On the abolition of "for false litigation

Directive opinion "criminal case applicable legal advice

Provincial Standing Committee of National People's congress:

   We in the defendant Zhang three defense, found some higher people's court, a people's Procuratorate in July 7, 2010 promulgated "guidance on handling the criminal case of false litigation law" (a high method (2010) No. 207), the violation of our legislative spirit, also contrary to the spirit of rule of law in China, should be timely repeal. The reasons are as follows:

   One, for a crime, only the National People's Congress or the Standing Committee of the NPC has the qualification, as a local court, procuratorate is not the subject qualification. In our country, "PRC Criminal Law" was passed by the National People's Congress, the president announced. To make changes and additions to the criminal law, was adopted by the NPC Standing Committee, and the president has issued. An explanation to the charges, was adopted by the NPC Standing Committee to the conference. Now, a court, procuratorate in civil litigation fraud litigation violations identified as a criminal sentenced to criminal punishment ", its essence is a recognized as criminal acts", as the local judicial organs, is not some violations identified as a crime, according to criminal law is not a crime, to extend the analogy.

   Two, for the false litigation in civil litigation cases, at present only according to the "PRC Civil Procedure Law" provisions of article 102nd, fines, detention punishment; constitute a crime, shall be investigated for criminal responsibility. The problem is what constitutes a crime after the crime, the civil procedure law, criminal procedure law is not clear charges, is a legislative blank. In addition, the false litigation case, the local judicial authorities will only find problems and treatment opinions to the Supreme People's court, the judicial committee of the Supreme People's court after discussion with the judicial interpretation, the promulgation and implementation of suitable charge or charges; to explain, can only be submitted to the Standing Committee of National People's Congress in the form of meeting discussed by.

   Three, from this guidance, the first proposed the concept of "false action crime", then, what is "false action crime", which in Chinese criminal law 10 chapter 451 terms, are not out of guilt, such "false action crime", whether to have the criminal illegality, if in accordance with the law should be punished? Look at this guidance, the provisions of article second has some kind of behavior, respectively, in accordance with article 307th of the criminal law, crime of prejudice to help destroy or falsify evidence, the crime; the provisions of article third has some kind of behavior, in accordance with article 280th of the criminal law, sale, sale of fake documents, certificates of state organs, seals, forge, sell the residents identity card crimes; the provisions of article fourth has some kind of behavior, in accordance with article 313rd of the criminal law of the crime of refusing to implement the judgment, order processing; the provisions of article fifth has some kind of behavior, respectively, in accordance with the guidance of second, third; Sixth rules with certain types of behavior, in accordance with article 266th of the criminal law of the crime of fraud; the provisions of article seventh has some kind of behavior, in accordance with article 271st of the criminal law of the crime of duty encroachment; the provisions of article eighth has some kind of behavior, in accordance with article 382nd of the criminal law, the crime of corruption treatment three hundred and eighty-three. The above situation, the guidance will be civil nine offences, provisions in accordance with the 11 charges and handling ! And, for the 11 crimes infringing object, both the hindrance social management order crime, and the crime of property violation, and the violation of national integrity system and ownership of public property. The problem is, to a certain kind of illegal acts in civil litigation as a crime and treatment, this kind of behavior itself, is no constitutional empowerment or authorized by law ", the Act provides for the crime", the scope that is not local judicial organs!

   Four, the citizen's rights of life, liberty, is strictly protected by the Chinese Constitution and the basic law, is not only a constitutional right, is also a kind of legal right. Published guidance, its essence is in our country's legislation, criminal law, criminal procedure law has enacted a "punishment and punishment", "outside the law method". This kind of behavior, will be in direct violation of our citizens the right to life, liberty, and will damage the whole system constitution, the criminal law of china. Secondly, a class of illegal acts in civil litigation as crime, and to guide the internal rules, guiding a three level courts refer directly to the conviction and sentencing of clauses in criminal law, which is enacted a "small criminal law". This kind of behavior, will no doubt on China's criminal law, and the Supreme People's Court judicial interpretation of criminal law, resulting in the contradiction and the conflict, damage China's criminal legal authority and seriousness.

   Five, this guidance after the announcement, a three level of courts in the trial of the criminal case, may apply this guidance, and our country criminal law and criminal procedure law, the two trial judges in criminal cases "fundamental law" set aside. The problem is the judge of criminal cases, not according to the criminal constitutive elements of four case studies, but the false litigation case of civil litigation cases encountered in the guidance of conviction and sentencing, directly on the line. This kind of work, will cause miscarriages of justice, will make many innocent people from criminal prosecution. Moreover, this guidance is not written in the book of "criminal judgment, judgment basis only judge you know", the trial is deviate from the rule of law in our society.

   Please reply.

                                                        Lawyer.

                                                      Two 0 one or two years in August 1st