The Protective System Of Outer Party Interest In Fictitious Action

At present, fictitious action behavior in which malicious collusion perpetrators uselegal means to cover up the pursuit of illegitimate interests have become intensified.However, our current legal system have not provide effective relief channels for theoutside victims in such cases to safeguard their own legal rights, resulting the refereedocuments become the basis of infringement of rights and interests in fictitious action.Through analyzing the status quo of protective system of outer parties’ interests andlearning from the extraterritorial related doctrine and jurisprudence, this article presentsan idea that combine procedural protection and substantive protection, prior protectionand after protection, civil protection and criminal protection, in order to establish acomprehensive system to protect the outer parties’ legitimate interests.This article mainly includes the following four parts:The first part is an overview of fictitious action. Firstly, this section proposes theconcept of fictitious action that the malicious collusion perpetrators in order to obtainphysical or procedural illegitimate interests, brings a non-confrontational civil action inthe name of parties by fabricating legal relationship or facts of the case etc., or proposesthe application for execution by using fictitious arbitral award or notarized documents,so that the court make the wrong decision or enforcement. Secondly, briefly analyzesthis concept and makes differences between malicious litigation, litigation fraud andfictitious action. Fictitious action includes only infringement of outer parties’ interests,but the latter two also include a large number of this situation that one party in theproceedings directly infringes on the interests of relative party, so malicious litigationrange greater than the fictitious action.The second part is the protection of outer parties’ interests in fictitious action.Firstly, this section analyzes the harmful consequences of fictitious action: violation theprinciple of good faith and the principle of forbidding abuse of rights; undermine judicialorder and waste judicial resources; impact and damage outer parties’ legitimate interests.Secondly, examines the status quo of protective system of outer parties’ interests in ourcountry: in procedural law, the compulsory measures against obstruction of civilproceedings are weak, and outer parties’ prior protective and after protective system arenot perfect; in substantive law, there is no tort compensation mechanism for outer party in civil law, and the existing criminal sanctions of fictitious action are not enough,resulting a gap between the benefits obtained and the illegal cost which the actor shouldpay.The third part demonstrates the procedural protective way of outer parties’ interests.The idea of procedural protection runs through to the end. During the proceedings,establishes the principle of good faith and the real obligation, and constraints the parties’false statement behavior; the judge informs the litigation by use of authority in order togive the outer party who don’t know the litigation more opportunities to participate in theproceedings; improves the participation mechanisms of the litigation, so that the outerparty can claim and defense to prevent fraud. At the end of the proceedings, outer partycan choose the way of retrial or dissent action of execution or the suit of the third partydischarging the judgment or a separate lawsuit or involved in the distribution suit etc. torelief their rights; elaborates the application of various remedies and puts forward somesuggestions. For the question of referee of fictitious action, this article considers that: ifafter hearing the case finds the case lack of appeal of the interests or substantive legalrelationship fictional, the judge should judge rejection of the plaintiff’s claim to betterprotect the outer parties’ interests. For the question of withdrawal processing, this articleconsiders fictitious action behavior is illegal and illegitimate; therefore the withdrawal inthe first or second instance or retrial should be comprehensively and cautiously treated.The fourth part discusses the way of substantive protection of outer parties’ interests.Firstly, in civil law establishes the mechanism of tort compensation for outer party.When fictitious action behavior which malicious collusion perpetrators act meet the tortelements, outer party can sue the perpetrators as co-defendants and claims compensationfor material and spiritual losses. Secondly, in criminal law establishes the crime oflitigation fraud. This section analyzes the view of extortion crime, fraud crime, not fraudcrime, and an independent crime, then supports the view of establishment an independentcrime-litigation fraud, and discusses the elements of the crime of litigation fraud, legalprovisions suggested and treatment of several crimes.