Research On Judicial Application Of The False Litigation

The promulgation of the Criminal Law Amendment(IX)Act in 2015 opened a new phase in the punishment of false litigation crimes in China.The creation of the crime of false litigation and the promulgation of supporting judicial interpretations and opinions has achieved the formation of a standardized regulatory system from the absence of means to regulate the crime of false litigation,from the weakness of civil disciplinary means and the blankness of criminal regulatory means to the formation of a standardized regulatory system.The introduction of criminal legislation and judicial norms has increased the screening and punishment of false litigation crimes and strengthened the severity of the crack down on false litigation crimes.The sloppiness of the legislative text itself and the imperfection of the judicial normative documents have led to some of the problems in the judicial application of this crime not being solved,while some new problems have also arisen.Practice is the source of knowledge and guides the development of knowledge.Only based on judicial practice,the correct understanding and analysis of the judicial application of the crime of false litigation,in order to better guide the development of the theoretical study of this crime,in order to further promote the perfection of the criminal law system of the crime of false litigation.Different from "malicious lawsuit","litigation fraud","impersonation lawsuit" and other related concepts,false lawsuit crime refers to the perpetrator unilaterally or maliciously conspire with others,fictitious civil case basic the facts and civil disputes,and the people’s court civil litigation,obstructing the judicial order or seriously infringing on the legitimate rights and interests of others in accordance with the laws hall be punished by criminal penalties;In terms of the crime object," judicial order " refers to the normal judicial activities and order that should be observed and maintained by the participants and the judiciary." Legitimate rights and interests of others" refers to the legitimate rights and interests of specific third parties,such as extrajudicial parties and co-litigants,such as claims,property rights and intellectual property rights,as well as the legitimate rights and interests of unspecified persons,such as social public interests and national interests.In the objective aspect,the essence of the crime of false litigation is "abuse of the right to sue",and only includes the procedural right to sue;In terms of the subject of the crime,the crime breaks through the previous obstruction of justice crime subject can only be natural persons,recognizing the possibility of unit crime.Natural person crime subjects are more complex,specifically including civil litigants in the broad sense,other litigation participants,judicial staff and other outsiders;In the subjective aspect of the crime,the crime of fraudulent litigation can only be intentional form of guilt,excluding negligence.At the same time,the crime of fraudulent litigation is not to "seek undue advantage" as the purpose of the crime,as long as the act of fraudulent litigation objectively cause damage to the judicial order or the legitimate rights and interests of others,can be established this crime.According to the subject of the crime or act in different ways,the crime of false litigation can be expressed indifferent types of mode.For example,a single party fabrication false lawsuit and collusion type false lawsuit,"create something out of nothing" positive fabrication false lawsuit and "conceal the truth" passive inaction type false lawsuit.Due to the roughness of the criminal legislative text and the imperfect nature of the judicial provisions,the crime of false litigation in practice has a vague border of criminal acts,different standards of conviction and partly false,and controversial determination of the number of criminal forms,etc.The judicial determination of "aggravating circumstances" on the penalty discretion is vague,the standard of attempt is not uniform and the judicial discretion of judges is arbitrary.Therefore,based on the current criminal legislation and judicial practice,the judicial application of the crime of false prosecution should be further standardized.In the determination of the crime,we should comprehensively grasp the boundaries of criminal acts,unify the incrimination standards,and reasonably distinguish the relationship between the number of crimes in order to achieve the normative determination of the crime.First of all,it is necessary to affirm that "partial tampering" lawsuit can not constitute the crime of false litigation,and "partial tampering" should also be determined in the non-participation suit for independent judgment.The factual basis of the false lawsuit is different from the "partial falsification",which is "created out of nothing",so the crime of false lawsuit can be applied to regulate.The scope of "civil litigation" for the crime of false litigation is all proceedings in the field of civil litigation,including special proceedings and civil proceedings incidental to criminal matters,but does not include civil arbitration proceedings.If the sham civil arbitration has serious social harm,a separate crime can be created to punish it separately.Secondly,the object of the crime of false litigation includes only the judicial order,and the standard of conviction should be strictly interpreted to refer only to the act of actually obstructing the judicial order.The conviction of "serious damage to the legitimate rights and interests of others" is disqualified and only used as an aggravating circumstance for sentencing.Finally,according to the different types of crimes,the crime of false lawsuit can constitute an imaginary competition and implication with the crime of embezzlement,malpractice and other crimes of obstruction of justice,respectively,and choose a felony punishment.However,in the false lawsuit type "loan" crime,because the fictitious debt itself already constitutes fraud,can not be repeated evaluation,can only bring false lawsuit behavior as a false lawsuit crime,and fraud to implement several crimes.In terms of sentencing,it is necessary to further refine the criteria of "aggravating circumstances",clarify the criteria of attempt,and standardize the judicial application of fines and discretionary mitigating circumstances in order to realize the fairness and standardization of sentencing.First,the crime of fraudulent litigation is a result of the crime,the standard of success can be summarized as "the court due to fraudulent litigation to make substantial judicial activities",including the court ruled that the property preservation,to make a trial decision,to make the effective ruling.Second,the judicial authorities should integrate the circumstances of the crime,the defendant’s financial situation and the ability to pay the fine and other factors,and according to the main sentence to determine the amount of fines,standardize the judicial discretionary procedures for fines,to give full play to the function of penal protection.Third,the crime of false litigation can refer to the application of "criminal settlement",the defendant discretionary lenient punishment.However,its scope of application is limited to infringement of the legitimate rights and interests of others type of false lawsuit crime,excluding false lawsuit crimes that simply cause obstruction of the judicial order.At the same time,the "prepayment of fines" as one of the criteria for assessing the defendant’s "plea of guilty and punishment",to avoid the judge’s discretion in the "prepayment of fines" and "plea of guilty and punishment".The "plea of guilty" is considered confusing,resulting in the problem of misdemeanor sentencing.