Research On The Crime Constitution Of The Crime Of False Litigation

The Criminal Law Amendment(ix)has added the crime of False Litigation.And the reason why the false litigation behavior enters the crime,mainly is because our country implements registers the system,the law to the false litigation behavior regulation insufficiency,causes the false litigation to take advantage,to swoop in,brings the enormous social harm.Therefore,the false litigation should be committed.This is of great significance in safeguarding the judicial authority of the country and protecting the legal order of the country,and it can also make the individual's lawful rights and interests greatly safeguarded.However,since False Litigation is a new crime,there are still many problems in determining the crime's constitution.Such as:how to determine the relationship between two kinds of objects,whether it should be based on "malicious collusion",how to define the meaning of"fabricated facts",whether the scope of application should be limited,whether the determination of the subject of the crime is missing,whether the subjective purpose should be clear.That these are questions that are worth thinking about and solving.Therefore,the article focuses on the above issues to study the criminal constitution of False Litigation.The article holds that for the determination of object relations,the theory of "selective protection of legal interests" should be adopted.Infringement of the judicial order and damage to the legitimate rights and interests of others should be equal.If one infringement is chosen,it can be regarded as a crime.This is not only consistent with the purpose of criminal law.It is also conducive to the identification of criminal forms and the realization of the distinction between charges;As to whether the establishment of the crime should be based on "malicious collusion",in view of the fact that a party's act of bringing up a civil action by fabricating facts would also hinder the judicial order and infringe upon the lawful rights and interests of others,the establishment of the crime should not be based on "malicious collusion";As to the definition of "fabricated facts",whether it is "fabricating part of the facts","making use of the facts fabricated by others" or "concealing the facts",as long as that fact is sufficient to affect a fair decision,it shall be deemed to be a "fabrication of facts";In the definition of scope of application,although the law of China is expressly applicable to civil litigation,but in view of the judicial practice in the administrative proceedings and arbitration cases,the scope of the crime should be redefined;In the criminal subject cognizance,not only the plaintiff can become the main body of the crime,the defendant,the third person,the legal representative,as well as other outsiders should be concretely analyzed and reasonably identified;In the crime subjective aspect,the perpetrator should be out of direct intention,should not take "illegal possession" as the goal,the understanding of the harm consequence only must realize to the judicial order destruction or to other people's legitimate rights and interests to infringe one aspect to be possible.