Determination And Punishment Of The Crime Of False Attempt

Since the criminal law stipulates the crime of false lawsuit,the phenomenon of false lawsuit in the field of civil and commercial affairs has been restrained to a certain extent,which not only effectively punishes the criminals of false lawsuit,but also maintains the sacred and inviolable judicial authority,and plays a certain role in the integrity atmosphere of the whole market economy.Criminal law on the crime of false action is relatively simple,for the convenience of the judicial personnel specific operating the charges,the supreme people's court,the supreme people's procuratorate jointly issued a detailed judicial interpretation is the supreme people's court,the supreme people's procuratorate about deal with false criminal cases to explain some issues of applicable law,the explanation of the theoretical circle is widely concerned and disputed the sin crime of false action defined shall be clear and provides operational standard criterions for the conviction.Based on the criminal legislation and judicial interpretation of the crime of false action rules as the basis,both at home and abroad on the basis of existing theory,research and analysis the problems of the attempted crime of false litigation form,mainly around the attempted crime of false action and false litigation charges on writing,punished paper overall structure is divided into four most:The first part introduces the connotation of attempted crime of false lawsuit as a whole.At the beginning,the author analyzed and demonstrated whether the crime of false lawsuit has the form of attempted crime by raising questions,and affirmed that the crime has the form of attempted crime,which is also the major premise of this paper.Secondly,it analyzes and interprets the connotation and extension of the concept of false lawsuit crime,in order to grasp the boundary between crime and non-crime,this crime and that crime.Finally,combined with scholars on what is the specific expression of the attempted crime of false lawsuit,that the reason for this dispute lies in the false litigation crime and the standard of failure of the unified understanding,starting from this to start the following writing.The second part is the identification of the crime of false lawsuit.This chapter firstly elaborates and analyzes the four representative theories of identifying the crime of false lawsuit--"fabricating facts","bringing a lawsuit","putting on record" and "discussing the case by case".Then,combining with the civil law system and China's theory on the identification of "start",the author believes that "infringement of legal interests" should be taken as the identification standard of "start".Combining with the crime of false lawsuit,the author thinks that the starting of this crime should be discussed separately: for the first false facts and then filed a lawsuit,the "setting up a case" should be regarded as the identification standard of the "starting" of the crime of false lawsuit;As for the fabrication of facts after the lawsuit is filed,"the doer specifically puts forward the fabrication of facts" should be taken as the identification standard of the crime of false lawsuit.The third part mainly expounds the identification of the crime of false lawsuit.If the standard of identification is not clear,it will lead to the difference of the standard of identification of attempted.Before accurately identifying the crime of false lawsuit as "not succeeding",the standard of "succeeding" should be determined first.With the crime of false action standard,there are mainly four representative theories: "the court said that","trial","said to","said a certain judicial resources cost",through analyze the views of the doctrine of the above four kinds of appraisal,the author agree with "a certain judicial resources cost" as false litigation charges standard of "successful".Then from the perspective of the object of the crime of false litigation infringement,false litigation crime to complete the form of the two perspectives to analyze the crime of false litigation "failed" specific identification criteria.The fourth part is about the penalty of the crime of false lawsuit.First of all,the behavior of attempted crime in false lawsuit should be punished.The reason for punishment is that the criminal in false lawsuit has the behavior of seeking illegal interests from the subjective level,which objectively consumes the limited judicial resources and damages the legal rights and interests of the victim.Secondly,it is not necessary to give criminal punishment to all the behaviors of attempted crime of false lawsuit,but only to subject the behavior that seriously threatens or damages the judicial order and the legal rights and interests of others to punishment,and to connect the behaviors that do harm to legal interests or do less harm to legal interests through other laws.Finally,in the specific punishment of attempted false lawsuit crime,the principle of combining punishment of crime with modesty of criminal law should be followed,and the criminal policy of combining leniency with severity should be implemented.