Studies On The Act Of Litigation Fraud In The View Of Criminal Law

With the advancement of law progress in our country, more and more peoplechoose to depend on legal action to solve disputes. But the phenomenon calledlitigation fraud appears and attracts people’s attention. Because the crime of litigationfraud disorders the court normal trial activity and causes great loss to the victim aswell. However, the criminal theory and judicial practice can’t reach one agreement onhow to handle litigation which will result in many problems like social injusticejudicative credit decline and so on. Therefore, we must put the research aboutlitigation fraud on the agenda.Firstly, define the litigation fraud correctly. Many scholars give differentconcepts from different perspectives. Some emphasize the loss of property. Somestress on the destruction to the justice order. The word “litigation fraud” indeedcontains subjectivity and leads to confusion with normal fraud. Most people ignorethat the actor is deceiving the judge and disorder the suit actually. In the judicialpractices, the typical litigation fraud will contain four characters normally. Actorshave illegal lawsuit propose. The action happens in the civil procedure. Actors submitfalse evidences to judge. The judge make erroneous ruling according the falseevidences. In conclusion, litigation fraud means that actors with illegal purpose ofobtaining property interests or non-property interests submit false evidences to thecourt which causes wrong decisions to disorder the court normal trial activity in thecivil or administrative proceedings.Secondly, discuss how to determine the nature of litigation fraud. There aretheory of innocence, theory of extortion and theory of normal fraud. The theory ofinnocence is based on the basic principle of criminal law “maintaining the statutoryprinciple of crime and penalty” and the supreme people’s procurator ate reply. But wemust admit law blank. Only put litigation fraud in criminal reconciliation can restrainthe speculative psychology, set up the conception” just society”, and coordinatedifferent divisional laws and stipulations of criminal law itself.The people who support the theory of extortion think that the rule gained throng deceiving the court will pose a threat to the victim. The most important character ofcrime of extortion is the behavior which will make the victim feels too scared to resist.But the victim of litigation fraud gives property according to the law, other than thephysiologic fear. The litigation fraud differs from crime of extortion.The view of normal fraud is based on the theory of the tripartite fraud, which do harmwith the property of victims. The method leads to a third person other than the victiminto erroneous understanding. And the court has the power to handle the property. Thelitigation fraud corresponds with the pattern of tripartite fraud. But when wedetermine the nature, we must take the differences between the both intoconsideration and judge the differences will lead to different natures or not. Theirbehavior pattern is different. The litigation fraud must happen in the civil oradministrative proceedings. Without the court, this crime can’t be carried out. What’smore, not all the crimes through method of deceiving are the crimes of fraud. Thecourt is neutral judicial judge and can’t be treated as the third person of the tripartitefraud. The object of crime of both is different too. The direct object of litigation fraudis the normal order of justice and the loss property is incidental result. If we view thelitigation fraud as normal fraud, it will bring more problems.At last, some scholars put forward to establishing crime of fraudulent activitiesin litigation which the author agrees with. The author also further illuminates thenecessity from three aspects: the reality, loopholes in the criminal law and typologythinking. The related foreign laws prove that it’s feasible. So the author puts forwardpersonal legislative ideas about litigation fraud and makes a special expatiation forthe crime constructive elements. The objects of the crime are complex objects:normal judicial order and others’ legitimate rights and interests. The objective aspectshows that the actor submits false evidences to the judge to make erroneous ruling inthe civil or administrative proceedings and destroy the lawsuit activity badly. Thedistinction between the crime of litigation fraud and general perjury behavior lie inthe degree of the serious circumstances. The subjective element of litigation fraud isintention and can only be direct intention. The special aim of crime is not essential.The subjects of this crime are special only including prosecutors and defendants inthe lawsuit. The units also can be the subject of crime of litigation fraud when the decision is made collectively by the whole unit or the head of the unit. The crime oflitigation fraud will be included in prejudice testify fraud crimes. At the meantime, inconsideration of the social harmfulness and coordination of current penal code, thestatutory sentence of litigation fraud will be higher than that of prejudice testify fraudcrimes and lower than that of crime of the normal fraud, Generally, actors behave onthe purpose of property interests, so it’s necessary to increase the punishmentproperty to fight this crime.