. Firstly, the author summarizes the research background of this article, and then combs the theoretical achievements of the Chinese and foreign scholars through literature review, and on this basis makes a brief comment. Finally, the author summarizes his research methods and research path. The second part is an overview of collusion hypocrisy. In this part, the author begins with the concept and elements of collusion hypocrisy, and gives a general exposition of collusion hypocrisy. Then it makes a detailed analysis of the scope of its application, and puts forward its own views through the enumeration and analysis of the controversial opinions of various scholars. At the same time, in order to clarify the connotation of collusion hypocrisy more concretely, the author distinguishes it from the similar concepts such as trust behavior, deceitful behavior, dishonest behavior and so on. The third part, the effectiveness analysis of collusion hypocrisy. In this part, the author discusses the effectiveness of collusion hypocrisy on the parties, the effectiveness of the third party and the effectiveness of the hidden act. The author lists the relevant laws and regulations of different countries and the theoretical research results of Chinese and foreign scholars. The fourth part, our country similar system appraisal. Since there is no system of premeditated hypocrisy in our country, the author has to study the structure of malicious collusion similar to it and the relevant provisions that cover up the illegal purpose in a legal form, and make a comparative study between the two systems and collusion hypocrisy. From the analysis of the strengths and weaknesses of China's existing system. The fifth part, the housing sale "Yin Yang contract" dispute case analysis. This part is the author's greatest innovation. The dispute about collusion hypocrisy is common in judicial practice. In combination with my own work, the author chooses the typical hypocrisy of collusion as the starting point, which reflects the difference between the existing system and the system of collusion hypocrisy. At the same time, the author introduces his own thoughts and comments. In order to improve the relevant areas of legislation. The sixth part analyzes the current situation of legislation in China. In this part, from the angle of compiling the civil code of our country, the author analyzes the difference between collusion hypocrisy and malicious collusion, and covers the illegal purpose in legal form, and details the situation that the system of collusion hypocrisy is not established in our country. The application of malicious collusion, in legal form to cover up the illegal purpose should pay attention to. The author hopes to fill the loophole in the legislation of relevant fields through the author's initial suggestions, and promote the development of legal system better.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6
本文编号：2396727
[Abstract]:Collusion hypocrisy system is a traditional civil law system, its development has been hundreds of years. With the background of the New deal of Real Estate "National five" which was introduced on February 20, 2013, and from the perspective of "Yin Yang contract", this paper makes a multi-dimensional analysis on the system of collusion hypocrisy. With the rapid development of socialist market economy and real estate industry in China, new types of civil disputes are emerging. The existing civil law system of our country is overstretched in dealing with such disputes. In this context, how to protect the legitimate rights and interests of traders, how to stabilize the transaction security is particularly important. By comparing the Chinese and foreign laws and combining the practical difficulties encountered in the work, the author deeply analyzes the system of collusion hypocrisy, in order to put forward his own views on the compilation of the Civil Code. The full text is divided into six parts. The first part, introduction. This part is the foreshadowing of the full text. Firstly, the author summarizes the research background of this article, and then combs the theoretical achievements of the Chinese and foreign scholars through literature review, and on this basis makes a brief comment. Finally, the author summarizes his research methods and research path. The second part is an overview of collusion hypocrisy. In this part, the author begins with the concept and elements of collusion hypocrisy, and gives a general exposition of collusion hypocrisy. Then it makes a detailed analysis of the scope of its application, and puts forward its own views through the enumeration and analysis of the controversial opinions of various scholars. At the same time, in order to clarify the connotation of collusion hypocrisy more concretely, the author distinguishes it from the similar concepts such as trust behavior, deceitful behavior, dishonest behavior and so on. The third part, the effectiveness analysis of collusion hypocrisy. In this part, the author discusses the effectiveness of collusion hypocrisy on the parties, the effectiveness of the third party and the effectiveness of the hidden act. The author lists the relevant laws and regulations of different countries and the theoretical research results of Chinese and foreign scholars. The fourth part, our country similar system appraisal. Since there is no system of premeditated hypocrisy in our country, the author has to study the structure of malicious collusion similar to it and the relevant provisions that cover up the illegal purpose in a legal form, and make a comparative study between the two systems and collusion hypocrisy. From the analysis of the strengths and weaknesses of China's existing system. The fifth part, the housing sale "Yin Yang contract" dispute case analysis. This part is the author's greatest innovation. The dispute about collusion hypocrisy is common in judicial practice. In combination with my own work, the author chooses the typical hypocrisy of collusion as the starting point, which reflects the difference between the existing system and the system of collusion hypocrisy. At the same time, the author introduces his own thoughts and comments. In order to improve the relevant areas of legislation. The sixth part analyzes the current situation of legislation in China. In this part, from the angle of compiling the civil code of our country, the author analyzes the difference between collusion hypocrisy and malicious collusion, and covers the illegal purpose in legal form, and details the situation that the system of collusion hypocrisy is not established in our country. The application of malicious collusion, in legal form to cover up the illegal purpose should pay attention to. The author hopes to fill the loophole in the legislation of relevant fields through the author's initial suggestions, and promote the development of legal system better.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6
【引证文献】
相关会议论文 前1条
1 孟银芳;;“黑白合同”与合同变更比较[A];中国民商法实务论坛论文集[C];2005年
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