Criminal Regulation Of “Partial Tampering” False Litigation

With the rapid development of society,the citizen’s rule of law thinking gradually constructed,more and more people learn to use legal weapons to protect their legitimate rights and interests.However,some people use the litigation rights granted by law to infringe upon the legitimate rights and interests of others for illegal motives and purposes,which is the false litigation behavior discussed in this article.The bad influence of false litigation on the injured party,the society and the national judicial credibility is expanding.Therefore,"false litigation crime" was added to the "Criminal Law Amendment IX" to regulate this kind of behavior.It has been 5 years since the crime of false litigation was born,and the relevant judicial interpretations of the crime have been improved day by day.But through the study of judicial interpretation and the combing of judicial cases,the author finds that there may still be some omissions in the provisions on "partial tampering" in the crime of false litigation.According to the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of False Litigation(hereinafter referred to as the "Interpretation"),for the purpose of protecting the right of suit,it is not proper to punish "partial tampering" false litigation as crime.But the author believes that this kind of behavior should be discussed in different situations to make up for the blank of criminal law system.Therefore,the improvement of the theory of "partially tampering" false litigation can have a positive guiding significance on the judicial practice of this crime,combining the aims of punishing crime and reforming education can also bring warning and educational significance to the society.Through analysis of cases and reasons for the judicial organs to un-criminalize the "partial tampering" false litigation,the author finds that there are some controversies in the following issues.In this paper,the author discusses them and puts forward his own views: First,whether the "fabricated facts" stipulated in Article 307-1 of the Criminal Law are limited to the "created out of nothing" false litigation.This paper holds that this is a misinterpretation of criminal law,with the litigious right in the procedural law and the civil legal relationship as the core of the discussion,we can find out whether it is "created out of nothing" false litigation or "partial tampering" false litigation,a new legal relationship is made up,so the litigious right is false.Second,There is no definite conclusion on the accomplishment standard and accomplishment time-point of the crime of false litigation crime,moreover,the legislation confuses the accomplished standard and aggravating circumstances for sentencing,so the "partial tampering" false litigation cannot be included in the crime.This article holds that the crime of false litigation should be set as a consequential offense,and the accomplishment time-point is after the first instance verdict."Seriously infringing upon the legitimate rights and interests of others" should be regarded as an aggravating sentencing rule rather than the accomplished standard.Third,the reason why the Supreme People’s Court and the Supreme People’s Procuratorate un-criminalize the "partial tampering" false litigation is the protection of the litigious right and the high difficulty on the operation of conviction.But this article holds that through the study of the object of "tampering",we can separate the "partial tampering" false litigation which should be criminalized.Last,for the situation of imaginative concurrence with "partial tampering" false litigation,the judicial interpretation lacks the explanation of the grounds for applying to the felony.The essence of this problem is that there are loopholes in the theoretical interpretation of the random object in the crime of false litigation.This paper explains the main object and random object of the crime of false litigation,and puts forward some suggestions on how to apply the criminal law rules to the "partial tampering" false litigation under the condition of imaginative concurrence.Under the position of "partial tampering" false litigation should be included in the crime,this article holds that the circumstances that should be incriminated can be separated by diverting "tampering" object.At the same time,in order to protect citizens’ legitimate right to sue,they can also be procedurally un-criminalized,such as statutory non-prosecution and discretionary non-prosecution,even if the case goes to trial,they can also be un-criminalized by the "proviso" and the sentence that does not constitute a crime,thus implementing the modesty of criminal law.In addition,we should not rigidly understand that the "fabrication" of false litigation in the criminal law is limited to the type of "created out of nothing" false litigation.Instead,it is necessary to link with the civil law and the civil procedure law,and judge from the point of civil legal relation and litigious right whether the "tampering" behavior has given rise to a new false litigious right,then discuss the connotation and extension of the meaning of "fabricated facts" from the legal dogmatic point of view to prevent regulatory loopholes.Last,for the situation of imaginative concurrence between other crimes with "partial tampering" false litigation,this article uses the comparative analysis method,through the comparison of the typical countries in the two legal systems(Germany and the United States)on the determination of false litigation to explore how to apply the criminal law rules to this kind of situation in China,and demonstrates the conditions for punishment from the felony.