The Qualitative Thinking Of Litigation Fraud

litigation fraud means the perpetrator provides a false statement or produces false evidence in the civil process, so that the court could make the judgments benefit themselves, obtaining property or property interest. Obviously, the harm of fraud litigation is more serious than the common fraud to society. this kind of behaviour does not only violate the property ownership of other people, but also undermines the normal civil order, damage the impartiality and the authority of the judiciary. Therefore, from perspective of nature, the criminal law should be made entirely negative evaluation of the behaviour. However, from the perspective of reality, Chinese criminal law does not regard fraud litigation as independent crime. In this case, it is questionable to make qualitative decision of litigation fraud. This paper will make research on qualitative nature of litigation fraud.This paper is divided into three chapters, chapter1, the definition of fraud litigation; chapter2, qualitative differences of fraud litigation; chapter3, identify the nature of fraud litigation. There are seven sections in the three chapters, which explain the litigation fraud from different perspectives, so the paper can present a complete explanation of the theory, practice and legislation of litigation fraud.The first chapter of the thesis explain the concept,form and the harmful effects and characteristics of litigation fraud. litigation fraud is a relatively unique violated behaviors which present in recent years, there are various different manifestations of the behaviors. According to the information currently available to the author, from the evidence sources of civil lawsuits filed by the perpetrator, litigation fraud can be roughly divided into three kinds: first, they forged evidence by themselves; Second, they use victims' privacy to compel them form the relationship of debt and creditor through the fictitious written form; The third, they use the victims' errors or mistakes and the debt instruments which victim has been fulfilled to prosecute to the court, demanding victim to fulfill the debt instruments again. Fraud litigation not only violated the obligations of the parties, but also interferes the normal civil order, caused tremendous waste of extremely limited judicial resources, it is also likely to lead to a miscarriage of justice, undermine the authority of the trial, destroy the integrity of civil principle, this kind behavior can have seriously negative effects to the law. By the analysis of elements and the implementation process of fraud litigation, we can clearly outline the behavioral patterns of fraud litigation: deceive (the perpetrators fabricate the truth and conceal the fact, forged evidence and file a lawsuit to the court)—erroneous understanding (the perpetrator's fraud litigation misleads the court )—disposal of property (the court dispose of the victim's property or property interests under erroneous understanding)—Legal Consequences (the victim's property or property interest were occupied by the perpetrator, so the victim suffered loss).Chapter II of the paper makes inspection about Qualitative differences of the fraud litigation between German,Japan and China. Provide a theoretical reference for the Chinese criminal legislation furthermore. The scholars of Germany, Japan and other countries generally think fraud litigation is a special form of"fraud triangle". There are two views about whether fraud Litigation constitute fraud in the criminal field of Germany and Japan. The negative theory regards fraud litigation as fraud; the affirmative theory believes fraud litigation can not constitute fraud.In Chinese criminal field, the majority agree with positive theory and the minority agree with negative theory. Both of them have reasonable foundation. However, the criminal law, for which the most important role is maintain order and restrict to depriving of one's personal rights and property rights is the legal result, should obey the legal principle. Though criminal law ensures the second regulation, the criminal law has the nature of aggressiveness as the public law, if gauge system doesn't work well, it will hurt innocent people. Under the situation of Without explicit regulation in criminal law, with some scientific interpretation maybe can satisfy the need of actual judicial practice temporarily to punish crimes, but it does not solve the problem fundamentally, can only leave it to legislation. therefore, set up corresponding accusation on criminal law is very necessary to give a punishment on fraud litigation.Chapter III, is the key part of the full text. The first part,identify the character of fraud litigation by comparing fraud litigation to fraud. fraud and fraud litigation are the same in the form, but the nature of them are different. It should not regard fraud litigation as fraud, and should be included into the scope of justice obstruction. The second part identified the litigation fraud by the criminal law. First, evaluated the"reply"which promulgated by Supreme People's procuratorate, according to the author, the"reply"in the framework of the existing criminal law which deal with the litigation fraud is correct. The inclination of qualifying litigation frau as obstruction of justice has emerged."Reply"is doesn't have the effectiveness of judicial interpretation, therefor, both in terms of content and the effect has great limitation. If we want to punish litigation fraud effectively, the fundamental way is to modify the criminal code, adding"litigation fraud"in the type of criminal offense of justice obstruction. Then, the paper has brought the legislation improving and perfecting of how to qualify the nature of litigation fraud. To solve the problem of how to qualify the nature of the litigation fraud, and concerned with the object which encroachment by fraud litigation has the feature of duality, the author believes that the qualitative nature of fraud litigation should be decided in legislation. That means to revise the criminal law timely, establish separated offense punishment. Add2 section as second section and third section in Chinese current Criminal Law 305(Crime of falsifying evidence).Second stipulate that"litigation fraud"Describe as specifically,"In civil, administrative litigation, the party makes up the fact, suppresses the truth, forges the evidence, bring a suit to court, occupy others' property or make other illegal interests illegally in intention, illegal resulting number is greater or of a serious nature Sentence to the fixed-term imprisonment or detention under three years, punish gold. The third fund stipulates and describes as specifically as"crime of fraud","make the crime of the previous term, illegal resulting number is very enormous, Declare punishment guilty according to article266 of this law (the crime of fraud)."...