The Prosecutorial Supervision Of Fictional Action

In recent years, the frequent presentations of fictional actions in justice resultedin a waste of judicial resources severely, undermining the judicial order and itsauthority. Although more and more attentions around the judiciary attached to thisissue by the courts, the prosecutors and the academic fields, and the local judicialorgans introduced the corresponding normative documents as well, it so far has notachieved a good regulation effect for the extreme hiddenness and complexity of thefictional actions. There are many obstacles in the supervision of the prosecution offictional action particularly.“The decisions on some major issues for advancing therule of law comprehensively by the CPC central committee” passed in “The4thplenary session of the eighteenth CPC " clearly stated," that the intensifying effortsshould be strengthened to punish fictional actions." The sanction to the fictionalaction has been a focus of civil prosecutorial departments. The implementation ofthe revised "Civil Procedure Law" and "People’s Procuratorate Civil litigationsupervision rules (Trial)", played an important role in strengthening supervisions tothe fictional lawsuits in the civil prosecutorial, promoting the performance ofprosecutors’ functions in law.Currently, the academia and the judiciary have not reached an authoritativeagreement on the definition of the fictional lawsuit. There often appeared somemisconceptions for combining abuse of fictional action, malicious litigation, fraudlitigation in various occasions. We recognize that there will be a differentinterpretation for one legal phenomenon, the concept will be developed andimproved gradually, So it is necessary for the Supreme People’s Court and theSupreme People’s Procuratorate to work jointly to clarify in a judicial interpretationstyle for ease of the prosecutorial supervision proceedings on fictional actions. Inthis thesis, the paper try to define it as followings: fictional action refers to that alitigant brings a civil lawsuit by colluding maliciously, plotting the legal relationship,fabricating the case evidence in order to obtain illegal benefits, or by abusing the fake arbitration award, notarized documents for enforcement so that the courtarbitrates and enforces incorrectly. The behavior obstructs the justice order, impairsthe lawful rights and interests of the state, collectives and the others or evades theobligations determined by the law issues. The reason for the surge of fictionallawsuit lies mainly in the low-cost for illegal actions, moral decline, the trend ofcivil litigation doctrine, the justice policy for priority mediation and theinsufficiency of disclosure on trail information.Under the circumstances of intensifying cases of the fictional actions, somedeficiencies and drawbacks are being found in the procedures for trail supervision incourt and the third person withdrawing proceeding system when we provide a relieffor the victims of false lawsuit. This requires the prosecution department tostrengthen supervision in order to achieve the final relief of victims and to maintainsocial fairness and justice. The prosecution departments are conferred with thepower by "The Constitution" and " Civil Procedure Law " aiming at providing thesupport.In addition, the prosecutorial supervision to the fictional lawsuit is theinevitable requirement for realizing the goal of litigation discovery, legal discoveryand just cause discovery. In the process of innovations, some lawsuit procedureseroded by the fictional actions will be corrected and the hidden facts covered up bythe false lawsuit will be found.This thesis probes to analyze and summarize the situation of prosecutorialsupervision to the fictional lawsuit via empirical and literary researchers. Theprosecution departments in China have achieved a lot and obtained somesuggestions in the process of advancing prosecutorial supervision proceedings forthe false lawsuit in recent years, but there still exists some problems, including thehardship for verifying the clues investigation, the lack of regulations in the CriminalLaw for suing the criminals, the insufficient evidence for supervision when apretending conciliation is adopted for the interest of an outsider in a single litigationcase and so on.Therefore, the paper propose to fully utilize the ideas on fictionallawsuits at home and abroad to perfect the system of prosecutorial supervision fromseveral aspects: to enlarge the supervision scale, to perfect the system of verifyinginvestigation rights for civil inspection on the basis of unifying the concept of fictional lawsuit in prosecutorial departments. The paper will combine theregulations for fictional actions with the public interest litigation, using theexperiences of those in western countries for reference, try to confirm the fictionalaction as a separate law bill in Criminal Law, continuing to strengthen thecooperation of all-level prosecution and judicial organs, innovating the promotionalmode and improving the standard of supervision to the fictional lawsuit cases in allaspects.