Study On Some Basic Problems Of False Litigation

With the deepening of the concept of law-based governance,citizens' awareness of safeguarding their rights is gradually enhanced,and more citizens choose to take up legal weapons to safeguard their legitimate rights and interests in disputes.At the same time,due to the implementation of the case registration system,the number of cases received by the national courts increased rapidly,and a large number of cases were abused.Many lawbreakers take advantage of false litigation behaviors to achieve their illegal purposes.In view of the increasing frequency of false litigation in China,the amendment to the criminal law(ix)came into effect on November 1,2015.Article 35 of the amendment makes new provisions on the crime of false litigation,and the crime of false litigation shall be punished separately.This paper briefly discusses and analyzes the problems in the application of the crime of false lawsuit,including four major parts.The first part of this article,first has carried on the simple introduction about the present situation of false litigation,secondly in achievements prior to alone into the punishment of this crime are different points of view are introduced,through the analysis the author has defined to the false litigation,think false action refers to the legal relationship of civil litigants fiction is not true,utilizing the means such as false evidence in civil lawsuit behavior,hinders orderly judicial order,but also a serious violation to the legitimate rights and interests of others.Based on the analysis of the above concepts,the author sorts out the classification of false litigation behaviors.According to whether there is collusion between the parties,the behaviors can be divided into non-collusion and collusion.The main purpose of classifying this kind is to facilitate judges to identify false litigation behavior.Secondly,the author further sorted out the legislative evolution of the regulation of false litigation in China.Since there was no uniform nature before this crime was punished,the adjudication results of courts in different regions were widely different,which to some extent promoted the introduction of national laws.The above contents can better understand the background of false lawsuit.Finally,the author makes a comparison of the legislation and regulation of false litigation in China and abroad,and finds that the regulation mode of China is different from that of Germany and Japan,but similar to that of Italy.The second part analyzes the constitutive elements of the crime of false lawsuit one by one,including the object,objective aspect,subject and subjective aspect of the crime.As for the object of crime,there are different views in the academic circle.According to the possibility of different objects being violated and the difference in the strength of criminal law protection,some scholars believe that the judicial order is the primary object of this crime,while the legitimate rights and interests of others are the secondary object.Through analysis,the author believes that the object of this crime is selective,specifically "judicial order" or "judicial order and the legitimate rights and interests of others";And about the objective aspect of this crime is mainly refers to the offender means,and whether to include "to conceal the truth" means the behavior,is a major discussion objective aspect,the author analysis that only in a positive behavior as a way tohide the truth,the essence and this crime to punish the behavior of an identical in nature,this application will be within the scope of the behavior of induction to the regulation of this crime;The subject of the crime is relatively simple,natural person or unit can implement the false behavior,become the subject of the crime;Subjectively,the crime is intentional,and the purpose of illegal possession cannot completely cover the subjective psychology of the doer,so it is not required for the doer to have the purpose of illegal possession.Through the analysis of the constitutive elements in this part,we can have a clearer understanding of the crime of false lawsuit and better identify which behaviors constitute the crime of false lawsuit in practice.The third part focuses on the judicial determination of the crime of false lawsuit.In this part,the author firstly makes a comparison of similar charges and clarifies the boundary between the crime of false lawsuit and other similar charges.Secondly,it discusses the criminal form of false lawsuit,and further clarifies whether this crime belongs to the result crime or the act crime.Finally,the author analyzes the crime form one by one.This part is controversial in judicial practice.The fourth part is the author's summary of the application of this crime in the judicial problems and the author put forward some Suggestions for improvement.The types of false litigation cases show diversity,and it is difficult for judges to effectively identify them in practice.For newly added crimes,it takes a long time to adapt to judicial practice.The lag of law and the limitation of language prevent the legislation from including the ever-changing criminal forms.