A Study Of Litigation Fraud

As a means of resolving social disputes, litigation plays a very important role as the ultimate line of defense. Whether and to what extent its function could exert has a special significance in the process of establishing a hamonious society. However, the phenomenon of litigation fraud emerges and spreads gradually in recent years. In these cases, the perpetrator usually sues with false fact and evidence in order to achieve one's unlawful purpose. It is a waste of judicial resourses and a desecration of the judicial authority. What's more, it also violates the legitimate rights of others. Recently, the phenomenon of litigation fraud has attracted much attention for delegates'motions on it in the "two sessions" held in the last year and this year.At present, there has not been able to reach a consensus on this issue in neither the theoretical field nor the judicial practice. And even the response to this issue, which is made by Legal Policy Research Office of the Supreme People's Procuratorate in 2002 could not lead to the end of the dispute. This paper is based on the research of foreign and domestic scholars, combining with the typical cases in the judicial practice. And support the theory that the crime of litigation fraud should be established in the section of Crimes of Impairing Judicial Administration as well as to establish the comprehensive prevention and control. The paper will discuss the following five aspects:The first part focuses on the definitions of litigation fraud which defined by foreign and domestic theorists. By analysing the advantages and disadvantages of the given definitions and some typical cases, the writer summarizes the characteristics and definition of litigation fraud.The second part stresses on the nature of litigation fraud indentified by foreign and domestic scholars, especially the followings opinions held by the scholars in our country, such as "innocence of litigation fraud", "the crime of fraud", "the crime of extortion", as well as how to deal with it in the judicial practice. And then, make a deep analysis one by one so as to laying the fundation of establishing the crime of litigation fraud involved in the section of Crimes of Impairing Judicial Administration.The third part makes a deep analysis in the criminalizing of litigation fraud from both theoretical and practical point of view. In theory, the following factors may be considered:human rights, the value of the order and the implementation of the law department. What's more, the main object of this crime, with the costs and benefits of legislation should be taken into consideration in the process of criminalizing. The conclution is, the crime of litigation fraud should be established in the section of Crimes of Impairing Judicial Administration.The fourth part focuses on the key issues which should be noted in the process of judicial practice. The aspects below will be analysised in detail:the differences between this crime and the related crimes, the quantity of crime, the joint crimes, the suspended situation of the intentional crime and so on.The fifth part is about the establishment of comprehensive prevention and control in dealing with litigation fraud. As a legal proposition, litigation fraud refers to multi-disiplinary especially the Civil Law and the Civil Procedure Law. So it is also necessary to establish the comprehensive prevention and control, along with the related support measures from the perspective of those two subjects so as to reach the purpose of crime prevention promoted in Criminal Law.