Research On Several Issues Of False Litigation

The additional crime of false litigation is mainly to protect the judicial order and the legitimate rights and interests of others.Before the addition of the crime,there were many disputes about how to sue fraud,litigation fraud,and false litigation,which brought difficulties to judicial practice.Since the addition of the crime in the Criminal Law Amendment(IX),there has been a clear basis for criminal law in the act of spoofing the judicial order and achieving illegal purposes.How to correctly understand and apply the provisions of the law on the crime is the key to current theoretical and judicial practice.Based on the latest judicial interpretation,other scholars' studies and judicial practice,the thesis is divided into four parts to explore the related issues of false litigation crime.The first chapter is about the legal protection of the crime of false litigation.It mainly discusses what the protection benefits of the crime are.The theoretical circle has different understandings of the protection of the crime.The author agrees with the selective legal theory that the protection of legal interests includes the judicial order and the legitimate rights and interests of others.The two are choices,and they are not required to have both.When the perpetrator's false litigation behavior hinders the judicial order,that is,if the behavior violates the protectionlaw of the false litigation crime,it does not require the behavior of the perpetrator to infringe on the legitimate rights and interests of others.However,it is also necessary to consider the issue of false litigation,civil sanctions and criminal sanctions,and avoid the pre-trialization of criminal law,so the civil aviation field can regulate the behavior.The second chapter,consisting of three sections,is about the behaviors in the criminal constitution of the crime of false litigation.First,“fascinating facts + filing civil suits” is an objective behavior in false litigation,and facts should not be limited to self-fabrication,nor should it come out of thin air.Meanwhile,concealing the truth to initiate civil proceedings can consitutue this crime as well.Second,the chapter analyzes to which scope the civil procedure of the false litigation is applicable.It involves,particularly,the determination of the nature of the pre-appeal property preservation act based on fabricated facts.Pre-litigation property preservation is an emergency preservation measure in civil proceedings.Although it occurs before the parties file a civil lawsuit,it does not necessarily initiate a civil lawsuit after the preservation.It does not seem to be in conformity with the crime of false litigation is included in the part.However,the pre-litigation preservation procedure itself should be a kind of civil procedure,and the party's act of prescribing the property preservation with the fabricated facts should be a false litigation.Third,the necessity of malicious collusion in the crime of false litigation.In the field of civil law and judicial practice,malicious collusion is considered to be an essential element of false litigation,and in the judicial interpretation of the newly introduced false litigation crime,malicious collusion is also a necessary condition for certain situations.But malicious collusion is not the necessary behavior that constitutes a false lawsuit.The author believes that the common form of false litigation is malicious collusion,but it can not be a necessary component of thecrime of false litigation.Many acts of false litigation can be implemented only by unilateral acts.The third chapter mainly discusses the criteria for the crime of false litigation and how to judge the seriousness of the circumsatances.Although the judicial interpretation of the crime has been stipulated in the way listed,the basic and aggravated offenders are regulated.However,some regulations are still not clear enough,which will bring inconvenience to specific judicial operations,due to restrictions on legislative technology and other reasons.In one of the cases,it is impossible to use the "trial" as the sole criterion for the crime,since there is a "one size fits all" suspicion.When determining the "serious circumstances",there should be some relatively clear reference situations for the definition of specific "seriousness".The fourth chapter mainly discusses the overlap between the crime of false litigation and the crime of fraud with the example of "routing loan"."Range loan" is a criminal phenomenon.Generally,it is loaned by seemingly legitimate measures.It attempts to obtain a court judgment through false litigation,and then invades other people's property.This behavior not only hinders the judicial order but also seriously infringes on the legitimate rights and interests of others.False litigation in the crime of arbitrage,which is consistent with the crime of false litigation.In addition,because "routing loans" are draped in legal cloaks,and civil litigations with untrue evidence have certain falsehoods,they may also constitute fraud(triangular fraud).This kind of overlapping situation is worthy of our study.