Study On Litigation Fraud And Criminal Control Thereof

Although two traditional conceps which include"avoid litigation"and"abominate litigation"have being rooted in the minds of most of Chinese populace for a long time, the rule of law has become increasingly accepted and advocated in nowadays, litigation fraud is increasingly occurred nationwide More and more such litigation fraud cases have been reported in some nationally known media, some of which cases invovle startling amount and occasion serious social influence. In contrast, litigation fraud is widely recognized to be beyond the control scope of Civil Procedural Law; and no direct corresponding provision in the currently appliable Criminal Law of the P.R.C. can be applied tosuch kind Litigation Fraud pursuant to the principle of Legality,therefore, in criminial practice, the disposal of litigation fraud differ from one to another. Notwithstanding it arouses the greate interest of theorists'in a recent time and a handful papers on such issues have been published, unfortunately no systematical research result in relation to such issue has been seen upto now. So it is no wonder that no unamous opinion has been formed. Accodiingly, this paper is determined to elaborate on and address such disputed issue by presenting her own opinion with respect to whether guilty and what kind of guilty of the doer thereofby means of analyzing litigation fraud in the view of Criminal Law as well as taking the control experience of other countries'for referrence.This dissertation, except the introduction part, is constituted by four sections 1. Overview of litigation fraud; 2. Theory and practice regarding the identification of litigation fraud; 3. Analysis on litigation fraud in the view of of Criminal law; 4. Suggested ways and measures to prevent and control litigation fraud by means ofCriminal law. This dissertation contains 39000 words in total, in which footnotes amounts to 3000 words approximately.In the Introduction Part, the author focuses her attention to highlight the theory value and practical meaning of this topic after a brief introduction of the current situation of Litigation Fraud and the possible harmful results caused thereby. and there is no commonly acknowledged identification of litigation fraud in our current legal practice.Section 1. Overview of Litigation Fraud. In the beginning, some viewpoints of the definition of litigation fraud, not only from China, also introduced from Japan, will be stated. Then it is followed by comparative analysis of above opinions from five different perspectives. All of these draw author to shape her own standpoint that litigation fraud is a kind of conduct to illegally possess other people's property. The conductor purposefully misleads judge to conclude an incrroect false judgement which will unjustly enrich the conductor by enforcing sufferer's property or property-like interest to be defrayed to the conductor or a third party through means such as mendacious statements, forged evidences, initiating a fraudulent litigation, or a fraudulent claim.Section 2. Identification litigation fraud both in theory and practice. In this section, the relevant foreign provisions and legal practices with regard to litigation fraud are referred to firstly. Meantime, three major standpoints among our legal theorists are stated one by one, which include specifically Innocence of litigation fraud, Guilty of litigation fraud, as well as improvement of provisions concerning litigation fraud.Section 3. Analysis of litigation fraud in the view of criminal law. In an attempt to introduce the conception of"three-angled swindling"into our criminal theory, the first part of this section focus on criticizing our traditional theories in relation to Crime of Swindling. Thereafter, the author make a comparative study on litigation fraud and Crime of Swindling from the perspective of constitution of a crime. Meanwhile,the author will further challenge and refute another popular opinion that litigation fraud should be identified as Crime of Extortion. Finally, the author will reason why the"Replay"from Supreme People's Procuratorate can not deal with litigation fraud cases properly.Section 4. Suggested Measures to improve the current Criminal Law to prevent litigation fraud. the Author presentst her own opinion that litigation fraud should be identified as Crime of Swindling on the ground of comparison of two ways of identification, namely Crime of Swindling and creation of a new crime. Then many other questions, including attempt of crime, sum of crime, and concurrent crime will be further discussed.