The false lawsuit, refers to the original, the defendant colluded, forgery, fraud the court, so the court according to the normal case for trial, or executive. False litigation refers to the two stages of litigation and enforcement.

 

One, the false action:

1 the existence of false action and "complex litigation interest litigation"

False litigation parties, in the interest driven, false litigation case, sued to the court, legal documents for the court to force. The effective legal documents to defraud, will be used for other trial or execution, in order to achieve its illegal interests. The other trial or execution is called "interest litigation". "Legal interest litigation" will determine the false litigation case was confirmed, involving the interests do not disobey in false litigation document content disposition. Illegal purpose false litigation can be realized.

 

2 false action and "interest litigation" has correlation

1) has priority over time

The effective legal documents made false action, will be for "interest litigation". Therefore, the false lawsuit time early or cross at the "interest litigation".

2) two litigation in the party there is cross

False action and "interest litigation", its direction, must have a same party.

3) the same or cover

Two action point must be linked. Interests are interlinked. False litigation subject is "interest litigation" case involving benefit covers. Money, houses, vehicles under the property, assets cover. The third party claims to cover the debt.

 

3 false litigation for payment, a declaratory judgment action

For the interests of the punishment most clear and intuitive is to pay, a declaratory judgment action. Litigation of payment, to determine the presence of debt. The right of action, to clarify the rights of ownership. For the false litigants, get clear, intuitive, written with the effective legal documents right burden or benefit segmentation, like holding in the future "interest litigation" is the most direct, the most powerful weapon.

 

Two, prevention and response measures to combat false litigation

 

1 more cases to establish information sharing platform widely

In order to expand the judges view, must build a case information system, city, province, district level sharing.

 

2 the establishment of case information early warning mechanism

"Pipe, pipe material, pipe right" principle, the establishment of early warning mechanism. To involve multiple court, many of the cases of the same party, the same subject, the same rights cases, should find out the relationship between the case. For beyond the normal case mediation, reconciliation, damage the interests of the third cases, shall timely warning.

 

3 management right, benefit class award

Because the confirmation, payment of civil judgment, mediation, reconciliation and rulings, explicitly given to the rights of the parties or their obligations, is easy to be false litigants use. Therefore, right, benefit class award made by the court, the parties shall, according to the subject, scope, implementation, the transfer of rights situation, make a unified arrangement and storage. On this basis, review case to track, looking for clues, identify false litigation.

 

The Supreme People's Procuratorate civil administrative procuratorial department prosecutor Sun Jiarui accepts reporter when the interview said, "false" false civil lawsuit is litigation subject: one is false, i.e. as a plaintiff or defendant in the citizen, legal person or other organization in fact does not exist or has lost the qualification; two is the case fact false, a party (or parties malicious collusion) fictional facts, "with" the decision of the court violated each other when

People (or case) of the legitimate rights and interests; three is the key of false evidence, the parties through the case of forgery of key evidence, cause errors in judgment.

    At the same time, Sun Jiarui further pointed out that, "the false lawsuit to breed and spread, from subjective aspect of human behavior is out of the interest driven, and the relevant legal system of oversight is the objective important condition."

 

    Although the revised civil procedure law has increased to prevent acts of civil litigation of economic punishment, but for the parties malicious damage behavior of the third people still lack of restraint.

    Legal control on Malicious Litigation Law School of Xiangtan University, Professor Liao Yongan think should emphasize two points: first, to perfect the pretrial procedure, the pretrial evidence exchange, filtering and prevent the fraudulent litigation; secondly, to establish the punishment of malicious litigation complete responsibility system.

    "From our current criminal legislation, the false action is not specific provisions of criminal liability", in Henan Administrative Cadre Institute of politics and law professor Zhang Youliang said, "the provisions of the criminal law crime of obstruction of justice" and no provision about the crime of false litigation, "perjury" only applies to the field of criminal procedure, "the crime of obstruction of evidence" and "helping to destroy, crime of fabricating evidence", nor to the falsification of evidence in civil litigation behavior with penalty.

  

  The crime of fraud shall be prosecuted for criminal responsibility parties?

    According to the Supreme People's Procuratorate "about by falsifying evidence for civil court judge occupies others property behavior issues of law application to reply" provisions, mainly is the normal activities of the people's court trial against this false civil lawsuit behavior, can by the people's court in accordance with the relevant provisions of the Civil Procedure Law to make, not by fraud investigation the perpetrator of criminal responsibility. Zhang Youliang thinks, this regulation has its rationality, many false civil lawsuit behavior is not in accordance with the constitution of the crime of fraud.

    "Absence of the penalty, is an important reason for the breeding and spreading false litigation, therefore, should be drawn about the relevant norms of criminal responsibility shall be investigated for false litigation." Sun Jiarui said.

 

    In 2008 December, the high court of Zhejiang Province issued "several opinions about preventing and investigating false litigation in the civil trial". The high court specifically formulated for preventing and investigating the relevant provisions of the false litigation practice, this is the first in the country. Opinion provisions, establish the false lawsuit prevention mechanism and the handling mechanism; interested outsiders and false litigation case, can put forward to apply to the court for retrial; after examination and confirmation of the false litigation cases, effective judgment or civil mediation has been made, the people's court shall cancel the effective judgment or civil mediation in accordance with legal procedures, and reject.

    This year in May 15th, the Supreme People's court two people court official, the highest law will be determined in accordance with the law to stop those who try to through litigation, consumer debt, debt evasion of law, to resort to deceit, took the opportunity to escape the debt, shall be investigated for legal responsibility and the responsibility of any relevant parties. In addition, some of the enterprise bankruptcy case in the presence of "false bankruptcy debt, really" phenomenon, the people's court shall take effective measures to prevent the name, under the bankruptcy, debt evading vacant phenomenon.

    "It is necessary to strengthen the review of the court mediation agreement, not only to review claims of legitimacy and rationality, also should require the plaintiff to provide factual basis and reason, accordingly, not only with each other on the mediation of admission. The public prosecutor, law should strengthen coordination and contact, to reach a consensus on the false action, to investigate, to make uniform provisions, strengthen the prevention and combat force." His views of Zhejiang Provincial People's Procuratorate prosecution of civil administration director Fu Guoyun put forward.

 

 

    In our current civil procedural law established the procuratorate supervision of court trials, and in the supervision of the false litigation, procuratorate seems to malicious litigation parties.

    This,Professor Qiu Xingmei of China University of Political Science and Law College of civil law and economic law clearly pointed out, "the procuratorate to protest of the civil litigation malicious, in fact and not at the parties' litigation acts, but for the parties to litigation consequences, the referee into instruments that is generated by the court."

    Professor Qiu said, the power of procuratorial supervision relates to whether the court documents identified by the clear facts, evidence, the judge to review if the determination is accurate, and whether the parties the right problem. Therefore, the procuratorial organs filed a protest of the case in accordance with the provisions of the civil procedure law, is the legal basis of the procuratorial supervision behavior.

    Sun Jiarui put forward the further idea, he said: "the proposed in the amendment of civil procedure, the provisions of the objects of supervision of procuratorial organ in civil action -- which includes not only the activities of people's courts, shall also include the litigants litigation activities."

 

The processing method of false litigation against the party encounters:

1, in the trial process, put forward suggestions to the court of the false litigation

2, in the false litigation case is over, apply to a higher court for retrial

3, appeal to the procuratorial organs

 

 

 

Attached: "the Zhejiang Provincial Higher People's Court on preventing and investigating false litigation cases in a civil trial in a number of opinions"

 

 The Zhejiang Provincial Higher People's court trial committee2008Years11Month18Daily article2067Meeting of the)

In order to prevent and punish false lawsuits, promoting litigation honesty, guarantee the normal activities of civil litigation, safeguard judicial authority, in accordance with the provisions of relevant laws and judicial interpretations, combine me the province is actual, make this opinion.

Article 1
False litigation refers to the views of all parties to a civil action, is a 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 interests and behavior.



Article second  The following case, should pay particular attention to the trial:

(a)
The folk lending case;
Two.
A divorce case one party for the defendant's property dispute case;
Three.
Have but insolvent enterprises, other organizations, natural and man-made defendant property dispute case;
Four.
The restructuring of the state-owned, collective enterprises for the defendant's property dispute case;
Five.
The natural man demolition divisions within the household division as subject, inheritance, the sale of housing contract dispute cases;
Six.
Cases involving well-known trademark recognition.

Article third  Any of the following circumstances in the proceedings, the judicial personnel shall carefully review, prevent false litigation:

(a)
In fact, the reason the plaintiff sued the counterintuitive, evidence for the presence of forgery may;
Two.
If the party concerned refuses to appear in court in the proceedings without justified reasons, the entrusted agent of the facts of the case statement is not clear;
Three.
The plaintiff and defendant, cooperate tacit understanding, there is no substantive plea against;
Four.
The mediation agreement easy;
Five.
There are other abnormalities in litigation.

Article fourth
The court should in the filed of the hall or the people's court case window ban false litigation notice, to lead the party integrity action.

Article fifth
There is a false litigation suspected cases, the judges shall report to the president, the president immediately, and the case shall be recorded abnormal conditions attached, to warn each link in the trial.

Article Sixth
The false lawsuit suspected cases, the court may take the following measures in the process of trial:

(a)
To summon the parties to take part in the proceedings;
Two.
Notify the party concerned to submit the original evidence;
Three.
Asking the witness appearing in court;
Four.
To the interested parties informed of the situation, and notify them to take part in the proceedings;
Five.
According to the power of investigation and evidence collection;
Six.
Invite relevant departments, grass-roots organizations in the examination of the mediation agreement;
Seven.
Other measures can be taken in accordance with the law.
Article seventh
The debt dispute case, the court shall strictly examine the debt produces time, place, reason, purpose, payment, contract and the creditor and the debtor's economic condition.

Article eighth
The false lawsuit suspected case, the court shall summon the litigants in court.

The plaintiff refuses to appear in court without justified reasons, the court or midway without permission by the court, may deal with it as a case.

If the defendant refuses to appear in court without justified reasons, in accordance with the "Regulations of PRC Civil Procedure Law" article 100th shall summon.

Article ninth
The false lawsuit suspected cases, court shall notify the parties to submit the original evidence or witnesses to testify in court, a party concerned refuses to submit the original evidence, or the witness refuses to testify in court, the people's court according to law the parties that the lack of evidence.

Article tenth
The false lawsuit suspected cases, civil litigation agent entrusted by the parties, should be strictly in accordance with the "Zhejiang Province Higher People's Court of Zhejiang Provincial Department of justice norms on certain provisions of civil administrative litigation activities agent in accordance with the law (Trial)" execution.

Article eleventh

Interested outsiders and false litigation case, can put forward to apply to the court for retrial.

Article twelfth

After examination and confirmation of the false litigation cases, effective judgment or civil mediation has been made, the people's court shall cancel the effective judgment or civil mediation in accordance with legal procedures, and reject.

Article thirteenth

The false lawsuit suspected cases, party applies for the withdrawal of the suit, the court may approve; after examination and confirmation of false litigation case, party applies for the withdrawal of the suit, the court not to be permitted to.

Article fourteenth

  To participate in the relevant personnel to create false litigation case, in accordance with the "Regulations of the people's Republic of China Civil Procedure Law", according to the seriousness of the circumstances, shall be admonished, fines, detention; constitutes a crime, shall be investigated for criminal responsibility according to law.

     To participate in making a false litigation lawyer, should also put forward the proposal to the relevant judicial administrative organs in accordance with the relevant provisions of law, "" the people's Republic of China shall revoke the lawyer practicing license.

     To participate in the trial manufacture of false lawsuits, the Supreme People's court shall be in accordance with the "people's court judges illegal judicial accountability approach (Trial)" and "the people's court disciplinary measures (Trial)" and "the Zhejiang Provincial Higher People's Court on the case supervision regulations" serious processing.

Article fifteenth

The units and individuals to report false lawsuit, verified, should be rewarded.
     To prevent and punish the judicial personnel to highlight the achievements of the false litigation case, should be commended.

     Article sixteenth  The people's courts at all levels found false lawsuit, should be informed in the range, and the Provincial Higher People's court step by step.
     Article seventeenth   The comments by the Zhejiang Provincial Higher People's court trial committee is responsible for the interpretation of.