Analysis of Litigation Fraud Legal Regulation.doc

analysis of litigation fraud legal regulation abstract current litigation fraud in judicial practice intensified, not only infringes upon the legitimate rights and interests of victims, but also seriously undermine the national judicial order, harmful to society has become increasingly prominent. of litigation fraud identified, the theoretical circles there are still considerable differences, judicial practice, due to the lack of specific legislation system will inevitably have a large number of different co-contracting phenomenon. cause those results to the most fundamental reason is that china has not yet legislation of specialized litigation fraud, to solve this problem, in the final analysis is to perfect to pass legislation. from perfect our angle of litigation fraud legislation to hold accountable those criminal liability discusses, it is recommended that to additional litigation fraud in the criminal law, litigation fraud in the context of criminal law evaluation. paper keywords litigation fraud legislation to regulate the system of criminal responsibility with the accelerating process of chinas rule of law, the legal system and constantly improve citizens legal and human rights awareness intensify, more and more people tend to choose the proceedings of the state to solve social life and other subjects of dispute, the courts in adjudicating cases under unprecedented pressure. at the same time, there are some people abuse their own hands given by the state the right to appeal against the legitimate rights and interests of other civil subject, even illegal purposes, using a variety of illegal means to seek illegal interests, litigation fraud is one of them and intensified sign. the litigation fraud growing number of cases, the proper exercise of judicial power has brought great difficulties to the judicial practice, which is the legislators never materials. litigation definition of fraud not be uniform definition of academic fraud litigation, scholars definition of this behavior has a different opinion. some scholars believe that litigation fraud division acts for the purpose of illegal possession of property, to bring a civil action as a means of false evidence in civil proceedings to deceive the court, municipal court make a wrong decision to cheat the large amount of public or private property and behavior. some scholars believe that litigation fraud acts are illegal access to another persons property or property interests of fictitious facts or conceal the truth or falsification of evidence to bring a civil action to the court and convince a court judgment in their favor, so as to obtain property or interests. the professor zhang mingkai that litigation fraud (also known as litigation fraud) the concept of broad and narrow sense, the broad litigation fraud to deceive the court, so that the other delivery of the property or property interests of all acts; narrow litigation fraud refers to the act of the victim as a defendant to the court false proceedings in the court of an error of judgment, and then get a judgment from the victims delivery of the property or by the court by enforcing the transfer of the property of the victim to the perpetrator or a third person, and so on. these definitions fraud litigation, cf analysis, we can easily find that different definitions of litigation fraud common basic characteristics: first, the perpetrator made use of fictitious facts, conceal the truth or falsification of evidence and other illegal means; second, the behavior to the court proceedings, and the use of false evidence to the court a wrong understanding of, which is not conducive to the victims of error made by the referee; third, the subjective aspects of litigation fraud is directly intentional. behavior based on unlawful purpose, knowing that their actions would harm the legitimate rights and interests of victims, and knowing that the court may be based on an incorrect understanding of victim error referee, positive as hoped that the results occurred. fourth, the object of the litigation against fraud is not only the victims property ownership and property rights, including the national judicial order, cause great difficulties to the normal judicial work of the court. this paper argues that the litigation fraud perpetrator illegal purpose, a specific victim as the defendant, through fictitious facts, conceal the truth or falsification of evidence to the court false litigation, the court made based on misconceptions judgment is not conducive to the victims property ownership or property rights behavior. second, the litigation fraud qualitative overview in fact, through deception court litigation fraud had been available, the use of legal proceedings on the surface to obtain illegal benefits, the legislators had surprisingly no time, so the majority of countries in the world for this behavior no special provisions, but in theory pass that or trial practice identified. chinas criminal law theoretically not clear characterization of such wrongful act, the resulting judicial practice which the different co sentence is more serious. at present, chinas academic fraud litigation qualitative following three mainstream view: (a) guilty idea is quite scholars believe that litigation fraud in the use of fictional facts and conceal the truth or falsification of evidence to the courts, in fact, has violated chinas criminal law the relevant provisions of the charges, such as may be guilty of false accusation the crime, the crime of falsification of evidence, fraud, extortion. this representative view is the crime of fraud and extortion. the professor zhang mingkai think that the litigation fraud is the typical triangular fraud, because the behavior of the judges recognize error, the judge not only the right to make is not conducive to the judgment of the victims, but also has a statutory right to dispose of the victims property of being able to decide to enforce. the professor wang zuofu that, malicious litigation usurpation more in line with the characteristics of the crime of extortion, the perpetrator intended to use the courts through the deceptive litigation are misconceptions judgment against the victim to illegal possession of property of others behavior is the intention of the court decision forced forces the defendant to delivery of the property, rather than to cheat each others property, so this behavior of the actors as extortion is more appropriate. (b) the point of view of innocence scholars who hold this view believe that litigation fraud has its own unique attributes, the acts of violation of the object and objective are different from, whether in the form or nature of the crime of fraud and extortion. on the object, the violation of the object of the litigation fraud as described above, including the victims property ownership and the national judicial order; objective aspects, the perpetrator is of fraudulent lawsuits brought to court as necessary formal requirements, which is one of the extortion kind of special way. contrast specification crime of fraud and extortion in the name of penal crimes against property, are not fully cover the relevant aspects of litigation fraud, it would be inappropriate to fraud and extortion qualitative. since the criminal law can not be found to cover the terms of the constituent elements of the litigation fraud litigation fraud under the criminal law principle of legality, should be considered not constitute a crime, currently handled by the innocent. for harmful to society to consider such behavior, this double against the wrongful act of the victims and the national judicial system should be included in the scope of criminal regulation, through additional litigation fraud in the criminal law which the fundamental solution. (c) committed various offenses to acts which mainly under the premise of not be convicted and punished for fraud, illegal means to use according to the behavior of people in the process of implementation of the fraudulent litigation shall be investigated for responsibility accountability this view. behavior by fake companies and enterprises. institutions, peoples organizations, seal behavior in court proceedings, to fake companies and enterprises. institutions, peoples organizations, seal convicted and sentenced in; behavior implemented during the fraud of the action, directing others to commit perjury to the court, to testify to prejudice held criminally responsible. if the perpetrators from litigation fraud committed in the relevant provisions of chinas criminal law is not only against the peoples court trial activities, that will be dealt with in accordance with the relevant provisions of the civil procedure. in fact, to some extent, each of the above three qualitative litigation fraud unreasonable, and questioned by the parties. in the stage of chinas legislation has yet to special regulation litigation fraud case, in view of these doctrines how to evaluate judicial practice which should the doctrine in which the subject has not yet reached a unified mainstream view, so natural in practice appear in many different co-contracting phenomenon. reposted elsewhere in the research papers download third, related offenses distinguish this paper argues that stage, china has not yet specifically litigation fraud legislation of the emerging litigation fraud and serious threat to property safety or property interests of the members of the society, it is no exaggeration to assume that, perhaps days will run into this situation, the legitimate rights and interests have been filed fraudulent conduct of litigation unlawful infringement. accordance with the view of innocence that, according to the principle of legality can not be convicted perpetrator, the perpetrator can not be held criminally responsible, that violated the legitimate rights and interests of how to be a relief? rights that can not be relief on a rubber stamp and a piece of paper, this is clearly unfair. on the other hand, in accordance with the guilty for fraud or extortion conviction and sentencing of the perpetrator, it seems that too reluctantly, because at this stage of criminal law can not find a match counts below specific to several related offenses litigation fraud distinguish between: (a) litigation fraud and to defraud the distinction between academic many scholars have characterized as the litigation fraud to defraud the theoretical basis of the triangle fraud, because no express provision of the criminal law triangle fraud, but from the criminal law on the provisions of the financial fraud after analysis is not difficult to find triangle fraud case to defraud triangle fraud. triangle fraud, as the name implies, the subject relates to the tripartite relationship, including behavior the dupe (third) and victims. crime patterns built in this one is the perpetrator fictional facts or conceal the truth means to dupe victims of property in accordance with the law, the right to dispose of a wrong understanding of victims based on an incorrect understanding of, dispose of the property of the victims, the perpetrator eventually obtaining property the conduct resulted in the victim has suffered property damage. admittedly, litigation fraud and fraud triangle fraud have much in common, but both exist more differences. analysis from the elements of the crime, the crime of fraud and litigation fraud: first, the object, the main object of the fraud crime is public or private property ownership, and we already stated litigation fraud violation of the object is a complex object, including public and private ownership of property or the property of others rights, including the the national judiciaries trial order, litigation fraud more profound aspect we need to take it seriously, not litigation fraud purely as a violation of property crime; second, the main aspects of the crime of fraud as a general principal to the unit can not become the subject of the crime of fraud, but the subject of litigation fraud can include units this point, the crime of fraud is clearly not cover; identified in crime, according to the basic theory of the crime of fraud in china, the implementation of fraud without to obtain property, the plot does not meet the serious not convicted, only reached the circumstances are serious given before attempting to commit the crime of fraud. if identified according to defraud the conviction and sentencing of litigation fraud, is bound to cause serious damage to the national judicial jurisdiction because the perpetrator has openly challenge the judicial authority of the state, to take risks to achieve their illegal to obtain benefits through deception court made it legal forms referee the purpose of this is the most intolerable. therefore, even if the litigation fraud eventually obtaining property or property interests, should not be construed as whether determination of accomplishments only as a punishment fits the crime. (b) the distinction of litigation fraud and extortion some scholars believe that litigation fraud in line with extortion constitute a crime, finds more appropriate for the crime of extortion. however, in the same manner as between these two, although the overlap, still more differences. means of threat or blackmail, extortion requires that the perpetrator even if the threat of blackmail forms, but not enough to use them litigation fraud means of a miscarriage of justice of the court to enforce the behavior of the victims property, and set into stiff seems rather far-fetched, there is no convincing. litigation fraud occasions, although the victim is forced delivery of the property, but the delivery of property not because of their fears and make the delivery of coercive measures are not taken by the court pursuant to the judgment of the behavior of the constituent elements of extortion . therefore, identified as extortion is not appropriate. (c) litigation fraud and obstruction of witnessing obstruction of witnessing means to prevent a witness from giving testimony or instigates others to commit perjury behavior, violence, threats, bribery and other methods. conceptually, it seems to falsify evidence and litigation fraud false litigation coincidence, but careful analysis can still be distinguished. obstruction of witnessing, related to witness and testify program, indicating the progress of legal proceedings, and can only occur in the lawsuit; litigation fraud behavior wishes to file a false litigation, fictional facts or conceal the truth alone is not sufficient to lead to court wrong understanding, which is often supported by the evidence in the case by the judge review was initiated sham litigation, so the vast majority of falsifying evidence is filed false lawsuits. obviously, while it is in the embodiment of the time of the forged evidence on the type. the litigation fraud acts are illegal property of others behavior of falsifying evidence, such as false companies, enterprises, institutions, peoples organizations, seal, just filed false lawsuits implementation auxiliary means, belong to the criminal law in theory implicated, it is not the conviction and sentencing of the perpetrator auxiliary means. fourth, litigation fraud legal regulation at present, chinas legislation has not yet specialized regulatory litigation fraud, judicial practice no special legal requirements in view of the emergence of a large number of different co-contracting phenomenon, it is clear that this is a direct result of no legal basis. but serious litigation fraud japanese tv drama is not unlawful infringement, for the protection of property and property interests of all members of society, and more to maintain the normal operation of the national judicial order, the abuse of the right to appeal must be regulated. judicial practice, whether by fraud, extortion or prejudice of justice and other related charges to regulate the behavior of people, but in the end the expediency of the law is not a cure. to solve the problem, to curb the occurrence of such acts, or should litigation fraud independent. positive uncertainty of litigation fraud in the criminal law to additional litigation defraud provide little addition to the behavior of the circumstances are obviously minor and the harm is not considered a crime outside are included within the scope of criminal law evaluation, confirmed to constitute the crime, be investigated for criminal liability of the behavior of specific criminal law provisions can learn from taiwan, china and foreign countries such as italy and other countries. first of all, in view of chinas criminal code has just gone through the eighth amendment, a short perio