On The Identification Of The Objective Aspects Of The Crime Of False Lawsuit

The Amendment IX to the Criminal Law of the People's Republic of China has been adopted at the 16th session of the Standing Committee of the twelfth National People's Congress of the People's Republic of China on November 1st,2015.The crime of false lawsuit,as a part of the Article 307,has been added to the Section 2“Crime of Impairing Judicial Activities”of the Chapter VI“Crime of Disrupting the Order of Social Administrations”.So far,the extensive discussion on“whether the crime of false lawsuit should be criminalized”has been settled.However,the discussion of the crime of false lawsuit will never stop.Due to the excessive abstractness of the law and the lack of specific identification standards,it is rather difficult for the judiciary to understand the conviction standard and sentencing range.As a result,it leaded to the embarrassing situation of"different judgments of similar cases",and caused the authority and credibility of the judiciary to be questioned.On September 26~thh of 2018,the“Judicial Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of False Lawsuits”(hereinafter referred as"Judicial Interpretation")was officially promulgated.And it clearly defines the definition of criminal behavior in the crime of false lawsuit.Although the"Judicial Interpretation"has been responded to a lot of problems about the objective aspects of the crime of the false lawsuit,I still believes that the"Judicial Interpretation"is just a start of the legalization of the crime of the false lawsuit.There are still lots of problems of the identification of the objective aspects of the crime of false lawsuit needed to be discussed and solved by legislation.Therefore,I would subdivide the objective aspects of the crime of the false lawsuit into three levels,in order to find the reasonable and effective ways for the application of this crime.First of all,in the"feigned facts"level,I would analyze the two aspects of"feigned"and"facts"one by one.Feigned means making up facts that does not exist.The method of feigning behavior includes forging evidence,making up false statements,hiding truth and so on.In addition,the feigning behavior of the crime of the false lawsuit has two kinds of manifestations,including“making up facts”and“hiding truth”.The people who can feign includes the people who brings the lawsuit and the others who are not related to the lawsuit.The facts include objective facts and legal facts.Actually,the process of bringing a civil lawsuit is the process of transforming objective facts into legal facts.Making up facts should include making up the whole facts and making up partial facts.Although the"Judicial Interpretation"denies that making up partial facts can be judged as this crime,I still think it's necessary to criminalize the behavior of making up partial facts.Then,I cites four typical kinds of behaviors based on the types of the facts and the purpose of the lawsuits.Secondly,in the"bring a civil lawsuit"level,I would analyze the two aspects of"bring"and"civil lawsuit"one by one.The people who can bring the lawsuit includes the plaintiffs of the lawsuit,the defendants who bring the counterclaim and third parties who have independent claims.From the perspective of protecting judicial resources and preventing the expansion of the scope of criminal law,I believes that the time point of"bringing"should be the time of filing.On the perspective of"civil lawsuit",we should clearly define that criminal lawsuit,administrative lawsuit,arbitration and notarization are not within the scope of"civil lawsuit".On the other hand,the appeal,retrial,enforcement procedures,non-litigation proceedings and incidental civil actions shall all be deemed to be"civil lawsuit".Thirdly,in the"impairing judicial order or seriously damaging the legitimate rights and interests of others"level,I would analyze the two aspects of"impairing judicial order"and"seriously damaging the legitimate rights and interests of others"one by one.The"judicial order"specifically refers to the trial activities of the court.The former kinds of false lawsuit is focused on the result.And in the latter kinds of false lawsuit,the legitimate rights include property rights and non-property rights.And I think the identification standards can be enriched in terms of the amount of property and the degree of the damaging of personal rights.