One, the legal basis

 

The Supreme People's ProcuratorateLaw and Policy Research OfficeOn the falsification of evidence for civil court judgePossessionHow to property law answer behavior
     ( 2002Years10Month24Day)

 

Shandong Provincial People's Procuratorate chamber:

      You in the hospital "by falsifying evidence for a civil court ruling possession of property behavior can constitute the crime of fraud" for instructions(Lu sent word detection[2001]Article11No.)The study received the following reply:

      For the purpose of illegal possession, by falsifying evidence for civil court judge occupies others property acts against the main is the normal activities of the people's court trial by the people's court in accordance with the relevant provisions of the civil procedure law to make, should not be investigated for criminal liability for fraud behavior of human. If the act of forging the evidence, the implementation of the fake companies, enterprises, institutions, people's organizations seal behavior, which constitutes a crime, shall be in accordance with the provisions of article second of criminal law 280th, forged in companies, enterprises, institutions, people's organizations of seals shall be investigated for criminal responsibility; if the act had instigate others to commit perjury behavior, constitute a crime shall be in accordance with the provisions of the first paragraph of article 307th of the criminal law, criminal responsibility shall be investigated in order to testify against the.

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2006Years4Month18DayThe Supreme People's court "about the falsification of evidence through litigation to obtain property and application to conduct legal issues concerning" content is: "the problem in the Policy Research Office of the Supreme People's Procuratorate law2002Years10Month24DayPublished "about by falsifying evidence for civil court judge occupies others property behavior issues of law application to reply" clearly. The answer has solicited the views in the drafting process. You Institute (people's court) may provide reference for the "reply" in the relevant trial after the.

 

 

The Zhejiang Provincial Higher People's court

Some suggestions on preventing and investigating false litigation in civil adjudication

(The Zhejiang Provincial Higher People's Court Judicial Committee2008Years11Month18DayArticle2067Meeting of the)
The ZG method (2008)362No.

      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 behavior of interests.
    Article second The following case, should pay particular attention to the trial:
    (a) the folk lending case;
    (two) cases of divorce party for the defendant's property dispute case;
    (three) has a negative value of enterprises, other organizations, natural and man-made defendant property dispute case;
    (four) restructuring of state-owned, collective enterprises for the defendant's property dispute case;
    (five) the natural person the 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) the facts, grounds for prosecution 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) inform the parties to submit the original evidence;
    (three) require the witness to testify;
    (four) to the interested parties informed of the situation, and notify them to take part in the proceedings;
    (five) according to the authority of investigation and evidence collection;
    (six) invited the 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)"Executive.
    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 the false litigation cases, the party applies for the withdrawal of the suit, the court shall not permit.
    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.
    Article eighteenth The opinions shall be implemented as of the date of publication.

 

Two, research articles

Litigation fraud judicial response

Source: Changzhou City Intermediate People's court

 

Abstract: the litigation fraud is a crime is common in judicial practice, its harmfulness is obviously, but the current in the theory about the nature of litigation fraud behavior has the very great dispute, plus the criminal law and judicial interpretation are not clearly defined, the resulting qualitative for litigation fraud judicial departments have different case, this is not unified approach will certainly affect the judicial authority and credibility, therefore, for fraud in lawsuit is necessary to unify the penalty. Make the following interpretation of the pace of the times we advocate for traditional fraud behavior, that the fraud behavior including triangle fraud case, so that litigation fraud crime of fraud of the conclusion.

    Keywords: litigation fraud  Triangle fraud  The crime of fraud Judicial response

     A, problem

     One case: a friend fromAThe company bought a Santana sedan, due to non payment, the name with their played an IOU, after the car was a friend to sell, the car used for drug.AThe company sent agent B, C, d three went to a debit. When a no property to repay, also understand that a few years ago had contractedBThe company has some cover, handsBThe seal of the company when a blank stationery, the blank stationery faked suit three agents and saidBCompany to theACompany"The repayment plan", and as the evidence to the outskirts of Kaifeng City People's courtBCompany. The court in accordance with the"The repayment plan"SentenceBCompany to theAThe company paid for the car, and repeatedly freezingBCompany account.1998Years11Month, the procuratorial organs on the B, C, d three to Kaifeng City Nanguan District People's court prosecution, on charges of perjury, after the judicial committee for discussion, the court finally sentenced to three people. This case is consistent with the previously mentioned make false litigation evidence is part of fake, counterfeit"The repayment plan"Are written on the coverBThe seal of the company letterhead, although the print is real, but the debtor creditor relationship is imaginary, Nanguan District of Kaifeng City People's court finally on the act of litigation fraud that innocence.

    Case two: "procuratorial daily ("2000Years3Month6Day) published a story titled "manufacturing Jiaan deceptive property--A lawyer in Xinjiang was sentenced to eight years in "report, the basic facts are: Xinjiang four law firms Wang Xiongwei to forge evidence means, trying to make Jiaan, diddle other property42Million yuan. Prosecution by the Urumqi City Tianshan District Procuratorate, Urumqi Tianshan District Court on charges of fraud and sentenced to (attempt)8Years, and shall also be fined5000Element.

     Case three: in order to avoid debt and future and his wife divorce division of property for their own benefit, Taizhou City, Zhejiang Province Bureau of Yuhuan County land tax cadres Zhang Feng2003Years respectively to Lee enterprises such as nine main friends issue IOUs, fictional facts and drafted the civil petition, asked nine friends to the identity of the plaintiff to his court, the court judgement or order for nine copies, involving up to380Million yuan.2007Years11Month16Day,"Pseudo case"The principal Zhang Feng was sentenced to two years and six months in Taizhou City, Zhejiang Province, Yuhuan County people's court to testify against the trial.

     See from the above three litigation fraud case of different decisions, the current judicial practice in China qualitatively for litigation fraud exist significant differences, such differences will affect the judicial authority and credibility, have adverse consequences, thus the construction of a country under the rule of law. Therefore, the qualitative problem of litigation fraud to be solved.

    Two, qualitative analysis of fraud litigation

    (a) concept, the characteristic of litigation fraud

    For the concept of litigation fraud, Chinese and foreign scholars of different views, but generally, fraud by lawsuit, refers to the act in the civil lawsuit as a method, providing false statements, present false evidence, or Colluding witness to present false evidence, makes the court in favor of their own judgment, so as to obtain property or property on the illegitimate interests.[1]

    Including the characteristics of litigation fraud:

   1The object violated, about litigation fraud, the object in criminal law circle the majority view of litigation fraud is a complex object(Or the double object), which is a violation of the ownership of public or private property, but also hinder the normal activity of the judicial organs of the state.[2]But there are also people who think that the object of litigation fraud is the normal order of civil litigation.[3]Some people believe that the object of litigation fraud is a single object, namely the ownership of public or private property.[4]The author thinks, falsifying evidence from the litigation fraud, defrauding the court made the decision behavior, is indeed a normal activity interferes with the judicial organs of the state, and its ultimate aim is to cheat the behavior of public or private property or property interests, so that the infringement is a complex object, and in public or private property as the main object.

   2For fraud in lawsuit, the objective aspect: fact or fiction to conceal the truth, forgery, it is the premise of the act of litigation fraud; litigation fraud in lawsuit, this is form elements necessary; substantive litigation fraud is fraud the court, make mistakes, and mistakes made on the property disposition and the property of interest; legal consequences of litigation fraud is the court made the mistake sanctions on the property, illegal possession the property or property interests, and the victim will suffer loss of property.

   3The subjective aspect, litigation fraud is intentional, and illegal possession of the property or property interest.

    In practice, litigation fraud generally appear in the following forms: one is the acts themselves forge evidence, prove that the use of various means the presence or absence of counterfeit credit debt relationship, such as a note, the repayment agreement, debt guarantee agreement, debt settlement certificate; two is the behavior of the victim's privacy, stress its debts in writing from the card imaginary relationship; three is the behavior of the victim error or mistake, the victim has to fulfill debt instruments for credentials, to the court, asked the victim to once again perform. If the borrower has repaid the loan, but because of forgotten or for lenders to trust, no return or destruction of loan certificate, resulting in arrears have been paid but loan certificate is still retained in the hands of the lender.

    (two) analysis of litigation fraud theory

   1At present, the qualitative on litigation fraud in China's academic circles mainly have the following several kinds of views:

    First, innocence. In the innocence of includes the different views:

     1) Perfect innocence and said. The say that litigation fraud is the act of civil litigation, does not constitute any crime. And to form the characteristics of litigation fraud and the crime of fraud and crime of contract fraud is compared and the crime punishment legal principle gives the reason for the angle of litigation fraud: subjective intention, objective behavior and the object is not in conformity with the constitution of crime of fraud and crime of contract fraud. First, the crime of fraud is a direct intentional crime, and the illegal possession of public or private property for the purpose of litigation fraud, but the person's mental state is not consistent with the subjective elements. Secondly, the victim of the fraud crime and deceived people with the same sex, and the victim"Voluntarily"Delivery of the property, while the litigation fraud (or other) is the court instead of the victim, and the victim is out of fear of legal authority and"Be forced"The delivery of the goods. Finally, the object of fraud crime is the object of property rights, contract fraud crime is the order of the market economy and property ownership, and the object of litigation fraud is a violation of the normal order of civil litigation. Therefore, although the fraud in lawsuit"The harm degree is not inferior to the crime of fraud, but from the crime constitution theory analysis does not constitute a crime of fraud, crime of contractual fraud. In the absence of corresponding provisions of criminal penalties, according to'No crime without law'The principle, only by the innocent treatment".[5]

     2) Innocence and other crimes that. The view from the2002Years10Month24DayResearch on the legal policy of the Supreme People's Procuratorate chamber to the people's Procuratorate of Shandong province "by falsifying evidence about the research laboratory for civil court judge occupies others property behavior issues of law application to reply"(Hereinafter referred to as the "reply")"Reply," pointed out: for the purpose of illegal possession, mainly is the judicial activities of a people's court through normal falsifying evidence for civil court judge occupies others property behavior violated, can be made by the people's court in accordance with the relevant provisions of the civil procedure law to make, should not be investigated for criminal liability for fraud behavior of human. If the act of forging the evidence, the implementation of the fake companies, enterprises, institutions, people's organizations seal behavior, which constitutes a crime, shall be in accordance with the criminal law article280Provided for in the second paragraph, forged in companies, enterprises, institutions, people's organizations of seals shall be investigated for criminal responsibility; if the act had instigate others to commit perjury behavior, constitute a crime shall be in accordance with the criminal law article307The provisions of the first paragraph, shall be investigated for criminal responsibility in the crime of obstruction of evidence.

      Second, guilty said. Hold this view in our scholars mostly, that litigation fraud is guilty, but the specific qualitative and has a different point of view.

     1) fraud. The argument is: form of fraud can be both direct fraud, namely the behavior of people in order to illegal possession of public or private property by fraud, directly to the owner of the property, and also by the state power indirectly implement fraud. On the behavior of people by state organs (mainly the judicial organ), with the aid of the state power to the illegal purpose of fraud in lawsuit property, should be determined as crime of fraud.[6]

     2The crime of blackmail and impose exactions on said). In this view, the act of litigation fraud crime of blackmail and impose exactions on the establishment of. This kind of view of the scholars, firstly, blackmail and impose exactions on crime is by means of threats or coercion, forcing others to deliver the property. But the threat, the threat of various measures. Litigation fraud is enforced by the court forced the delivery of property, but not for the defendant's property. Secondly, the implementation of fraud is the victim(Such as cheap or lack of vigilance)Deception, easier to succeed, great harm to society. But the judge has a review of the facts of the case the authenticity of the responsibility, and professional skills, behavior person make possibility of litigation fraud succeed relatively small. Because, even if a judgment for the plaintiff, the defendant may appeal for revision; second, even if the plaintiff, the defendant can also request the prosecutorial protest, there was commuted to chance. Therefore, the litigation fraud as method for a special way, blackmail and impose exactions on more appropriate.[7]

     3Robbery said). This kind of view of the scholars, robbery refers to the illegal all for the purpose, by violence, coercion or other means, to plunder of public or private property behavior. When the court on the basis of formal realism, on the basis of the act of forging evidence to make the victim of adverse judgment or ruling, at this time, the property was in a dangerous state, i.e. if the victim does not fulfill the judgment or ruling, the court will take enforcement measures (Bao Li), the court become the behavior person acquisition of wealth (Bao Li, coercion or other means) tool, the behavior person constitute indirect perpetrator of robbery cases (because in this state, the court may not constitute the crime of robbery).[8]

     Third, the perfection of criminal law that. This view has two kinds of different ideas:

     1Perfect crime of perjury). The said that, in view of the act of litigation fraud is mainly through forgery way impeding the trial activities normal people's court, which belongs to this behavior is suitable for perjury. But China's current criminal law article305On the crime of perjury provisions of view, the subject of the crime scope is small, only to witness in criminal proceedings, Jian Dingren, record, translation, which requires of perjury crime in the existing criminal law was modified, which should expand the scope of subject of perjury in civil litigation, the parties also includes inside. However, should pay attention to is, civil action has different characteristics and criminal litigation, criminal litigation is usually related to the citizen's freedom and right to life, once the decision error, the loss is irreparable. Therefore harm the false evidence in criminal litigation is more serious, the corresponding, criminal for the false evidence in criminal litigation is more severe. The act of perjury in civil usually endangers is the property rights of citizens, if the decision is wrong, so the loss is relatively easy to make up for,, acts of perjury in a civil action in criminal conditions as well as the applicable penalties on nature should be differentiated with false evidence in criminal litigation. Therefore, the said that in the present criminal law305One paragraph shall be added as Article provisions2Paragraph:"Falsification of evidence in civil proceedings, if the circumstances are serious, the establishment of perjury, office3Years in prison or detention."[9]

   2) of criminal law litigation fraud.

The view in view of the fraud in lawsuit lacks clear grounds for punishment, but not make fraud facts, therefore should set up the litigation fraud in crime.

   2Comments on the above point of view

    1Innocent said point of view, ideas) the act of litigation fraud and general fraud behavior is not the same, from the point of view of the legal principle of crime and punishment, claims of innocence. The author thinks that, this view is very difficult to set up. First of all, from the perspective of social harmfulness angle, litigation fraud behavior through illegal possession of property, in violation of the public and private ownership of property but also destroyed the normal litigation order, or judicial organ normal activity, damage to the fairness and the authority of judicial organs according to the referee, the social harmfulness is self-evident.; secondly, from the perspective of crime elements, there are relationships among elements between the act of litigation fraud and fraud crime. Litigation fraud is in itself contains the common fraud property, when the perpetrator of the unlawful purpose of occupancy, through litigation means, to achieve its objective, subjective certainly hope that the results of such harm occurring, so we cannot rule out the intent of crime. As for the objective, characteristics of ordinary fraud is usually: the perpetrators of fraud, the fraud behavior which caused by the mistakes of others, deceived and dispose of property due to errors(You and the disposition of property must be the same person)Finally, leads to two results, one is because the property disposition caused the cheated person deceived himself or third in property damage(Dispose of the property and property losses are not necessarily the same person)The two act; access to the property or property interests, or to make others access to property or property interest(The behavior and profit are not necessarily the same person). This model can be summarized as: behavior--Error--Punishment--The damaged(Enrichment). In the process of litigation, the court shall be presumed to have the property of both parties"Right of disposition"In the non malicious litigation, the occasion, the judge according to law and the evidence is certainly can dispose of the property rights, otherwise, malicious litigation even if a side litigant in lawsuit, realism, the judge also has the property of the parties in the disposition of rights. Based on the above analysis, the author thinks that, even in the principles of legality, that view is not desirable.

     2) blackmail and impose exactions on crime and robbery crime point of view, from the delivery of the property behavior of non voluntary, but under the court compulsory and deterrent force before the delivery of the property's point of view, these two views are obtained. Especially after the court ruling but the victim has not yet delivered the property and the court based on the decision to take coercive measures of the occasion, people by means of state violence to obtain the desired property or property interests, the enforcement court as their implementation of the tool, so the establishment of indirect principal offender. The author thinks, from the mode of behaviors, both blackmail and impose exactions on crime or crime of robbery, is the illegal behavior of human generated based on the fear of heart and hand over the property; and in the litigation fraud cases, the victim is forced to deliver goods, delivery, but the delivery of property behavior is not made because of their own the fear in other words, is the constitutive elements of the court on the basis of the decision taken coercive measures not blackmail and impose exactions on or the crime of robbery in behavior, therefore, these two views is the same between the two, so that this conclusion is not scientific.

   3The Supreme People's Procuratorate) about the "reply", the author thinks that the "answer" is somewhat reasonable, but the view from the other litigation fraud behavior means consideration, namely criminal evaluation for falsifying evidence and other means, to the neglect of litigation fraud essential considerations, the criminal law article307Article1The provisions of paragraph obstruction of witnessing, is the act of a witness from giving testimony or instigates others to commit perjury case through a variety of means, the article2The provisions of paragraph help destroy, crime of fabricating evidence, and the behavior of people I made false statements is not specified in the among them, this and the litigation fraud in different ways. Moreover, the "answer" is not a judicial interpretation, has no effect generally applicable.

      3, qualitative analysis of litigation fraud

      1Analysis of the crime)

      Current our country about the nature of crime although there are different views, but it still think crime is the essence of social harmfulness. Fraud in lawsuit has a great social harmfulness: first of all, the act of litigation fraud makes the victim's property and property interests suffer great harm or threat. Because of litigation fraud is the act of taking illegal possession of property and property interests, so once succeed, serious violations of the property ownership, even in the case of attempted, serious risk of damage to the victim's property. Secondly, the act of litigation fraud undermining the authority of the judicial activities, causing great damage to the rule of law in our country. Chief justice Gerrard of Australia·Brun think:"The rule of law depends on even can say is equivalent to the credibility of the court.......Destroy the public confidence in the court, also destroyed the foundation of the rule of law."[10]The act of litigation fraud has strong concealment and great deceptive, it is easy to make the court to make the wrong decision, will produce many should not have any law enforcement contradiction, make people lose the trust of the court. Judicial authority is the core of legal authority. The setting up of the judicial authority is very important in the realistic society, because"On the social control, especially for the social control under the condition of modern civilization, probably not what legal authority than to create a more effective and more economic. As a social once establish authority, it means that people's behavior does not need too much social pressure, will be oriented to social cooperation and rational, in a certain sense, the core problem of modern social control is to create a realistic legal authority."[11]

      The social harmfulness of the above analysis we can see that litigation fraud has come the need to be regulated by the criminal law degree, therefore, for fraud in lawsuit should be treated as a crime. So the above that litigation fraud does not constitute any crime view is groundless.

     2The conviction, analysis

     The author thinks, should with punish of crime of fraud litigation fraud.

     Usually for fraud:Behavior person to commit fraud victims victims, make a mistake and dispose of their own property in possession, and finally led to the loss of property. On this occasion, or(Property punishment)Oneness with the victim(Hereinafter referred to as among the two fraud). However, in the crime of fraud, also affected by the presence of a(Property punishment)And the victim is not the same person(Or do not have the same)The phenomenon of. This situation in the criminal law theory, known as the triangle fraud, also called fraud among the three. And the litigation fraud in criminal law theory is regarded as a typical pattern of triangle fraud.[12]Triangle fraud, crime of fraud should be treated as:

      First, the nature of the tripartite fraud with fraud. As an atypical pattern of crime of fraud, infringement of triangle fraud and fraud to law is consistent.[13]In the ordinary fraud case, usually is the victim directly to dispose of their own property in possession(Including their own and all and their possession but not all of the two cases)The reason, dispose of the property is the offender to commit fraud facts or conceal the truth; the disposition of the property is the result of the loss of their property, specific performance will own the property transfer is behavior person or third person all. Similarly, in the triangle fraud, although the victim did not dispose of the property, also did not make a mistake, but by the victim to dispose of property, but by the reasons lie in disposal of the property is still cheating behavior, dispose of the property the same is to lose the property, and the specific performance is the victim's property transfer behavior or the third party. Therefore, the essence of fraud and fraud triangle, is because the criminals out some cheating, and the property of all property ownership transfer took place, its basic characteristics are the same.

      Second. The victims and victims don't have the same. In our traditional theory of criminal law will be in the crime of fraud victims and victims of a strict interpretation of the same person, fraud and other new fraud cannot include such as the crime of fraud on letter of credit, credit card. Along with the social change process intensified, the property relationship between the members of society has become more complex, the emergence of a large number of fraud in the victim and deceived people and property disposition inconsistencies. The meaning of the criminal law should also be with the new interpretation of the development of society, the interpretation of criminal law should be more complete expression of the original intention of legislation, and on this basis, further clarify the meaning of the code provisions and refers to the limit. Bo Tallis in drafting the "French Civil Code" that:"Those not included in the range of reasonable legislation abnormal rare and special case, lawmakers who have no time to handle too varied, too controversial details and even try to foresee also doesn't help or reckless foresight is all dangerous,......We should leave some space to experience to be filled."[14]That is to say,"Enacted law is only temporary the fact summary, it must maintain the openness of the system, may not be the end of the system, and therefore can not be ready for all the questions the standard answer."[15]In fact, according to China's criminal law article266The provisions of article, as long as the behavior of cheating the public and private property, the amount is relatively large, can constitute a crime of fraud, and not the same defined cheated and victim for elements. China's criminal law article193A negotiable instrument, the crime of fraud196Credit card fraud is that legislators must be fraud and not necessarily the best example of the same. From the perspective of overlap of articles of law, common fraud and credit card fraud, financial fraud department subordinate clauses of concurrence, specific performance: the logical constitution law containing elements of another law in extension."For the evaluation of criminal behavior of epitaxial small law, from the logical to the evaluation for another extension of the law."[16]Triangle fraud fraud and credit fraud is typical of bills defraud crime, credit card, has been confirmed by the legislation, the crime of credit card fraud is fraud is contained in the extension, therefore, must logically to the evaluation for ordinary crime of fraud. In the changes of the times and the legislation affirmed, a fraud elements limit interpretation, it will cause massive fraud crime with the same social harmfulness, infringement of the same benefits to escape punishment, will also cause the contradiction in the criminal law system of the law and conflict.

      Third, from the relevant provisions of the criminal law point of view, the criminal law about financial fraud provisions, in fact also contains a triangle fraud case.[17]As the criminal law article196The fraudulent use of credit card act provides for the crime of credit card fraud, the criminal law article194Will infringe upon the draft, promissory note, check the Act provides for the crime of bills defraud, in fact there is the fraud one one or one one victims of the fraud triangle relationship. Before the criminal law does not clearly defined as two crime independent crime, both in theoretical circles and judicial circles, has been the fraudulent behavior as a form of expression, fraud, the fraud, originally triangle fraud;In the criminal law two crime is defined as independent crime, separated from the crime of credit card fraud and bill fraud from the ordinary crime of fraud, the provisions of the two crime law and the provisions of the articles of the crime of fraud is formed between the relation of special law and common law. Generally speaking, in conformity with the provisions of behavior, are in line with the common law. Then, using others' drafts, promissory notes, cheques and credit card fraud others behavior, it is not only in conformity with the law of bills defraud crime, credit card fraud, and in accordance with the constitution of the ordinary crime of fraud.

      Fourth, the tripartite fraud out without any legal basis in the fraud, do not accord with the spirit of the legislation on the crime of fraud of criminal law.[18]From the criminal law article266The provisions of this article, the provisions of the crime of fraud is a concise crime legislation, this legislation mode is conducive to the realization of stability and predictability of the criminal code, adapting to the changes and development of social situation, in order to better cope with the update, the future society could become more complex, more subtle types of fraud. The criminal law article266The provisions:"A large amount of public or private property fraud,, is less than three years imprisonment, criminal detention or control, or be fined"Not clearly defined, or limit the fraud in specific ways, nor will the object of the crime of swindling confined to cheated people own property, but not the disposition of property in crime of fraud was limited to the victim, or not clearly defined property punishment(Are deceptive)The disposition of the property is for himself all the. Therefore, no matter what fraud behavior way, whether common fraud or fraud triangle, the victim and deceived people is the same person, cheated people to dispose of the property is my all, in criminal law266Stipulated"Fraud"Within the scope of the semantic can contain, are in line with the objective elements of crime of fraud."The interpretation of criminal law is full of in the heart of justice, eye constantly from the criminal law and the facts of life......On the premise of not only violates the crime punishment legal principle, and does not distort the facts, and the facts of the case if the corresponding to each other constitute a crime, shall be guilty of the conclusions drawn......Criminal law task will not set loopholes, but instead should reasonably close loopholes",[19]The fraud triangle out of the crime of fraud, is obviously the loophole of criminal law, which is not desirable.

      From the above analysis we can see, the tripartite fraud set up fraud, and litigation fraud in criminal law theory is regarded as a typical pattern of triangle fraud. Therefore, the establishment of the crime of fraud litigation fraud completely.

      Criminal responsibility, litigation fraud three

      1Litigation fraud, the amount that the

      According to our country criminal law theory, the crime of fraud constitutes crime must not only conform to the criminal law stipulated the crime constitution, but also the fraud amount reaches a certain standard to be convicted and punished, the starting point for the2000Element.

      Because of the special nature of litigation fraud, compared with ordinary fraud amount recognized crime more complex. As the author thinks that the litigation fraud includes two kinds of situations, and to conduct the actual property as the litigation fraud crime, so the amount recognized, is also divided into two situations. If the actor the false lawsuit to falsify evidence, should be based on the actual amount of property as the amount of crime of swindling; if the perpetrator is put forward a bogus request in the litigation, requirements are beyond the due amount, should be made to conduct beyond the due amount as the amount of fraud.

      The act of litigation fraud"A large amount of"Standard issue, the author thinks that we should lower than the general crime of fraud, crime of fraud because harm than ordinary fraud litigation go beyond, to combat crime, safeguard judicial authority's point of view, the standard should be lower than the ordinary crime of fraud, the writer think1000Yuan can.

     2Litigation fraud, accomplished, attempted

      The standard of accomplishment of the crime of fraud is a controversial issue, mainly has the possession, out of control, control, control and control and loss etc.. Out of control plays a dominant role in the foreign criminal law theory and judicial practice, and in the theory of criminal law and judicial practice tend to have said, the behavior person acquires property as fraud crime. But our theory of criminal law, crime of fraud is committed, with specific results, as a sign of accomplishment of crime. Specifically, after the perpetrators of fraud, if the victim has suffered no property or the interest of property loss, is fraud attempt; the perpetrators of fraud, deceived so into the wrong understanding of the delivery or transfer of property or property interests, is fraud crime.

      Accomplished and attempted the litigation fraud there are mainly two kinds of views. The first kind of view,"Litigation fraud to provide false evidence to the court in the proceedings, even without resulting in incorrect consequences, the damage and threat to the judicial activities have actual occurrence wrong judgment, the result can only be a heavier punishment plot. If that litigation fraud should constitute a crime, the crime is a crime and non result crime."[20]According to this view, for the act of litigation fraud, as long as the illegal possession of the property for the purpose of filing false action, or makes a false claims in the lawsuit process, which in itself is a tort complete, violated the obstruction of judicial organ normal activity, should according to the accomplished offense. Another view,"Litigation fraud is to encroach upon the property, then the property has not influence the establishment, the accomplished offense and the attempted crime should therefore, litigation fraud and fraud is the same as the result crime rather than act crime."[21]Only after people made the victim of the delivery of goods or execution is completed, in other words, the court in the false litigation behavior of human, and not in the wrong understanding, or even in the wrong understanding but did not make the property punishment decisions, or has made property punishment decisions but not the victim's property transfer to the behavior person or third people, are the litigation fraud attempt.

      The author does not agree to the first view."Behavioral offense, also known as the behavior crime, refers to no crime occurs or not, as long as the implementation of a crime stipulated in criminal law, which constitute accomplished crime"[22]Typical behavioral offence, such as the crime of false accusation and perjury, the crime is not requested legal crime result can constitute a crime. Although litigation fraud and the crime of false accusation and perjury as violation of the court the normal judicial activities, but the litigation fraud after all is a kind of behavior to the illegal possession for the subjective purpose, if will lodge a false litigation or makes a false claim that litigation fraud behavior is identified as to accomplished in litigation it is too much, so the object of litigation fraud violations of the trial court to normal activities, and ignore another important object the object infringed in complex--Characteristics of property rights, may cause the law spirit; while the second views the nature of litigation fraud as a result crime, depends on whether the acquired property as an accomplished standard or not, and neglected the litigation fraud infringes the court normal activities of this object will be accomplished, time goes back, it may cause. All results. So the author thinks that, need a comprehensive look at the act of litigation fraud, fully realize the particularity of litigation fraud, but can not be completely in accordance with the above views judgment accomplished offense and the attempted problems, otherwise it will cause the imbalance.

      The author thinks that, since the act of litigation fraud on the infringement property crime of fraud in the evaluation, we should stick to the traditional view, does not destroy the integrity of this chapter "criminal law", that the behavior people made judgment is not accomplished, but should be the behavior of real property acquired as litigation fraud the crime, in particular, the victim to perform the judgment to deliver the property or for compulsory execution and delivery of property as crime of fraud crime of litigation fraud. But in the behavior of people using the procedure from their debts, should be to achieve effective judgment, namely the first instance judgment or court judgment for the accomplishment of two. Taiwan also has a precedent to hold the same view,"The appellant for people the right to bring a civil lawsuit to the catch rent Zi, successively in the courts of pseudo - Qi, advocated by the field, and has been for redemption, denied that the rent obligations, the continuous exercise of forgery, for the benefit of the lawless cheat map property, both by civil judgement to determine. That is, the fraud crime."[23]

      In addition, the Japanese in judicial practice is also adhere to this view, think"Actor the false fact fraud judgment to make in our favor, and then to the judgment basis made property or the interests of property, fraud behavior is accomplished; although the referee into mistake even made in favor of their own judgments, but for some reason unable to obtain property or property interest, is attempted fraud."[24]

      3The number of litigation fraud, crime

      If the perpetrator by falsifying evidence for civil court judge occupies others property identified as acts of fraud, forgery proof in often violate other laws, it must be recognized and deal with the problem of crime number.

      According to China's criminal law theory, litigation fraud for the behavior, for falsifying evidence and the implementation of the fake companies, enterprises, institutions, people's organizations seal behavior, which belongs to the implicated offense, should be in accordance with the principle of selection of a felony punishablethe, identified as fraud, the Japanese scholars also think Valley"The crime of forgery or forgery and fraud are implicated offense, the same relationship between litigation fraud and perjury."[25]But the Taiwan scholar Lin Shantian put forward another kind of view, think"The forged documents, filing the court ordered the delivery to the act of litigation fraud, although the court without the cheat and found lost, in addition to constitute the exercise of forgery, still cope with this crime (Crime of fraud--The author notes) attempted to commit the criminal liability. Two crime is one act violates several charges should imagine the concurrence, the heavier one."[26]In addition, behavior person in litigation for money fraud directs others perjury case, and may also constitute prejudice to testify and fraud case.

      The author thinks that the case above, are in line with the principle of implicated offense."Implicated offense refers to the implementation of a crime for the purpose, and the method of the crime or the result behavior violates other crimes. For example, in order to fraud and forgery, fraudulent acts constitute the crime of fraud, the method of behavior constitutes the crime of forging documents, is implicated offense."[27]In the two case, there are two crime, implicated relationship and have the means and purpose between the two crimes, and violates different charges, in accordance with the characteristics of implicated offender, constitute implicated offense.

      For the punishment of implicated offense, generally considered to be implemented from a severely broken principle, i.e."Should the absorption principle, according to the number of charges against acts in severely punished crime, legal punishment scope is specified in the crime shall be given a heavier punishment in appropriate."But there are exceptions in criminal law, such as the crime of insurance fraud. China's "criminal law" article198The provisions:"With the fourth (the insured, the insured intentionally causing the loss of property insurance accident, defrauds insurance money), fifth (the insured, the beneficiary intentionally causes the death of the insured, injury or disability, defrauds insurance money) the acts listed, also constitute other crimes shall be punished in accordance with the provisions, the combined punishment for several crimes."But not on litigation fraud specially stipulated in the criminal law, or in accordance with the general theory of processing, namely from serious punishment is appropriate.

 

 

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[3] See Pan Xiaofu, Wang Kexian: "false civil evidence whether constitutes the crime", "carrier" procuratorial daily2002Years10Month10DayArticle3Version.

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[12] See Zhang Mingkai: "the triangle fraud" carrier "," legal research2004No.2Period, the99Page.

[13] See Zhang Mingkai: "the triangle fraud" carrier "," legal research2004No.2Period, the95Page.

[14]See[De]KZweigelt,HQuez: "comparative law", translated by Pan Handian, Guizhou people's Publishing House1992Year edition, No.167-168Page.

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[16] See Chen Xingliang: "the concurrence of articles of law theory", Fudan University press1993Year edition, No.96Page.

[17] Yu Gaizhi, Zhou Yuhua: "and related issues of litigation fraud conducts research on one one structure from the behavior of the crime of fraud of", "French" load research2000No.4Period, the81Page.

[18] Yu Gaizhi, Zhou Yuhua: "and related issues of litigation fraud conducts research on one one structure from the behavior of the crime of fraud of", "French" load research2000No.4Period, the81Page.

[19]See Zhang Mingkai: "the triangle fraud" carrier "," legal research2004No.2Period, the95Page.

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[26] Lin Shantian: "the penal code the crime theory", the author issued2000Year edition, No.417Page.

[27] Chen Xingliang: "the general applicable criminal law (up)", Law Press2001Year edition, No.696Page.