The Punishment Of False Arbitration In Criminal Law

As a final remedy and a mature legal system,arbitration plays a major role in alternative dispute resolution(ADR).Because of its simplicity and efficiency,it is highly favored by the parties.However,the advantages of arbitration system are used by some people,which results in the illegal alienation of the legal functions of arbitration system.Compared with the research fever of false litigation,academic circles lack due attention to false arbitration,and relevant theories need to be improved urgently.For the frequent practice chaos of false arbitration,the existing civil law and relevant judicial interpretations focus on the construction and improvement of remedies for damaged rights,while the provisions of the Criminal Law on the crime of false litigation limit the scope of conviction to civil proceedings.The absence of pertinent legal regulations leads to the lack of qualitative and quantitative standards for the legal liability of the actors of false arbitration.Based on the above awareness,this paper demonstrates the necessity and feasibility of using criminal law to punish false arbitration on the basis of improving the relevant theory of false arbitration and combining with its present situation.In addition,under the framework of the current criminal law,the judicial response and the specific path of legislative improvement are also the focus of this paper.The definition of false arbitration and its definition dimension are the theoretical premise of studying the problem of false arbitration.Due to the lack of attention paid to the study of false arbitration in academic circles,an authoritative and unified opinion has not yet been formed.Because of the great similarity in the functions and procedures of arbitration and litigation entities,it is a reasonable way of thinking to explore the basis of punishment for false arbitration by referring to the provisions of the crime of false litigation in criminal law.The legal interests infringed by false arbitration are the legitimate rights and interests of others and arbitration order.Its essence lies in the falsity of disputed facts,in which the falsified facts are not limited to their own fabrication,but also include others' fabrication.The fabrication methods include "non-existence" and "partial tampering".Subjectively,the whole content is the intentionthat knows the falsity of the disputed facts and uses them as the basis for applying for arbitration,without the restriction of "illegal purpose" and "malicious collusion".Referring to the provisions of the crime of false litigation and considering the criteria for defining concepts in logic,false arbitration should be defined as "the act of applying for arbitration with fabricated facts,which impairs the order of arbitration or infringes on the legitimate rights and interests of others".In addition,in practice,false arbitration is often confused with malicious arbitration and arbitration fraud(fraud).Malicious arbitration has the largest scope,while the broad sense of arbitration fraud(fraud)and false litigation have similar connotations,which have different expressions due to different qualities.The present situation of false arbitration is the objective basis for studying the problem of false arbitration.In practice,false arbitration frequently occurs in the fields of debit and credit disputes,house confirmation disputes,property disputes between enterprises,and divorce and property division disputes.Through the typological analysis,we can find that the practical characteristics of false arbitration are embodied in four characteristics: the relevance between the parties,the progressive subjective content,the lack of confrontation in the arbitration process,and the low cost of violating the law.Whether and what kind of punishment should be imposed on false arbitration depends on the nature of the right to arbitration.The mainstream view regards arbitration power as a kind of "civil jurisdiction",In fact,the construction of any systems are based on the overall background of the level of local social development.The nature of arbitration power should be judged comprehensively and dynamically in terms of its historical development,nature of power,source of power,human factors and legal effect.Civilization of arbitration is an international development trend,but in the context of the expansion of judicial power in China,we can at least explore the meaning of the basis of punishment and attribute the arbitration power to the broad scope of judicial power.Punishing false arbitration by criminal law will not have a negative impact on the existing arbitration system.It is not only the need to protect legal interests,but also the requirement to improve the actual effect of the crime of falselitigation.It conforms to the concept of criminal legislation in recent years in China and is conducive to saving judicial resources.Before the crime of false arbitration is sentenced,from the perspective of literal interpretation,the crime of obstructing testimony,helping to destroy and forging evidence is not limited to civil litigation,but can be used as a legal basis for investigating the criminal responsibility of the perpetrator.In addition,according to the practice of false arbitration,the crime of fraud,refusal to execute judgments,conviction of forging company,enterprise,institution and people's organization seals can also be used.As the way of conviction of the act.However,the above-mentioned charges often fail to make a complete evaluation of the false arbitration,and there are some disputes in the application of the above-mentioned charges in practice.False arbitration acts impair arbitration order and seriously infringe on the legitimate property rights and interests of others,which have serious social harmfulness.Under the background of false litigation being sentenced,false arbitration acts should also be included in the scope of the criminal law.It is suggested that the crime of false arbitration be added to the section of the crime of obstructing justice in the form of amendments to the criminal law.According to the social harmfulness of false arbitration,in order to maintain the coordination of the penalty system,we should adopt the same penalty allocation as the crime of false litigation.