On The Criteria For Determining The Crime Of False Litigation

Article 35 of the Criminal Law Amendment(IX),which was implemented on November 1,2015,stipulates that “one article after Article 307 of the Criminal Law shall be added as one of Articles 307: a civil action shall be instituted on the basis of fabricated facts.If it interferes with the judicial order or seriously infringes on the lawful rights and interests of others,it shall be sentenced to fixed-term imprisonment of not more than three years,criminal detention or control,and shall be punished with a fine or a single penalty." The two high-level simultaneous enactment of the"Implementation of the Criminal Law of the People’s Republic of China" The new offence is stipulated in the Provisions(6)as a false lawsuit.On October 1,2018,the two interpretations of the "Analysis on Several Issues Concerning the Application of Laws in Criminal Cases of False Lawsuits" came into effect,and some specific contents of this crime were refined.These laws stipulate,to a certain extent,the criminal law disputes surrounding the previous acts of malicious litigation,and also facilitate the handling of false litigation cases by judicial practice.However,because the concept itself is still ambiguous,the discussion of the object of this crime continues,and how to define the behavior needs further exploration.In addition,in practice,the types of false litigation cases are diverse,and it is necessary to analyzehow the actors fabricated all the facts and fabricated some facts.Moreover,the concept of "false litigation" comes from the civil law academics.Therefore,the boundaries between false litigation crimes and civil false litigations,and how to coordinate the application of civil law and criminal law in specific cases require more in-depth discussion.Based on this,this article is based on the provisions of the criminal law,from the perspective of judicial interpretation,with the views of various scholars as a reference,to study the specific criteria for the determination of false litigation crimes.This article is divided into four parts:The first part analyzes the problems still existing in the false litigation crime from the figurative process of "false litigation".First,we will explore the criminalization process of false litigation."false lawsuits" originated from civil justice practice.Since then,in order to better protect the judicial order and the legitimate rights and interests of others,the Criminal Law Amendment(IX)added a false lawsuit,and the latter two highs issued the "Applicable to criminal cases involving false litigation.The Interpretation of Several Issues in the Law specifically regulates the specific determination of the crime of false litigation.However,due to the limitations of the text language and the complexity of the cases in the real world,there are still some problems in the provisions of the crime of false litigation,such as the discussion of the object of crime.Since false lawsuits involve civil law and criminal law,it is necessary to further distinguish between civil false and false litigation.The second part studies the criminal object of the crime of false litigation.The object theory of this crime has a single object theory and a dual object theory.By analyzing the relationship between "obstruction of judicial order" and "infringement of the legitimate rights and interests of others",we can see that the crime of false litigation is not a single object,but a complex object,that is,the judicial order and the legitimate rights and interests of others are the objects of this crime.The third part analyzes the specific false litigation behavior based on the discussion of the object in the second part.It is divided into three parts: Firstly,the "malicious collusion" behavior in the false litigation crime is compared with the "malicious collusion" in the civil false litigation,and the "malicious collusion" in this crime should be wider than the civil false litigation."Malicious collusion" includes more than "malicious" infringement of the rights and interests of others.Secondly,the analysis of the "fabricated facts" and the use of the facts fabricated by others to initiate a civil lawsuit should also be considered a false lawsuit.Finally,the analysis of “initiating civil litigation” shows that the scope of the false litigation regulation includes all procedures of civil litigation,but does not include arbitration and notarization procedures.The fourth part analyzes the handling of typical false litigation cases from the application of the connection between civil law and criminal law.Firstly,the author divides the boundary between the civil false litigation and the false litigation crime.When determining the specific false litigation case,it is necessary to strictly determine the behavior of the crime according to the constituent elements of this crime,and also insist on the criminal law The principle of restraint can be adjusted by the civil procedure law for those false litigations that have not yet constituted a crime,thus realizing the application of criminal law and civil law in the field of false litigation.Among them,there are two typical cases.The first is the case of false divorce.Such a case cannot be regarded as a false lawsuit because of the subjective facts of the perpetrator.It should be adjusted by the civil law.Second,the "shadow contract" case,because it does not substantially impede the judicial order,does not establish a false lawsuit,it should be adjusted by the civil law.