通谋虚伪表示规则研究

Collusion Hypocrisy Indicates Rule Study

摘要: 通谋虚伪表示作为意思表示不真实的类型之一，最早由德国民法引入。我国《民法总则》第一百四十六条在立法上首次确认通谋虚伪表示规则，进一步填补了我国民法体系在意思领域的空白。现行《民法典》延续了这一规定，但其作为新生的规则还存在许多问题：一是长久以来与恶意串通等相似规范存在适用上的冲突与竞合，对此实践和理论争议不断，同案不同判现象频发；二是在债权领域仍然存在立法空白，缺失善意第三人保护机制；三是司法适用上与举证责任产生脱节，进而使得该条款沦为纸面条款。基于上述情况，可以采取以下解决路径：一是在法理上对无效原因进行梳理区分并对恶意串通的适用边界进行限缩；二是采用《德国民法典》分散规定的方式对债权领域进行立法完善；三是采用举证责任倒置的方式完成善意第三人利益保护实体法到程序法的衔接。

Abstract: Conspiracy to misrepresent, as one of the types of untrue representation of meaning, was first introduced by German civil law. Article 146 of the General Principles of the Civil Code of China confirmed the rule of conspiracy to misrepresent for the first time in the legislation, further filling the gap in the field of meaning in our civil law system. The current Civil Code continues this provision, but as a new rule, there are still many problems: firstly, it has long been in conflict and competition with similar norms such as malicious collusion, which has led to constant disputes in practice and theory, and the phenomenon of different judgments in the same case; secondly, there is still a legislative gap in the field of claims, and there is no mechanism to protect bona fide third parties; thirdly, there is a disconnect between the judicial application and the burden of proof, which in turn reduces the clause to a paper clause. In view of the above, the following solutions can be adopted: firstly, to sort out the causes of invalidity in jurisprudence and to limit the boundaries of the application of malicious collusion; secondly, to adopt the decentralised provisions of the German Civil Code to improve the legislation in the field of claims; thirdly, to adopt the reversal of the burden of proof to complete the connection between the substantive law and the procedural law for the protection of the interests of bona fide third parties. Only in this way can conspiracy to misrepresent play its proper role, instead of being put on the shelf in practice.