Study On Litigation Fraud

As a deceptive behavior, Litigation fraud has what nature, not only caused lasting controversy in the academic field, but also perplexes domestic judicial organ always. Especially, the problem how to charge and punish litigation fraud has been long-standing. In current judicial practice, litigation fraud behaviors show multiple characteristics and its development trend becomes fiercer. Therefore, how to make this new type of fraud behavior interpreted scientifically, rationally and systematically; understood fully in theory; give it an accurate positioning by an appropriate charge and appropriate criminal responsibility in criminal law are very important.The terminology of Litigation fraud is not created at random by the academia. As other general legal charges, it has a complex structure. By comparison, Litigation fraud includes some characteristics of the traditional crimes of fraud, but it differs from them in essence. In some ways, Litigation fraud is a compound type of behaviors with fraud, because it gets implemented through civil litigation means, and violates many laws. Based on the difficulty in the process dealing with specific facts of crimes that appropriately define Litigation fraud’s scope in order to show criminal scalability, to divide it into two kinds, broad sense and narrow sense, is very convenient for us understand. Generally, the concept of Litigation fraud includes all behavior which cheating the court through litigation that the offender takes in odor to embezzle the other party’s property or other interests, and get the other party suffered economic loss. Narrowly, it only refers to invading wealth in a lawsuit, i.e. the perpetrator filed false evidence, which caused false lawsuit, so that the court made great wrong judgment without objective basis, which can force the victim to deliver the property or illegally transfer ownership or right of possession to others by court’s compulsory execution. Its ways of behavior mainly show the following types:out of thin air, seizing on some pretext or other to distort, stirring among the dry bones, abusing litigation rights, public-private partnership model. We can say that litigation fraud behavior has its own structure and objective performance. To clear its concept and extension is the premise for us to discuss and research it.There are great differences exist in litigious organs when they deal with litigious swindling acts. Their attitudes and actual operation on how to charge and give litigious swindling acts sanctions are not uniform. The Policy Research Department of Supreme People’s Procurator ate has made relevant approval, but the approval does not have judicial interpretation, legal attribute, and drew much criticism. In practice, the judicial organs deal with the litigation fraud great diffidently, some processed it according to general fraud crimes, some according to the crimes of disrupting justice, some judicial custody, and some did not file it into criminal cases.The reasons make judicial organs’viewpoints and attitudes on Litigation fraud be not exactly same, basically exist in having not gained consensus on several important issues theoretically. Firstly, Litigation fraud with a great social harm, not only damages the public and private property rights and interests, but also severely disturbs and destroys the national litigation activities. Secondly, there exist situations that cheated persons are not just the victims of property interests, and Litigation fraud belongs to this atypical form. Thirdly, the court is also one of the victims and also can serve as one person who can dispose others’property rights.Solving issues about Litigation fraud ultimately has to rely on legal regulations, but there are no corresponding provisions at the moment. In order to better handle litigation fraud, eliminate disagreement and debate on Litigation fraud, safeguard the national legal system’s seriousness and authority, unify our socialist country’s laws, we should be conscious of that it is very conducive to carry out the lawsuit activities and highlight socialistic fair and just that set a single criminal provision about litigious swindling acts. As Bill fraud, Insurance fraud, Credit card fraud and other special forms of fraud, Litigation fraud differs from traditional infringement of property.It’s appropriate to regulate litigious swindling acts in the Crime of obstruct justice’s section, and give it criminal sanctions with the charge of Litigation fraud. To meet the need of Criminal prevention, the mitigation of punishment, saving judicial resources which can be used to punish criminal and carrying out litigation activities, we should distinguish its constitution from the Fraud crime.We must pay attention to the distinctions between criminal law and civil law, when we define Litigation fraud in civil judicial procedure. Malicious prosecution is diffident from false prosecution. On the whole, social harmfulness caused by actions of malicious prosecution has not yet reached the scope of criminal law evaluation. It is enough to regulate malicious prosecution with civil sanctions, but is not for false prosecution. We must pay attention to the distinctions between criminal law and civil law, when we define Litigation fraud in civil judicial procedure. Malicious prosecution is diffident from false prosecution. On the whole, social harmfulness caused by actions of malicious prosecution has not yet reached the scope of criminal law evaluation. It is enough to regulate malicious prosecution with civil sanctions, but is not for false prosecution. Two aspects,"the standard of relatively large amount" and "the seriousness of the case", demand us to pay attention to circumstances in conviction and sentencing. In addition, we should do necessary textual research about the rationality of setting the sign of completed forms.