On 26 september 2018, the supreme people's court and the supreme people's procuratorate jointly published the interpretation of certain questions of the law applicable to criminal cases of false litigation (hereinafter referred to as " the interpretation " ), which has been in force since 1 october 2018. The interpretation covers a number of sectoral laws, such as the penal code, the civil code, the code of criminal procedure and the code of civil procedure, as well as the application of the relevant laws. In order to facilitate an in-depth understanding and understanding of the main elements of the interpretation, the following are the salient points of the interpretation:
The way in which the offence of false prosecution was committed and its finding
Accurately understanding and grasping the expression of the offence of “initiation of civil proceedings on the basis of false facts” in article 307 of the penal code is one of the key issues of the interpretation. According to article 1 of the interpretation, in practice, attention needs to be paid to the following aspects:
The first is that the offence of false suit is limited to “unpretentious” actions. The interpretation makes it clear that the provision of the penal code “initiating civil action on the basis of a fabricated fact” refers to the fabrication of a civil legal relationship, the fiction of a civil dispute and the institution of civil action before a people's court. Among them, “false” refers to the incompetent, fabricated and fictional; “facts” refers to the facts upon which the perpetrator initiated a civil action, on which the people's court opened a case and which constitute the subject of a civil case. The essence of “false facts” is to fabricate a civil legal relationship and to fabricate a civil dispute, both of which should be present at the same time. In the case of “partially altered” false actions, i. E. Civil legal relations and civil disputes, the perpetrator merely exaggerates or conceals certain facts, such as the amount of the particular subject matter of the proceedings, the manner of performance, etc., and does not fall within the scope of the offence of false litigation under the penal code。
Second, “civil action based on fabricated facts” includes specific “hidden” acts. The interpretation makes it clear that the concealment of the fact that the debt has been paid in full, and the filing of a civil action in the people's court for the performance of the debt by another person, is based on the notion of “civil action on the basis of a fabricated fact”. The main consideration is, first, that the concealment of debts in judicial practice that have been fully liquidated and the continued prosecution of the former debtor for the performance of the debt are negative fabrications of facts, the social harm of which is not materially different from the active falsification of facts, and the need to punish them by penal means. Secondly, the criminal law provides that there is a competition between the offence of false prosecution and the offence of fraud, which consists of both the falsification of facts and the concealment of the truth, and it is therefore reasonable to include in the offence of false prosecution a specific act of “hidden truth” in order to “initiate civil action on the basis of false facts”。
Thirdly, the offences of false prosecution include the categories of “unilateral fraud” and “complicity between parties”. The former refers to a false suit by one party against the legitimate interests of the other party, and to a substantial conflict of interest between the parties. The latter means that the parties engage in maliciously false litigation, infringe upon the legitimate interests of third parties outside the case, harm the state, the public interest, or avoid the performance of legal obligations and the relevant regulatory obligations, and there is no substantial adversarial relationship between the parties. It is clear from the interpretation that false proceedings include acts of unilateral or malicious collusion with others in the falsification of civil legal relationships such as identity, contracts, torts, inheritance, etc. It should be noted that articles 112 and 113 of the code of civil procedure regulate “complicity” in a false suit, while the penal code regulates both “unilateral fraud” and “complicity” in a false suit, which is broader than the rules of the code of civil procedure。
Fourthly, the offence of false litigation applies to civil enforcement proceedings. The interpretation makes it clear that an application to the people's court for enforcement of an arbitral award based on a fabricated fact, an instrument of a notarized claim, or an application for participation in the execution of a property distribution in the course of civil enforcement by means of a fabricated fact, is “a civil action initiated by a fabricated fact”. The main consideration is that civil proceedings under the civil procedure code include trial proceedings and enforcement proceedings. In civil enforcement proceedings, the people's court is required to review arbitral awards, notarized claims instruments and enforcement challenges, participation in the execution of property distribution applications, etc. Of the parties, not to exclude enforcement proceedings from civil proceedings, and to make such actions explicit as false litigation, to help regulate civil enforcement procedures and to resolve problems of enforcement in practice。
Criminalization of the offence of false prosecution
Under the penal code, the offence of false prosecution is defined as “aggravating the order of justice or seriously violating the lawful rights and interests of others” and the offence of “gravity” is defined as an aggravating circumstance. Articles 2 and 3 of the interpretation, in defining the above-mentioned criteria for sentencing to a conviction, are based on three main principles:
The first is to pay attention to punishing crime and protecting the right to sue. The view was expressed that the offence of false litigation was a criminal act, and that the perpetrator was guilty of a breach of the judicial order by filing a false complaint with the people's court and opening a case. We believe that since the reform of the people's court's system of receiving cases in 2015 and the introduction of a registration system, the process of filing cases has been simplified and has facilitated mass litigation, and if the people's courts are used as a criterion for entering cases into criminal proceedings without distinction, it may unduly widen the scope of criminal action, creating ideological concerns for the people to bring civil proceedings and not contributing to the legal protection of the right to sue. Thus, the interpretation takes as an incriminating criterion important procedural nodes such as the people's court's decision to take protective measures, to sit in court or to make a decision。
Secondly, care is taken to ensure that criminal penalties are reasonably compatible with judicial penalties. According to article 112 of the code of civil procedure, the people's court shall reject the request for a false action and impose a fine and detention in accordance with the gravity of the case; if it constitutes an offence, it shall be held criminally liable in accordance with the law. Thus, in defining the criteria for incrimination, the interpretation avoids the criminalization of acts under the provisions of the code of civil procedure, leaving room for judicial punishment and creating a hierarchy between criminal punishment and judicial punishment that is reasonable。
Thirdly, attention should be paid to the inherent unity between “disruption of the order of justice” and “serious infringement of the legitimate rights and interests of others”. In the case of the offence of false litigation, the two constituent elements of “disruption of the order of justice” and “serious infringement of the legitimate rights and interests of others” are both parallel and intrinsically uniform, and they are inextricably intertwined in judicial practice and difficult to fully separate or separate. Thus, the interpretation provides for both elements of the above-mentioned constituent elements in the criteria for incriminating, while paying attention to the corresponding hierarchy between the criteria for incriminating and the statutory standard of promotion。
On the basis of the above principles, article 2 of the interpretation provides for six incriminating criteria, including the imposition of protective measures by the people's court; the holding of hearings or interference with normal judicial activity; or the making of decisions, the creation of a property distribution programme, the filing of a case for enforcement of an arbitral award and a notarized claim; the fact that the perpetrator has a prior record of a criminal offence in a false suit; or the repeated commission of a false suit. Article 3 of the interpretation sets out seven statutory standards for the promotion of sentences, including seven cases of serious breaches of the order of justice and serious violations of the legitimate rights and interests of others。
Principles for dealing with the competition between false prosecution and other offences
In accordance with article 307 bis, paragraph 3, of the criminal code, article 4 of the interpretation defines the principle of the commission of a false prosecution offence for the purpose of taking property, which in turn constitutes another offence, i. E. The commission of a false prosecution offence for the purpose of taking property, which in turn constitutes the offence of fraud, the offence of misappropriation of office, the refusal to execute a sentence, the adjudication of an offence and the offence of embezzlement, among others, are punishable by heavier penalties. It should be noted that the principle of treatment laid down in article 307, first paragraph, of the penal code, which deals primarily with the creation of an imaginary collaborator in the case of a false prosecution offence for the purpose of stealing property and an offence for the purpose of committing an offence against property, is not appropriate to extend to cases of complicity in the commission of an offence by other means。
Article 5 of the interpretation, which defines the principles governing the use of the office of a judicial officer in the commission of a false procedural offence under article 307, part 1, paragraph 4, of the penal code, provides that the judicial officer shall be liable to a heavier penalty for the use of his or her office in the commission of a false legal act in conjunction with another person, and shall also constitute the offence of abuse of his or her functions, civil incompetence in the administration of justice, execution of a sentence, determination of the offence of abuse of authority, etc., and a heavier penalty in accordance with the more severe penalty。
Article 6 of the interpretation sets out the principle of treatment of participants in proceedings for the commission of a joint offence of false action, i. E. The participation of the participants in the proceedings in conspiring with others to commit the act of false action is punishable by a common offence, and constitutes an offence against testimony and contributes to the destruction of evidence, forgery, etc., and a heavier penalty is imposed in accordance with the heavier penalty。
Qualitative treatment of “partially altered” false actions
The characterization of “partially altered” false actions is one of the difficult questions of the interpretation. After repeated study, article 7 of the interpretation makes it clear that the falsification of the facts of the case by means such as falsification of evidence, the deception of the documents of the people's court constitutes an offence and is subject to criminal liability under articles 280 and 307 of the criminal code, among others. There are four main issues:
First, as previously mentioned, the “partially altered” false proceedings do not fall within the scope of the offence of false proceedings under the penal code and should not be criminalized as false proceedings。
The second is that “partially altered” fraudulent litigation is not generally appropriate for characterization as misappropriation offences. The first is that the standard of proof in civil proceedings is generally highly abstract, as well as the allocation of responsibilities “who claims to prove” and that the circumstances of the plaintiff's conduct in the course of civil proceedings, such as the amount of the subject matter of the action, the alteration of the manner of performance, the period of performance, etc., are more complex, either because the content of the legal provisions is not properly understood or because of the tactical nature of the proceedings, and that it cannot be generally recognized that it has the subjective purpose to illegally occupy the property of another person. Second, the principle of good faith is a fundamental principle of the code of civil procedure, which requires the parties to exercise their procedural rights, to comply with their legal obligations, to observe the procedural order and to comply with the legal decisions in force. In practice, however, the reasons for the violation of the principle of good faith in civil proceedings are more complex, and a “partially altered” false action can generally be sanctioned by the imposition of judicial penalties for failure. Therefore, it is not generally appropriate to characterize “partially altered” fraudulent actions as pecuniary offences in terms of adherence to the principle of objective consistency, criminal humility and reasonable control of the face of criminal assault。
Thirdly, the conduct of means in a “partially altered” false suit constitutes an offence and is qualified as such under the relevant provisions of the penal code. In the course of carrying out a “partially altered” false legal action, the perpetrator's specific means may constitute other offences, such as the forgery of a unit's seal by the perpetrator during the forgery of evidence or the act by the perpetrator of perjury against another person, for which the offence of forgery of the seals of companies, enterprises, undertakings, people's groups, etc., can be punished under articles 280 and 307 of the criminal code。
Fourth is the response of the office of the supreme prosecutor to the question of the law applicable to the seizure of the property of another person by means of a court decision by means of false evidence (2002) question of the effectiveness of hdr no. 18, hereinafter referred to as the 2002 supreme review response. The supreme review response 2002 states that “the criminal liability of the perpetrator for fraud is not appropriate for the purpose of unlawful possession, which is primarily the result of the ordinary judicial activity of the people's court, which is the result of the fraudulent taking of evidence in order to obtain possession of the property of another person. If, at the time the perpetrator forges evidence, the forgery of the seals of a company, enterprise, establishment, people's group constitutes an offence, criminal liability shall be established for the forgery of the seals of a company, enterprise, establishment or people's group, in accordance with article 280, paragraph 2, of the penal code, and if the perpetrator makes an act of perjury against another person, criminal liability shall be established for the obstruction of testimony, in accordance with article 307, paragraph 1, of the criminal code.” subsequently, in 2006, the research unit of the supreme people's court, recontribution on the application of the law concerning the falsification of evidence for the taking of property by litigation (l. D. [2006]) (73) it is specified that the provisions of the supreme review response 2002 may be applied in such cases. There are differences of opinion between the criminal law theory and practice on the two documents mentioned above, as well as different approaches in practice. In our view, the criminal code amendment (ix) added the offence of false prosecution, and the supreme review response of 2002 has effect only in cases other than the offence of false prosecution, mainly “partially altered” false litigation。
