The Rational Framework Of Impairing-testify Crime System

In 2015,the new added provision,the crime of false lawsuit in Amendment(Ⅸ),which not only strengthens the criminal law regulation of the civil litigation activities,but also leads to the theoretical demand of a systematical explanation of the difficulties and doubts in the regulation of the criminal law.The amendment enlarges the scope of refusing to provide the evidence for specific crimes while deepening the contradiction between refusing to provide and concealing evidence,which indicates that its research goal will not be accomplished overnight.However,exploring and changing the status quo which is in the mess of entangled norm-setting mainline,and reducing the risk of dishonesty in civil or administrative litigation activities caused by the illusory and infrequent testify crime,are both challenging topics.In this regard,the paper is focused on the identification of the false degree of verbal evidence in three major procedures,clarifying the threshold of crime on destruction or concealment of the physical evidence,and striving to relieve the tension between the testify crime of shielding and concealing,or to demonstrate the scope of witness in the crime of impairing testimony.It would be undoubtedly overestimated for the law interpreters to explain a clearly flawed normative system without loopholes.Even if the law interpreters can keep a close watch on the individual fact about testify crimes,because they might still confuse by the connection between norms,they might lose themselves into predicament of literal concept,and forget the ideological foundation and normative system behind the literal meaning.Starting with the burden of proof and the standard of proof in different litigation,according to the orderliness of the three procedures,this paper aims at clarifying the application point of criminal law regulation,the whole structure from point to line,and grasping the system of obstruction of testifying charge.The purpose is to clarify the role of criminal law regulation.Only in this way,the timely and appropriate criminal law regulation of the three major litigation activities can be realized.On the basis of the existing evidence crime system,taking the relevant charges set in the 2nd section of the 6th chapter of the Criminal Law as the mainline,this paper selects those charges that directly obstruct the use of evidence,and carries out the discussion on the elements of constitutive element and charge system,so as to seek inspiring advice from distinguished experts.The full text contains 6 parts,about 150,000 words.The first part defines the concept of evidence,combs the types of illegal evidence in different litigation,and clarifies the similarities and differences between the crime of evidence and the crime of obstruction.Firstly,the concept of evidence can be traced to the source of procedural law theory,which lead to the change accordingly.With the support of the new procedural law theory,the essence of evidence adopts “material theory” among the theories like “fact theory”,“material theory”,“carrier theory”,which is the theoretical basis for the criminal law to regulate the crime of evidence.Secondly,the analysis of the principle works in the major procedural laws shows that only the proof that reaches the standard of the evidence is the basis for ascertaining the facts of the case.The power of proof refers to the ability of clear facts to be proved,which is also a necessary condition for transforming it into a final basis through the procedure of proving in court.The two side of the force of proof are the authenticity and relevance of the evidence,which determines the necessity of criminal law regulation.Thirdly,the system of evidence crime and impairing-testify crime system is divided.Evidence crime refers to all crimes related to the collection and use of evidence,and the impairing-testify law system directly related to the evidence.The latter division criteria are: direct infringement of the right of action or abuse of litigation rights;the act with a greater degree of harm or crime included in the crime;the subject of crime basically limited to the participants in the proceedings.In the second part,the paper makes an inventory of the current provisions of the criminal law,and analyzes of the contradictions and loopholes in the criminal law regulation,which can contribute to demonstration of countermeasures.First of all,the phenomenon of perjury in the three major procedures has been repeatedly confirmed by the data and facts.In Article305 of the Criminal Law,the scope of perjury is limited to criminal proceedings,and the perjury in civil procedure is at most judicial detention,which leads to the two lawsuits cannot be properly regulated.Secondly,legislators set relevant charges from the perspective of the scope of litigation,the subject,and the way of fraud,etc.,causing overlapping charges and increasing the difficulty in choosing specific charges.Article 306 of the Criminal Law has legislative discrimination.Thirdly,the act of destroying and forgery of evidence should be created a new accusation separately,which leads to the need of different regulations on the behavior of litigants and criminal litigant participants.Finally,whether the recorder and the victim become the subject of perjury,whether the subject of preventing the witness from testifying includes the litigant,and how large the scope of the witness of the crime is anunsolved question left by the current criminal law.In the third part,the paper establishes the foundation of value and technical standard for reconstruction of impairing-testify law system.First of all,in the era of litigation activity,lawsuit is the main method to solve the social dispute and fairly chasten the evildoers.Litigation has entered the era of active which shows that people can and has been in the use of legal means to make their voice heard and maintain their own rights and interests.As the last security law,regulating the civil and administrative procedural testify system,is of great necessity.Secondly,the regulation of criminal law aims at realizing the equal protection of the right of action in civil litigation,and to protect the litigation rights and substantive rights of administrative counterparts.In the trial-centered judicial reform,regulating the use of evidence aims at achieving the fairness and justice of individual cases.Thirdly,according to the standards of providing false proof,destroying evidence,concealing evidence and preventing testifying,the crime of perjury is established as the first charge in the series.Then one by one to analyze the elements of specific charges,and the elements of adjacent charges are demonstrated one by one to finally complete the reasonable framework of the impairing-testify crime system.In the fourth part analyzes the characteristics of the first charge of perjury and explains its relation with the system of impairing-testify crime.Firstly,in the civil or administrative litigation,the court punitive measures are quite limited,the court retains the ritual element is to tell ordinary people that this is a place in which fully reasonable argument instead of doing evil can be allowed.Then,what should be followed is the solemn ceremony of the criminal law regulation.Secondly,the subject of the perjury including of witnesses,appraiser.and translators.By contrast,litigant including the litigant of criminal victims and the recorder are not the subject of perjury.Experts assistant is neither a witness nor the appraiser.When expert assistant cheats in cross-examination with characteristic which is similar to the perjury,it is appropriate to take the non-criminal punishment.Thirdly,the crime of perjury is a form of crime.Article 305 of the Criminal Law limits the crime of perjury to "intent",and takes "intention to frame others or to conceal criminal evidence" as the condition of establishment,which is a direct intention.The so-called "concealment of guilt" means both concealing the fact of others’ crimes through false statements and concealing the evidence of others’ guilt through false statements,which is consistent with the doctrine of "no one shall be presumed guilty without trial" in the criminal procedure law.In the fifth part,this paper analyzes the key elements of the newly established crime of destroying and forging evidence,and explains its relation with impairing-testify crime system.Firstly,the article 306 of the current criminal law has defects and should be deleted.The crime of destruction and forgery of evidence is set as a charge in the new article.This choice can solve the intricate problem of the mixing of the articles 306 and 307 of the current criminal law.Secondly,the object of destruction and forgery of evidence refers to material evidence.Even at the normative level,concealment should not be interpreted as destruction.In addition,according to the theory of principal offender and joint crime,destruction and forgery of evidence are of the same nature as helping to destroy and forgery of evidence,so it is in line with legal logic to set the former charge instead of the existing one.Thirdly,the use of this use should be accompanied by a number of specific exceptions.If the close relatives of the litigant help him destroy or forge evidence,the relatives usually don’t constitute this crime.The judicial officer in charge of this case destroy the forged evidence shall be punished as the crime of bending the law for self-seeding;The crime suspects or the criminal defendant destroy or forge the evidence either cannot commit this crime because afterwards act of impunity or no expected possibility.In the sixth part,the paper analyzes the crime of preventing testifying and concealing evidence from incrimination standard.It explains its relation with impairing-testify crime system.Firstly,it is suggested to cancel the specific charges of obstructing testimony and use the crime of preventing testimony.According to the provisions of the three major procedural laws,the act of preventing the new charges contains inducements in other ways than bribery,which is a conclusion derived from the provisions of the current criminal law.Moreover,this crime is applicable to three lawsuits.Secondly,the paper analyzes the similarities and differences of refusing to provide guilty evidence and concealing guilty evidence.From the criminal legal interest protection,it evaluates the criminal law limit behavioral pattern and the scope of "other crime" of the actual effect.The paper tries to ask its logic self-consistent,and reviews slow response of criminal law."Hidden" is put forward to replace the idea of "refused to provide" normative expression.Thirdly,it clarifies the connection between money laundering,concealing,transferring and concealing drugs,concealing the criminal income and income.It reveals the common nature of concealing evidence,and thus it expunges the whole circle of impairing-testify crime system.To sum up,the simplified impairing-testify crime system contain the specific crimes asfollow: the crime of perjury;Crime of destroying and forging evidence;The crime of preventing testimony;the crime of retaliate against witnesses,appraiser.and translators;Crime of refusing to provide evidence of espionage,terrorism and extremism;Crime of concealing criminal gains and proceeds,crime of harboring and concealing;crime of false accusation.