Under the market economy system, each person has the right to pursue their own interests in order to comply with the market rules, the emergence of false litigation has exposed some people to take the way to circumvent the rules of the market to maximize the interests of the pursuit of. To strengthen the study of false litigation is helpful for us to grasp what is false lawsuit earlier and more accurately, so as to ensure the operation of the market economic rules, and to realize the maximization of the interests of each person.
First, the definition of false litigation
What is false litigation, there is no scientific and unified understanding in the field of legal theory and practice, we have a lot of discussion on the "malicious litigation", but few of the discussion on false litigation. Some scholars believe that the false litigation, also known as litigation fraud; litigation fraud, but also known as malicious litigation; some scholars believe that the false litigation and malicious litigation is two different concepts. I believe that the false litigation and malicious litigation, although there are many similarities, but there is a difference. False litigation means the parties to a civil suit malicious collusion, conspiracy to prepare false facts and evidence to the court proceedings, the use of the court's judicial power, executive power, illegal occupation or damage to the state, collective, citizen's property or interests of litigation. Malicious litigation, also known as fraud, refers to the behavior of people in illegal possession for the purpose, fictional facts, conceal the truth, through the false civil litigation to deceive the court, so that the court made a false judgment, thus occupying other property, the amount of the larger.
False and malicious litigation has its common characteristics: first, there is a fault in the subjective behavior, and their behavior is illegal. Two is that the behavior of people to pursue the purpose of general have to seize the property or obtain illegal interests. Three is the behavior of people in the legal form of civil proceedings to cover up their illegal purpose. Four is the realization of the illegal purpose of the behavior depends on the court's judicial power and the executive power, the legal proceedings of the legal coat is malicious use of behavior. But at the same time, there are some differences: first, the main part of the false litigation is the original, the defendant and the parties; the main body of the malicious litigation is usually only one party. The two is that the false litigation has the collusion, the two parties of the false litigation are not antagonistic, even if there is, but also the "false" confrontation; malicious litigation is generally unilateral acts of malicious litigation, there is no collusion between the two sides, and thus still have a confrontation. Three is a violation of the object of different. The legal rights and interests of the third party, rather than the interests of the other party, are infringed upon by the false action. And the object of malicious action against the object is usually limited to the other party, but not third people. Four there is no real civil legal relationship between the original and the accused, because the main body, the fact and the evidence of the prosecution are completely fictitious. This shows that there are many differences between the false and malicious litigation, this paper is to launch a number of issues on the false litigation under the definition of such a problem.
Two, the necessity of the criminal law of the false action
In recent years, the case of false litigation has increased gradually, according to incomplete statistics, Dongyang Zhejiang court nearly 90% of the cases, said the judge had been exposed to the case, the 80% said that the category of cases are increasing year by year. In such a situation, in addition to the need for civil law should be external, there is no need to impose criminal law to deal with it? The answer is yes, the main reason is:
(a) false litigation has serious social harmfulness
Because of the false litigation usually in the form of legal proceedings, with very strong deceptive and covert, so that the court has become a false lawsuit to infringe upon the legitimate rights and interests of the arena. The social harmfulness of false litigation is mainly reflected in the following three aspects: first, the false litigation damages the authority of the state judicial authority. Some scholars have pointed out that "the social control, especially for the modern civilization, the social control, probably nothing is more effective and more economical than a legal authority. Because a society once set up the authority, that means that people's behavior does not need too much social pressure, will be oriented to the rational social cooperation, in a certain sense, the core problem of modern social control is to create a realistic legal authority." But the false litigation to the litigation as a tool, the use of the authority of the court, the use of people's trust in the law, its intention is not to resolve disputes, so that their legitimate interests are recognized and protected, but the phenomenon of false disputes, so as to seek personal gain. This makes the function of the litigation, the litigation in a certain extent, it is no longer the effective system to resolve disputes, and may become a kind of tool that can be used by the parties to seek illegitimate interests, so that the legitimate rights and interests of innocent citizens should not be damaged. Two is a waste of a lot of judicial resources. In solving social contradictions, the judicial need to invest a lot of manpower and material resources. However, in the face of a large number of disputes, these resources are often lack of justice and has the scarcity of. There is no real legal requirement in the false litigation, but it needs to consume the judicial resources of the country, and the follow-up of the court's retrial, the case of foreign litigation or petition also consume judicial resources, and this kind of consumption can be avoided, which can avoid the consumption is wasted. Three is the serious damage to the legitimate interests of the outsider. False lawsuit behavior with very strong deceptive and concealment, easy to cause false and false. The false lawsuit behavior through collusion, falsifying evidence and confuses black and white confuse right and wrong, making false litigation, the court judge mistakenly believe that false litigation between the plaintiff and the defendant there is a dispute, and incorrectly mediation or adjudication, indirectly to dispose of the outsider of the property or property interests, leading to the outsider of the property or property interests of the reduced, against the legitimate rights and interests of the outsider.
(two) there are still some defects in the exploration of the legal system of the local courts.
From the existing experience, the court system in Zhejiang in order to prevent and curb false litigation, to take some positive measures to guard against false litigation and regulation, such as Taizhou City, Zhejiang Province, the introduction of the prevention of litigation fraud, Yuhuan County Province, Zhejiang Province, the court issued a number of provisions on prevention and investigation of false litigation cases, the main practice is in the trial stage and the report; investigate false litigation cases and related personnel and be fined. The author believes that these measures have certain effect on preventing and curbing false litigation, but still can not effectively prevent false litigation, because these measures can only be formulated under the existing legal system, and because people are pursuing the interests of the economic people, compared with the cost of false litigation, false litigation behavior of people in the pursuit of a huge contrast. Therefore, in order to prevent and contain false litigation, it is necessary to raise the illegal cost of false litigation --- the legal regulation of criminal law.
(three) the legal system of civil law is not sufficient to prevent and punish false litigation
Even if the revised "Civil Procedure Law" provisions of the compulsory measures of nuisance civil litigation is not sufficient to deter false litigation. In the judicial practice, the court generally takes the false action as the case of the obstruction of the civil procedure, usually takes the penalty measure is the fine and the judicial detention. But for some parties, impose the maximum fine (personal fines from 1000 yuan to 10000 yuan, the unit penalties up to a maximum of 30 million yuan) and judicial detention for 15 days, obviously not with false litigation brought income. Therefore, in order to deter false litigation, to prevent the occurrence of false litigation, it is necessary to carry out the criminal legal system.
Three, the current situation of the criminal legal countermeasure of false action
False litigation is a serious violation of the law, has serious social harmfulness of illegal behavior. Its "serious" not only does it violate the legitimate rights and interests of the third people, it is more important that it dares to engage in illegal activities, the court as a "stage", the judge as a "fool" playing with the "tools". Therefore, the false lawsuit to the judicial harm is the fundamental, the system, is the most vicious injury. Although false action occurs in the field of civil litigation, but the harm is the field of criminal procedure of perjury and obstruction of justice crime had the no less. Therefore, it is necessary and feasible to carry out the criminal sanction completely, but it is a pity that the current situation of the criminal legal countermeasure of the false lawsuit is very serious.
(a) how the criminal law of the criminal law on the crime of false litigation in China is not yet clear.
Crime from the point of view of form, the false lawsuit behavior and our country criminal law provisions of "perjury", "prejudice to testify crime", "helping to destroy or falsify evidence of the crime" and "fraud" in the form of elements of some similar, but owing to the specific scope and specific behavior in the form of the several crimes, so it's not of false litigation be corresponding criminal sanctions.
One is the crime of perjury. In the surface form and the false lawsuit behavior more in line with China's criminal law on the crime of perjury elements, but "criminal law" section 305 stipulates clearly "in criminal proceedings, witnesses, identification, recording, translator who have important plot with the case to purposely makes false proof, identification, record, translation, framing the intention of others or conceal evidence..." Thus, the crime of perjury provisions of the criminal law of the people's Republic of China only on the field of criminal litigation acts of perjury of conviction and sentencing, and the subject of the crime of perjury have special restrictions that can only be "witnesses, identification, record, translators," four kinds of people. Perjury on the field of civil litigation impairing judicial behavior does not apply, at the same time, false lawsuit behavior subject is witnesses, identification, recording, translator who the subject of litigation, is not fully consistent with the main elements of the crime of perjury, also is to say, and not to perjury conviction for false litigation.
Two is the crime of obstruction of evidence. "Criminal law" article 307. In the first paragraph of provisions, the so-called nuisance to testify the crime is to violence, threat, bribery or any other means a witness from giving testimony or instigates another person to give false testimony. False litigation, the parties malicious collusion, collusion in the preparation of false facts and evidence to the court filed a lawsuit, so there must be instigate others to commit perjury behavior. But the obstruction of witnessing a particular method namely "to violence, threat, bribery or any other method", which requires the false lawsuit behavior only in line with the crime of impairing testifying to the specific circumstances to conviction and sentencing. At present, the exploration of the criminal liability of the criminal liability of the crime of obstruction of evidence in the judicial practice field.
Three is to help destroy, forgery of evidence. "Criminal law" second 307th provisions, to help destroy or forge evidence, the circumstances are serious, which constitute the crime of helping destroy or forge evidence. The main body of the crime of helping destroy or forge evidence is the legal age, the natural person who has the ability to identify and control. It is the main body of the parties to help destroy and forge evidence. But in the judicial practice, there are some cases of the crime.
Four is the crime of fraud. "Criminal law" 266th provisions, the fraud of public and private property, the larger amount of fraud. In false litigation, the parties are actually the method to create false facts and evidence in order to occupy the behavior of other people's property. In some cases, there are similar to the crime of fraud. According to the Supreme People's Procuratorate Legal Policy Research Office in October 24, 2002 on the issue of how to apply the legal issues of the civil judgment of the court in the case of the court to apply the law to apply to the legal issues, this false civil action against the people's Court of normal trial activities, the people's court in accordance with the relevant provisions of the civil procedure law, not to be held criminally responsible. If the act of forging evidence when implementing the fake behavior of companies, enterprises, institutions, people's organizations, seal, or if the behavior of people instigate others to commit perjury behavior, constitute a crime should, in accordance with the relevant provisions of the criminal law to pursue the criminal responsibility of the parties. Henan political and law Cadre Management Institute Professor Zhang Youliang believes that this provision has its rationality, many false civil litigation behavior is not fully consistent with the elements of the crime of fraud.
In addition, some scholars believe that the act of false litigation can be "the defender, the agent of the destruction of evidence, false evidence, the crime of obstruction of evidence" to pursue the criminal responsibility of the perpetrator. According to the provisions of the 306th article, the defense, the agent of the destruction of evidence, evidence of forgery, the crime of obstruction of evidence in criminal proceedings, there is a specific subject, the defense and the litigation agent, apparently for these two, the false litigation are not in line with. It has been proposed that the false litigation is to use the force of the judgment of the court forcing the victim to deliver the property, the false litigation as a stress is more appropriate and should be defined as the crime of extortion claims. Stipulated in China's criminal law article 274 of extortion to occupy the property of others, usually in the form of direct access to the occupation of the property, that the behavior of people from the threat or coercion to force can directly to the victim. And false litigation, the behavior of people to get the property in their own hands, and the behavior of people is the use of the judicial authority to achieve this purpose, this force does not directly act on the victim. Thus, it is difficult to use the false lawsuit behavior to punish the crime of blackmail and impose exactions on.
Above all, the behavior of the false litigation in our country's current criminal law environment does not have the direct stipulation. According to the criminal law crime legal principle virtually eliminates the criminal perjury, obstruction of evidence, crime of assisting in destroying and evidence of the crime of forgery and fraud, crime of false litigation the applicability of, that false litigation in the environment criminal law and no clear policy to adjust.
(two) the criminal justice of the false action in the local judicial practice has been bold breakthrough, but the situation is not optimistic
Look at the private economy developed, Zhejiang, the complex relationship of private lending, the phenomenon of false litigation more frequent. The high court of Zhejiang Province on the province's false litigation case research results show that manufacturing false lawsuit behavior of people's Congress is punishable by fines, detention, and can successfully pursue false litigation manufacturing criminal liability cases are few and far between. "How the behavior of the false litigation, the current legal provisions of our country is not clear," Shaoxing County, Zhejiang Province, county procuratorate attorney general Wang Rongbiao analysis. Some local judicial authorities think should be to fraud to shall be investigated for criminal responsibility; some scholars claim set extortion; there is the view that, false litigation can be as tort to treat. It is understood that both the academic and practical circles, the legal responsibility of the false litigation should bear, there has never been a consensus. The Supreme People's Procuratorate law and Policy Research Office in 2002 to a provincial Procuratorate "on the falsification of evidence obtaining Court Civil referee possession of the property of others how to apply legal response" (hereinafter referred to as the "reply") has pointed out: false litigation should not be to the crime of fraud shall be investigated for criminal responsibility of the perpetrator. But if a person's behavior constitutes a crime, the criminal liability shall be investigated in accordance with the relevant laws. The spirit of "is the current law is not clear on the one hand, on the other hand is the multiple and serious harm of the false lawsuit, the people's Procuratorate" reply "is within the framework of the current criminal law, to the false lawsuit to give whatever punishment."
Wang Rongbiao believes that the introduction of the answer to punish false litigation provides a reference. However, the "answer" is not a judicial interpretation, the effectiveness of the limited. In such a predicament, the high court of Zhejiang Province, through a large number of research and demonstration, in December 2008 announced the "on the civil trial to prevent and investigate the number of cases of false litigation. By a provincial high court to prevent and investigate the relevant provisions of the relevant provisions of the case of false litigation, which is the first case in the country. Zhejiang Province, the views of the false litigation, if the circumstances are serious can be investigated for criminal responsibility. From the judicial practice of the whole Zhejiang Province, because there is no clear provisions of the criminal law, it can only be based on the provisions of the 307th provisions of the criminal law, the creditor and the debtor of false litigation to the crime of obstruction of evidence, to help others forged evidence of criminal responsibility. Taking Shaoxing City as an example, since the second half of 2006, Shaoxing municipal procuratorate has handled cases of false civil lawsuit 19, in addition to take a minority of cases suggested that the court to prevent civil penalties, there have been 21 people have been sentenced. Although the court system in Zhejiang province has been a breakthrough in the criminal justice of the false litigation, but the scope is still very narrow, such a breakthrough can not really solve the growing number of false lawsuits brought about by the judicial authority and the legitimate interests of others.
(three) absence of judicial interpretation
In spite of the Legal Policy Research Office of the Supreme People's Procuratorate had in 2002 to the false lawsuit to a provincial Procuratorate "on the falsification of evidence obtaining Court Civil referee possession of the property of others how to apply legal response" (hereinafter referred to as the "reply") which has made the response, but after all, the "answer" is not a judicial interpretation, the validity is inevitably limited. And due to the limitation of current criminal law of false litigation response does not directly, so to the false lawsuit of criminal sanctions, China's judicial interpretation still looked pale and weak.
Four, the perfection of the criminal legal countermeasure of false action
The Supreme People's Procuratorate of the civil administrative procuratorial Office of the public prosecutor Sun Jiarui told reporters that the false civil procedure is: first, the main body of the lawsuit, that is, the plaintiff or defendant's citizens, legal persons or other organizations do not exist or have lost the subject qualification; two is the case of the basic facts of the case, the Party (or parties) fictitious facts, with the aid of"
The court 's decision to violate the legitimate rights and interests of the outsider, three is the key evidence of false, the parties through the false case of key evidence, causing the wrong referee. At the same time, Sun Jiarui further pointed out that "false litigation can breed and spread, from subjective aspect of human behavior is driven out of interest, the omission and the presence of relevant legal system is an important objective conditions." Therefore, in order to regulate the growing number of false litigation, we should proceed from the following:
(a) to strengthen the theoretical study of the false litigation, especially the study of how to apply the criminal policy to the false litigation
On the Internet, I have searched the Internet and found that the problem of how to apply the criminal policy to the false litigation is not much. Theory is the guide of action. It is because of our legal theory and practice that the lack of in-depth study and Discussion on the false litigation, so we have not made a contribution to the criminal policy of the false litigation. The Supreme People's court in the twenty-first academic seminar as an opportunity to put forward the study of the criminal policy of false proceedings, which is a very good initiative. Moreover, we should take various forms to strengthen the study of false litigation in the legal theory circle, think that how to impose criminal regulations on the legislation and judicial perfection of the legal system.
(two) strengthening the judicial interpretation of the existing criminal legislation
According to the relevant provisions of our constitution, the Supreme People's court and the Supreme People's Procuratorate are not entitled to the power, only in the framework of the existing criminal law to explain the application of legislation in the judicial practice, but the Supreme People's court and the Supreme People's Procuratorate judicial interpretation of the judicial practice has a strong legal constraint. On the regulation of false litigation, the Supreme People's court and the Supreme People's procuratorate should be on the basis of the 2002 "on how to apply the legal questions of the court" s civil judgment to the court "s civil judgement. But undeniable is, due to the limitation of the existing criminal law. Before criminal law is not modified, this judicial interpretation only is expedient of false litigation to criminal regulation.
(three) to encourage local judicial authorities to make bold and innovative, bold breakthrough, and to accumulate experience in the Criminal Countermeasures of false action
As China is still in the primary stage of socialism, there will be no change in the short term, there will be a difference in the economic development of the country, and there will be a difference in the judicial practice, so it will encourage the local judicial authorities to make bold innovations, bold breakthrough, and accumulate experience in the criminal procedure of false litigation. Zhejiang Province, the court system is worthwhile to continue to promote this initiative, be of great advantage to the improvement of legislation in china.
(four) the amendment of criminal legislation, the addition of civil false litigation
Some scholars put forward to cope with the increasing of the false litigation and criminal responsibility accountability, should revise the relevant provisions of the criminal law of the people's Republic of China, such as the expansion of perjury, crime of impairing testifying and help destroy, the scope of the crime of fabricating evidence, the author thinks that such a proposal is difficult to meet should be to the false lawsuit to be the regulation of criminal law. We should change the criminal law, the addition of a new crime of false litigation, namely the crime of civil false litigation. This is because, as mentioned earlier, in our existing criminal law crime of perjury and obstruction of witnessing, help to destroy or falsify evidence of the crime, scope is specific, subject or only limited to four kinds of particular subject, or limited to specific methods, so only to modify the provisions of the existing criminal law will not only break the existing criminal law system, and not conducive to the special regulation of false litigation. Therefore, we should add the crime of civil false litigation, specifically to regulate the specific false action.
In the criminal law theory, whether a behavior should be stipulated as a crime, the social harmfulness of the behavior should be considered, and the social harmfulness of the behavior should be considered. The growing number of false lawsuits has seriously damaged the judicial authority, wasting judicial resources, infringing upon the legitimate rights and interests of others, and therefore it is necessary to make criminal regulations on the false litigation, so according to the current criminal law of our country, it should be a special crime rather than a simple modification to regulate such serious harm social behavior.
Reference
1 "criminal law of the people's Republic of China".
2 Gao Mingxuan. [M]. Beijing: Peking University, higher education press, 2007
3 Liu Shuoling. On the false lawsuit and its management [J]. Jiangxi social science. 2010 (02).
4 "Zhejiang Provincial Higher People's court in the civil trial to prevent and investigate the number of cases of false litigation", the Zhejiang Provincial Higher People's Court of justice, the 2067th meeting of the judicial committee of the meeting.