Study On Constitutive Elements And Judicial Application Of The Crime Of False Litigation

In recent years,false litigation has been on the increase countryside.The behavior of people for improper purpose of fabricating the facts,brought the civil action causes a serious waste of judicial resources,obstructs judicial public faith force and damages the authority of the verdict.Although it is regulated by the provisions of the Civil Procedure Law,qualitative controversies aroused by the false litigation in criminal law emerge continuously.In this context,"Criminal Law Amendment(nine)" added "the crime of false litigation".This accusation is set up to make up for the blankness in the prevailing criminal law,but because the provision is ambiguous and there isn't any corresponding judicial interpretation,there is a certain obstacle to the understanding and application of the accusation,and there are many confusions of the legal research on the accusation.Therefore,it is necessary to study the constituent elements and the problems that may be encountered in the judicial application of the accusation.This paper includes four parts.In the first part,the author analyze the concept of false litigation,and divide the false litigation into several types.The term of the "fraud by lawsuit" is limited to the use of criminal law,and has many drawbacks.It is unnecessary to distinguish between the term "litigation fraud" and "false litigation".It is suggested to use "false litigation" to unify theory and the discourse space of the study of false litigation behavior,and to link the civil and criminal law.It is believed that the extension of false litigation in the field of civil procedural law is greater than that in the criminal field.False litigation includes both collusion and unilateral action,property offence and other type.The second part,where the author study the constitution of the crime of false litigation.The object of this crime should be complex object,which include the normal judicial activities as the main object and the legitimate rights and interests of other people.In the objective aspects,the scope of the occurrence of false litigation is limited to the field of civil litigation,the objective behavior are "fabricating facts" and " filing a lawsuit".Fabricating facts,including fabricating part of the facts,but the part must be the key fact that plays a decisive role in the litigation.Filing a lawsuit,including raising a lawsuit,instituting counterclaim or changing litigious claim during the first instance procedure,the second instance procedure or the retrial,and cases of special procedures and incidental civil procedure to criminal case.In addition,for the claim arising from "shadow contract" and false divorce cases,should not be regulated by the crime of false litigation.The subjective purpose of this crime is not limited to seeking improper benefits,may also exists for other purposes.The third part discusses the standard of the crime of false litigation and the criterion of imposing penalties.It is suggested that the crime of false litigation should not be regarded as behavioral offence,instead the serious circumstances of the behavior should be examined.Standards of conviction should be clearly expressed by judicial interpretation combined with different cases.The penalty measurement of the crime is divided into two level.The "gravity of the circumstances" means that there is even more serious plot on the basis of the standard of conviction.In addition,it is suggested that a further increase in the penalty measurements of the crime can be made,so that in those cases where the circumstances are particularly serious punishment can fits the crime.The last part of the paper analyzes the criminal pattern of this crime.Filing a false complaint means initiating the crime,and the standards of judgment of accomplishment of the crime should revolve the impairing of the judicial order.The criteria for judging the impairing of the judicial order should not be limited to the court's wrongdoing or serious infringement of the rights and interests of other people,instead,it should be strictly judged according to the standards of conviction.The relationship between the crime of false litigation and the crime of fraud,the crime of extortion,the crime of impairing testifying,etc is explored.It is concluded that the behavior of false litigation does not constitute the crime of fraud,but in the specific case,a behavior may violate both crimes.