Research On The Difficult Problems Of The Crime Of False Litigation

In the "Criminal Law Amendment(IX)",the crime of false litigation was added.Since then,the crime of false litigation has officially entered the field of criminal law.According to one of the provisions of Article 307 of the Criminal Law,the crime of false litigation refers to the act of bringing a civil action against the fabricated facts,obstructing the judicial order or seriously infringing on the legitimate rights and interests of others.Before increasing the crime of false litigation,in the judicial practice,there are cases in which the court found that some courts were found to be innocent,and in the case of being found to be a crime,the court applied the crime of fraud,and the court applied the nuisance.Judicial class punishment.After the increase of the crime of false litigation,I thought that it could solve the problem of qualitative confusion in judicial practice,but found that because the provisions of the criminal law are too general and lack of relevant refinement regulations,the application of false litigation in judicial practice is still very chaotic.There are many disputes about what kind of behavior should be applied to the crime of false litigation.In order to solve this dilemma,on September 26,2018,the Supreme People's Court and the Supreme People's Procuratorate jointly issued the "Interpretation of Several Issues Concerning the Application of Laws in Handling Criminal Cases of False Lawsuits"(hereinafter collectively referred to as "Interpretation").The promulgation of "Explanation" refines the provisions of the crime of false litigation,plays a veryimportant role in guiding judicial practice,and avoids many phenomena that fail to reach the threshold of entry into crimes but are punished by false litigation.But at the same time,we should also see many issue of the crime of false lawsuit such as the initiation of the criminal procedure,the definition of the content of the objective behavior,the distinction of the crime and the connection between the criminal and the civil still have many imperfections in the Interpretation,.Therefore,the above issues need to be properly analyzed in order to help to better apply this crime in judicial practice.This paper divides the difficult problems in the crime of false litigation into four parts for analysis,in order to systematically study the difficult points of the false litigation crimes at different stages.The first part is about the "initiation" issue in the crime of false litigation.This section is mainly to define who can bring a civil lawsuit,and what kind of civil lawsuit is filed in order to comply with the false lawsuit.Specifically,this chapter is divided into two sections: The first section discusses the defendant's qualifications of the subject of false litigation,and clarifies that the defendant can become the subject of false litigation in the following three situations.The defendant appealed separately,the defendant colluded with the plaintiff and the defendant counterclaimed.The second section analyzes the scope of civil litigation,defines the parts that should be covered by civil litigation and the parts that should be excluded.Civil proceedings include trial procedures and enforcement procedures,and emphasize that the trial process should not only include the first-instance procedure,the second-instance procedure should also be the semantic range of civil litigation,and the civil litigation should exclude the application of the arbitration procedure.The second part is about the objective aspects of the crime of false litigation.It is the question of the nature of the behavior of the perpetrator and the extent to which the behavior has been carried out,which has caused the problem of the crime of false litigation.This chapter is divided into three sections: The first section analyzes the scope of fabricated facts,discusses different definition criteria for fabricating facts,discusses the negotiable points of using civil legal relations as boundaries,and how toavoid civil legal relations.The drawbacks brought about by the boundaries.That is to say,when it is found that the civil law relationship can not be used as a dividing line,it is necessary to properly take into account some false facts.The second section mainly discusses the content of behavioral methods,and discusses that the terms of concealing facts should be characterized as legal imitation.At the same time,it should be grasped that the essence of fabricated facts lies in "falsehood." The third section analyzes the harmful consequences of the false litigation crime.First,the extent to which the perpetrator's false litigation behavior has reached the point of application can be applied to the crime of false litigation.The rationality and legitimacy of the false litigation crime as the result of the crime is discussed.Applicable,defining the rationality of the nuisance of judicial order should be a certain harm.After the conclusion that the false litigation crime was the result of the crime,it was further analyzed that when the hazard result required by the Interpretation appeared,it should be regarded as the ambiguous state of the false litigation crime;when the interpretation is not required As a result,although it is an attempted act of false litigation,it is generally considered that the provisions of the presupposition law on false litigation and the provisions of the criminal law in the criminal law should generally be treated as innocent.The third part is about the connection between criminal and civil about the crime of false litigation.The study is about the question of how to choose the application of the punishment method of the criminals when the civil litigation is carried out to a certain stage.If it is determined to be a false litigation,the criminal involved in the false litigation The question of how the procedure should be initiated;after the criminal procedure for the crime of false litigation is initiated,it involves the handling of the original civil case.This chapter is divided into two sections.The first section deals with the choice of false litigation and civil false litigation.The application of the two should distinguish between malicious collusion and unilateral filing.For singular litigation,it is only possible to apply false litigation.Civil false litigation can only be used to regulate malicious collusion.The second section discusses the recommendations in the criminal and civil relationship that coordinates this crime.First of all,it discusses the rationality of using the transfer of the court as the starting principle from the two levels of jurisprudence and law.Secondly,when it is found that the case needs to be transferred to the criminal case-handling authority,the civil case in the process of trial should be suspended,and the civil case that has already taken effect in the legal document should be initiated and re-examined.Finally,the scope of the behavioral regulation of civil false litigation should be the same as that of false litigation.It is necessary to regulate the false litigation of malicious collusion and to regulate the false litigation of unilaterally filed.The fourth part is about the relationship between false litigation and triangle fraud.This section focuses on the application of the crime of false accusation(invasion of wealth)and fraud.The theory that establishes connection between the two crimes is the triangle fraud.This article first analyzes the different views on the relationship between the two crimes and the triangle fraud.A new conclusion is drawn from the comparative analysis of different viewpoints.This article agrees that triangle fraud is an atypical form of fraud.The triangle fraud theory can also be used to determine the co-opetition relationship between the two crimes.The court can become a deceived party,but the court's disciplinary authority should be limited to the authority that will produce the effect of the property rights change.