Source: October 25, 2013 Jiangsu court

Authors: Li Ting, Zhang Rui Author unit: Sihong County People's court

 

[case]

 

Tan Mou, Zhang nephew son-in-law. Because a tan to outsider when borrowing $400000 outstanding, when in 2011 October 14 to the court. To apply for a court to be sealed on the grounds, Tan Mou all of certain property. Tan Mou to transfer part of the 1629 from the seized property, were colluding with Zhang, Zhang from the issued a 800000 yuan false ious (IOU dated April 2, 2011). In November 3, 2011, Zhang to the court proceedings, request a loan repayment 800000 yuan tan. On the same day, the court presided over the mediation, the parties agreed repayment agreement voluntarily. On the same day, the court on the basis of the parties reach an agreement, make civil mediation book. After the expiry of the repayment period, Tan Mou fails to perform the obligation of repayment, Zhang is apply to the court for execution (in place is not executed). April 3, 2013, Tan Mou visits, to the case of filing a case for retrial.

 

Hear.

 

Through investigation, Tan Mou in order to achieve the purpose of the transfer of property, viciously colluding with Zhang, in the no borrowing relationship with Zhang's case, deliberately to Zhang false IOUs, virtual legal relationship, attempt to damage the legitimate interests of other creditors. Zhang knowingly Tan Mou issued false IOUs, but according to the courts. Tan Mou and Zhang practices, hinder the normal order of the judicial court, the court of the judicial credibility, are composed of false litigation. The so-called credit relations between the two sides of the formation of no factual and legal basis for, and belongs to the invalid agreement, not protected by law. Accordingly, the relevant provisions of the court on the basis of "contract law" and "Civil Procedure Law" the judgment made by the court to revoke the civil mediation book, dismissed the Zhang on the impending litigation request.

 

[comments]

 

With the popularization of legal publicity, the legal level, people's rights consciousness gradually enhanced, solve the economic disputes, litigation way to safeguard their legitimate rights and interests of the people has become the main means of adults, but the individual parties in order to achieve their purpose of illegal, together with others, fabricating false legal relationship, filed the lawsuit to the court, in order to obtain illegitimate interests through litigation, such as the case. The harmfulness of false action, and as the increase in recent years, folk lending case, characteristics and folk lending case, make private lending has become the heavy disaster area of false action "".

 

Definition and its harm, false action

 

(a)Definition

 

False litigation, is refers to the civil litigation parties malicious collusion, take up legal relationship, fabricated the facts of the case method to bring a civil action, or by the notary documents false arbitration award, for execution, the court made a wrong judgment or execution, to obtain illegal behavior of interests.

 

Two.Harmfulness

 

The harmfulness of false litigation, generally has the following several points: 1, false litigation directly violates the procedure relative party or the interested party's legitimate rights and interests, is not conducive to the stability of economic order. 2, the court of the false litigation adjudication, wasted a lot of judicial resources, so that the grass-roots court "case much less" exacerbate the situation, the judicial personnel case pressure. 3, false action is a direct challenge to the authority of the state judicial behavior, reach its purpose is to cause great harm to the public credibility of the judiciary, disturb the normal order of the judicial.

 

Analysis of the causes of false litigation multiple of two, folk lending case

 

The reason of false action of multiple folk lending case, the author believes that the following aspects:

 

(a) characteristics of folk lending case at the present stage is prone to false litigation

 

1, folk lending relationship occurs mostly between friends, acquaintances, loan amount increases, high interest rates, borrowing implies high frequencies. In the false litigation, litigation is usually both sides is a natural person, relatives, friends, classmates are generally the special relationship between the parties, the parties are legal persons or other organizations, has investment, ownership or its legal representative, responsible person with dear of interpersonal relations and other relationships such as convenient operation. The two parties when the relationship of coincidence.

 

2, borrowing nonstandard forms. Now the main form of borrowing still is, a receipt form, form, IOUs forms, better is the form of loan contract, is not standardized, once a dispute, the parties often take IOU, IOU, receipt to litigation. While the false litigation parties is not normative use of borrowing, virtual lending relationship, issued false IOUs to court investigation and litigation.

 

3, are now either the folk lending case is difficult to be served or cannot find a person, or the respondent confirmed credit. By borrowing form of false litigation parties in order not to drain away sometimes not to appear in person but entrusted with the professional knowledge of legal agent to appear in court proceedings, the defendant in court or initiative, a waiver of defense, lawsuit right, to tell the facts and evidence would also not have any objection. Confused by the courts and judges, the parties will have a "false" confrontation, authenticity but never deny the basic fact and evidence, often choose the repayment period, interest, default defense gold and other non essential details. The parties cooperate tacit understanding, investigate and deal with difficult.

 

(two) folk lending case makes false litigation parties an opportunity

 

The folk lending case litigation by the court in accordance with the principle of "giving priority to mediation, the combination of transfer negotiations", to mediate civil disputes through mediation, consensus final solution usually depends on both parties, so the civil mediation is easy to be false litigation through. The false action to achieve its purpose of litigation parties as soon as possible, to avoid the judge to review the details of the case, often choose mediation, litigation mediation by the legal form to cover up their illegal purpose. The parties cooperate tacit understanding, investigate and deal with difficult, the two sides through the "hand in hand" reach the purpose of mediation. But the folk lending case is increasing year by year, the grass-roots court "case much less prominent contradictions", the judges in order to be concluded in time, and assessment under pressure, willing to mediation, the judges tend to relax vigilance is suspected of false action.

 

(three) the interest driven, false litigation costs low, the expected return of large

 

False litigation folk lending case, the general is to hope that through action by the court to confirm the property rights or change, then achieve their debt evasion, the transfer of property, to avoid legal obligations to. Another kind of circumstance is intentionally making false IOUs, and a time to write in the local folk lending boom, in order to get the court to confirm the validity of the IOU slip by, and then divides a cup of a thick soup of borrowing big case ridden. Drive, borrowing the economic interests of the non standardization is the basic reason for borrowing in the case of multiple false litigation. In Sihong County, the amount of borrowing is very large, but generally speaking false litigation in the present legal environment in the litigation cost is low, according to the "Civil Procedure Law" provisions of article 112nd, article one hundred and thirteen terms, the false action, the people's court shall refuse the claim, and according to the seriousness of the circumstances, impose a fine detention; constitute a crime shall be investigated for criminal responsibility according to law.In the actual trial, when the jury found the suspected false action, general will do its work to persuade them to withdraw, if not then rejected his claim, rarely with fines, detention, the more difficult it shall be investigated for criminal responsibility, and criminal law from the view, there is no direct provision for the false action, no specific charges. Once the false litigation success will give false litigation greatly expected return.

 

Practical analysis of three, borrowing false litigation regulation

 

With the folk lending case of false action of multiple, the timely prevention and sanctions is a consensus, but how to prevent and punish now mostly stay in the experience, not yet formed a complete system. Prevention and sanctions on the folk lending case false action, I believe that regulation from the following aspects:

 

(a) the subjective understanding, always tighten the prevention of false action in this string, especially in the case filing, trial and execution of the folk lending case should be paid special attention to.

 

(two) to strengthen the review of folk lending case, the evidence is incomplete, greater scrutiny, careful filing, registration by way of conversation transcripts were initially screened matters needing attention.

 

(three) the people's court folk lending case, according to the law comprehensively, objectively examine all the evidence submitted by the parties concerned, a comprehensive review of the correlation between the evidence and the facts of the case, the evidence of linkage to judge. A blemish on the form of "IOU" or "receipt", it should be combined with other evidence to identify the existence of lending relationship; the cash borrowing, according to proof of delivery, payment ability, trading habits, loan amount, when the relationship between the parties and the statements of the parties of the transaction details by factors such as the comprehensive judgment.

 

(four) in a court hearing if encountered the following circumstances, shall strictly examine the reasons, borrowing in time, location, source of payment, delivery, money and credit economy: first, credit irrational, or ious evidence in forgery may. Second, the other more or major creditor debtor relationship of the debtor, or the defendant in a certain period of time repeatedly involved in folk loan disputes litigation; third, in the presence of close relatives and other special relationship between the parties, or other creditors and borrowers spouse outsider's objection, or one of the parties, the two sides did not to take part in the proceedings, agent for borrowing facts unclear and contradictory; there is no substantive plea against the fourth party, to participate in the litigation, or creditors easily give up rights, urged a mediation and the debtor.

 

(five) the false lawsuit alleged folk lending case, at the court to apply the ordinary procedure, the parties should be summoned as a witness, witness, or according to the application, notify the interested parties to participate in the Litigation Authority; found false action is suspected, to timely according to the authority or to the relevant departments to investigate and collect evidence, find out the truth. A false litigation suspected that trial, the judicial personnel shall report to the president, Dean, and the case shall be recorded abnormal conditions attached, to warn each link in the trial. The certificate is false litigation, rejected the claim, and the obstruction of civil procedure act on the basis of "Civil Procedure Law" 112nd article shall be fined, detained; for to obtain goods, to escape the debt for the purpose of implementing false litigation, which constitutes a crime, shall be investigated for criminal responsibility according to law. Although from the criminal law point of view, there is no direct provisions for the false action, but in the false lawsuit may involve prejudice to testify the crime, to help destroy or falsify evidence, and other crimes, to specific analysis. To already made the judgment documents, interested outsiders and false litigation case, can bring a retrial or at the request of the court shall be in accordance with the procedure for trial supervision to the court of retrial.

 

(six) increase the propaganda, the typical folk lending false litigation case report, guiding the client credit procedure. The units and individuals to report false lawsuit, verified, may reward. The lawyer law worker, involved in the production of borrowing false lawsuit, it shall put forward a proposal to the relevant judicial administrative organs. At the same time, increase the research of folk lending case, strengthen the loan procedure standardization trial. In addition, the author thinks that also can create "credit blacklist", once which judicial departments found false litigation had involved blacklist, the credit archives not only to share in the judicial system, but also to the public. When these credit tainted staff again to similar cases involved, the relevant departments should attach great importance to.

 

Specific to the case, Zhang and Tan Mou issued false IOUs, virtual legal relationship to the court, has constituted the false litigation, mediation and out through mediation, harm, is a typical false ious issued false litigation cases. The case gave us sanctions against, borrowing false lawsuit to a great inspiration, in the trial of the case, our hospital invited some deputies in the retrial of the case trial supervision tribunal, the case after the collegiate bench trial, withdrew civil mediation book the trial, the plaintiff Zhang rejected the defendant in the original instance Tan a request. Upon approval of the president of the court of the two people are located in judicial custody every five days, the false action goal was reached in the end. The case against sanctions, false action, guide the integrity action played a promotion, warning. (Li Ting, Zhang Rui)