The Cognizance Of Behavior About Fraud Litigation

Fraud litigation is the behavior that two parties intend to infringe others’ legal benefit by making up false facts with malicious collusion. The newly revised Civil Procedure Law of the People’s Republic of China 2012 112 nd article :The people’s court to dismiss such litigation request of the parties, and impose a fine or detain, whereas the case constitute a crime, criminal responsibilities shall be affixed. But, it cannot deny that article 112 which against fraud lawsuit is too general, there are still many problems in applying it. What is important is how to define the behavior of fraud litigation. This thesis will combine the analysis the law and the living examples expect to explain the status quo. The writer will discuss how to define the situation that two parties malicious collusive and intend to infringe others’ legal benefit by compromise and point out the present situation, this thesis will also discuss it from four aspects: what factors make it to be a fraud litigation, the way to confirm it, how to assign the responsibilities of provide the proofs and prove the rationality of the standers.The first part begins with the analysis of the law. The law about fraud litigation is so general that how to identify it become difficult. Follow that, the writer sorting some cases and select the typical ones to know what are the problems: the parts of the behavior of fraud litigation are deficient, the assignment of the responsibilities is not rationale, the standers are not always the same and other problems.The second part discusses that what elements should be included in fraud litigation and which lawsuit mode should be used. The writer thinks the elements should include the action, subjective malice, result of damages and causal connections according to the ways how to confirm the fraud litigation. In the aspect of consciousness, we should limit it the intentionally range, not the culpable negligence; in the aspect of behavior, malicious collusion and litigation should be included; The result of the damage not only include the material but also the physical and cause the damage to the judicial justice; From the causal relationship, we should value the importance of the call to account, can not simply consider that the causal relationship limit the range of responsibility and neglect the importance. As the lawsuit mode, we should combine the two litigation mode – adversary system and legal system to make the court to fully display its functions.The third part discusses the assignment of the responsibility during the determination of fraud litigation. China’s proof burden takes “who advocate, who consumer” principle to assign the responsibility, it gives the opportunity to let them malicious to get their benefits. So the court should do it positively when they find the possibility of fraud litigation. At the same time, the writer also believe in the allocation of burden of proof, reversal of the onus of proof ways, when the judge find the possibility of fraud litigation, on the one hand they should verify the fraud litigation, on the other hand the judge can ask the party to provide the evidence to prove that it is not the fraud litigation. On addition, The people’s procuratorate should play the power of giving advice.The fourth part discusses the standards for the identification of fraud litigation. The article 108 of Civil Procedural Law stipulate the standard of the high degree of probability and article 109 stipulate the standard of beyond reasonable doubt. During the law practice, different courts use different standards and there is a controversy of the high stander of beyond reasonable doubt. The writer consider that the confirm of fraud litigation should use the stander of beyond reasonable doubt. Apart from this, it also combine the free evaluation of evidence of the judge, use the trial experience and the professionalism of the judge to notice the anomalies during the trail, in this way, we can find the fraud litigation instead of punish the party of malicious after the third part whose legal rights are being infringed exercise its cancellation right. It is more meaningful to prevent them from happening than the sanctions afterwards.