The Research On The Judicial Application Of The Crime Of False Litigation

The crime of false litigation which is gestated for a long time,is published as a new accusation in the "Amendment of criminal law(9)" in August 29,2015,and is set to implement on November 1 of the same year.One of them has been attracting more attention,that is the crime of false litigation as an additional new charge.The new charge has made the legislative regulation of false litigation clear,and in practice,the qualitative confusion of false litigation cases is solved effectively.However,through judicial practice of more than two years,due to the recent publication of the law,lack of judicial interpretations and authoritative ruling,reference cases,evading the risk of judicial trials and other reasons,many problems arise when the crime of false litigation is applied to specific relative cases.Therefore,on the basis of making the constitutive elements of the crime of false litigation clear,focusing on the two major problems in the application of the judicature,that is the problem of imbalances between crime and punishment in the false litigation cases of invading wealth and almost vacancy in the application of promotion of legal punishment.Among them,the discussion of each problem is on the basis of analysis of the current situation,generalization of problems and consequences.Then,I explore the causes of the problems and put forward suggestions on the legislation and judicature,make the crime of false litigation better use in the judicial application.This article is divided into three main parts except for the introduction and conclusion:The first part analyzes the constitutive elements of the crime of false litigation.The part has four aspects.In terms of the subject of the crime,natural person or unit is not limited to the status of plaintiff in a civil lawsuit,but just required to have independent claim in civil litigation.In terms of subjective aspect,the request is direct intent,besides the purposes of criminals are pluralistic,not to be restricted to illegal encroachment.In terms of the object of the crime,according to the setting convention of the criminal law system and the possibility scale of the object being infringed,the judicial order is the first choice.In terms of the object aspect,It is emphasized that the fabrication in the crime should include the concealment of the truth,and false arbitration should not be belong to the false litigation.The second part explore the problem of almost vacancy in the application of promotion of legal punishment.Starting from the analysis of the current judicial situation,through analysis and comparison of some related cases,the author dare to question the application of legal punishment,and it is concluded that there may be a conclusion that legal punishment of the basic file may be uniformly applied in the judicial practice.The causes of the problem are likely to lie in the following two points:Firstly,the lack of standard of identification of "serious plot";Secondly,the judges evade the risk of judicial trials.Finally,based on the above reasons,the suggestion of refining the standard of "serious plot" and guaranteeing the discretion of the judge are put forward.The third part explore the problem of imbalances between crime and punishment in false litigation cases of invading wealth.Starting equally from the analysis of the current judicial situation,it is likely that there is a tendency to be conservative in measurement of penalty,that is to be only identified as the crime of false litigation.In addition,the measurement of penalty likely cause the consequence of imbalances between crime and punishment and a sharp rise of the number of the cases.Then the following reasons:Firstly,in theory,there is a qualitative argument;Secondly,there is no clear statement in legislation.Therefore,I put forward some suggestions to improve the problem.Firstly,in terms of convictions,on the basis of supporting the crime of fraud,bypass the theoretical difficulty of identifying the difference of concurrence;Secondly,in terms of measurement of penalty,at the same time of strictly sentencing of the fraud(attempted),keep the conservative evaluation of false litigation.