| Before 2015,for the lack of clear legal norms,criminal law could not effectively regulate false litigation,which caused it to explode.The lawless person fabricated the facts and filed a malicious lawsuit,which not only seriously infringed the rights and interests of others,but also wasted the judicial resources of the country and damaged the judicial authority and credibility.The Criminal Law Amendment(9)complies with the development of judicial practice and adds the crime of false litigation.After in-depth investigations and extensive solicitation of opinions,the Interpretation of Several Issues Concerning the Application of Law in Handling Criminal Cases of False Litigation(the "Interpretation")jointly promulgated by the Supreme People's Court and the Supreme People's Procuratorate(the "two highs")in 2018,which explains the important concepts in the statement of guilt,and details the standards applicable to the judicial system.However,whether we can solve the problems in practice requires a lot of empirical cases.After an empirical analysis of the 143 ruling documents issued after the Interpretation,the latest judicial interpretations still have the following problems:First,Article 2 of the Interpretation regards "serious violation of the legitimate rights and interests of others" as a selective condition for the establishment of the crime of false litigation,which does not effectively respond to the theoretical controversy over the establishment of the crime.False litigation cases in judicial practice have no choice whether they interfere with the judicial order of the country.The establishment of false lawsuits only requires the filing of false lawsuits and meets the judicial interpretation of "obstructing the judicial order".The "Interpretation" does not analyze the composition of "serious violations",and the "other people's lawfulness" is too extensive,and it needs to be understood with the crime of false litigation.In fact,"Seriously infringing upon the legal rights and interests of others" does not have the function of categorizing crimes and does not affect the establishment of false lawsuits.We should consider it as a sentencing circumstance.Otherwise,it will not only violate the formal logic of language expression,but also cause confusion in the form of crime completion.There will also be discordant penalties.Second,there are stillsome inconsistencies between the sentencing provisions of the Interpretation and the practical problems in practice.Although the judicial interpretation has considered the various property rights damage as comprehensively as possible,and listed four specific situations,it still cannot solve the problem of difficult to determine the amount of damage.In particular,“damages caused by preservation measures” and“avoidance of debts”,even if the amount of the lawsuit and the amount obtained are high,it is difficult to apply the second statute.Non-infringement-type false lawsuits have fewer sentencing rules,and they also bring the risk that we will upgrade these types of cases to statutory punishment.Whether the cost of responding to the lawsuit is a direct loss caused by false litigation,the opinions of the people's courts are not uniform.We should further improve the applicable penalty standards for the crime of false litigation,and comprehensively make use of judicial interpretations,guiding cases,and reference cases etc.,and gradually form a unified sentencing standard.Third,through empirical research,we also find that there are differences in the treatment of conspiracy.The "illegal possession of other people's property or evasion of legal debts" cannot be understood as the actual result of damage.We should consider the relevant conditions for establishing the crimes.For example,when the amount of the lawsuit is huge,even if the illegal purpose fails,it can still compete with the crime of fraud(attempt)instead of conservatively handling the crime of the false lawsuit. |
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