Research On The Judicial Application Of The Crime Of False Litigation

False litigation has serious social harm,which not only infringes the legitimate rights and interests of others,but also causes serious damage to the national judicial order.Therefore,false litigation should be punished by criminalizing,so as to protect the legitimate rights and interests of the people and the national judicial order from being damaged.As far as the constitutive requirements,the criminal object of the crime of false litigation is a single object as the judicial order rather than the compound object as judicial order and the legitimate rights and interests of others.The criminal subject is the general subject;Subjectively,it is intentional,and objectively,it manifests that the actor filed a civil lawsuit by fabricating facts.Judging from the specific manifestation of judicial practice,false litigation can be divided into property-infringing and non-property-infringing false litigation according to the object of criminal infringement;According to the subjective intention communication between criminal subjects,it can be divided into malicious collusion and unilateral fraud false litigation;According to the purpose of bringing a lawsuit,it can be divided into two types of false litigation: illegal possession and non-illegal possession as the aim.By investigating the criminal judicial trial practice of the crime of false litigation in China in the past five years,it is found that there are three problems: the identification of the criminalizing criteria is vague,the definition of this crime and other crimes is unclear,and the qualitative identification of the crime is confusing.The problem of vague criteria for criminalizing identification is mainly manifested in the different trials of whether the "partially tampered" false litigation constitutes the crime of false litigation;The unclear definition of this crime and the other crimes is mainly manifested in the confusion of crime of false litigation,perjury,obstruction of testimony and other evidence crimes and fraud crime in the trials of local courts,which,to a certain extent,makes the crime of false litigation impractical in the criminal judicial application;The confusion in the qualitative identification of crimes is manifested in the unclear understanding of the relationship between "judicial order" and "legitimate rights and interests of others" stipulated in the provisions of the Criminal Law in court trials,as well as the unclear understanding of the what kind of behavior of the perpetrator reaches the extent of "disturbing judicial order".In order to solve a series of problems existing in the judicial trial practice of the crime of false litigation,it is necessary to put forward corresponding solutions by investigating the criminalization process of false litigation,its social harmfulness and criminal punishment,so as to provide a gauge for the judicial determination of the crime of false litigation in the future.In view of the vague criteria for criminalizing identification,it is necessary to clarify the meaning of "fabrication" in the provisions of the Criminal Law.By explaining the meaning of the word“fabrication” and the main legal interests that the crime of false litigation protects,it should be considered that the legal interests mainly protected by the crime of false litigation are the national judicial order,and "partial tampering" false litigation has already caused damage to the national judicial order regardless of the object of tampering,so it should be considered that the behavior of "partial tampering" false litigation constitutes the crime of false litigation.In view of the confusion in the definition of this crime and the other crimes,it is necessary to distinguish it from evidence crimes and fraud crime with the help of the theories of imaginative joinder of crimes and implicated crimes in criminal law theory.On the one hand,there is no implicative relationship between false litigation crime and evidence crimes,but it should be judged whether it constitutes false litigation crime or evidence crimes according to the time node when the actor provides false evidence.On the other hand,there are significant differences between false litigation crime and fraud crime in three aspects: crime object,crime target and behavior pattern.Therefore,we should not adopt the theory of "triangle fraud",but clearly distinguish fraud crime from false litigation crime in judicial practice.In view of the confused qualitative identification of crime forms,the key lies in how to judge when the crime of false litigation,as a behavioral crime,reach the extend of "disturb the judicial order".The crime of false litigation,as stipulated in the Criminal Law,originally meant to "file" a civil lawsuit.Therefore,it should be recognized that when the court decides to hear the crime,the judicial order will be infringed,and the accomplishment of the crime will be marked by the infringement of legal interests rather than the discovery of behavior.When the court decides to hear the case,it means that the national judicial order will be damaged.At this time,it constitutes the accomplishment of the crime,it should be considered to constitute criminal attempt if the behavior of false litigation is found before the court decides to hear the case.The actor’s behavior,which leads to the court hearing many times,wrong judgment or execution of corresponding judgment,should be the aggravating circumstance of false litigation’s crime,rather than the basic circumstance that constitutes the completion of the crime.