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《民法通则》第58条第4项和《合同法》第52条第2项关于恶意串通行为无效的规定,不仅内涵不明,而且还与通谋虚伪表示、无权处分、无权代理、债权人的撤销权以及损害社会公共利益等规范之间存在诸多无谓的竞合,甚至抵牾,从而导致现行立法在体系上有重大瑕疵。因此基于体系和谐的考虑,我国未来的《民法典》应当回归传统,不宜继续再将恶意串通损害第三人利益的情形作为一种无效的原因而予单独规定。
Article 58 (4) of the “General Principles of Civil Law” and Article 52 (2) of the “Contract Law” stipulate that the provisions on the invalidation of malicious collusive acts are not only confused in meaning, but are also associated with the hypocrisy of the general public that they have no right to dispose of, no right to act, creditors The right of revocation and the damage to the public interest and other norms there are many unnecessary competing, or even contradictory, resulting in the existing legislation in the system has a major flaw. Therefore, based on the consideration of system harmony, China’s future “Civil Code” should return to its tradition and should not continue to separate the cases of malicious collusive damage to the interests of third parties as an invalid reason.