On 26 september, the supreme people's court, the supreme people's procuratorate, published the interpretation of certain issues of the law applicable to criminal cases in false litigation (hereinafter referred to as the interpretation). The interpretation was adopted by the judicial committee of the supreme people's court at its 1732nd meeting, on 25 january 2018, and by the prosecutorial committee of the thirteenth session of the supreme people's procuratorate, on 13 june 2018, and will take effect on 1 october 2018。
In recent years, there has been a proliferation of false proceedings in the field of civil and commercial justice. The people reacted strongly to the serious infringement of the legitimate rights and interests of others and the erosion of the authority and credibility of the judiciary by false lawsuits and criminal acts. The supreme people's court and the supreme people's procuratorate have successively issued a series of provisions to punish such acts in accordance with the law。
The interpretation, which takes into account the practical aspects of criminal justice, makes clear a number of issues relating to the specific application of the offence of false proceedings under criminal law. It is of great importance that, in practice, a combination of civil and criminal means be used to bring to justice the criminal offence of false proceedings in civil and commercial cases and in enforcement proceedings, to maintain normal judicial order and to protect the legitimate rights and interests of citizens, legal persons and other organizations。
Twelve articles of the interpretation provide for the definition of the offence of false prosecution, the criteria for sentencing the conviction, the principle of concurrent punishment, the certainty of criminal policy and the determination of territorial jurisdiction。
The interpretation provides for the definition of, and sentencing criteria for, fraudulently prosecuted offences of widespread concern and controversy in doctrine and practice
(b) any person who unilaterally or in bad faith conspires with another person, by means of false evidence, false statements, etc., to fabricate a civil legal relationship, fabricate a civil dispute and bring a civil action before a people's court shall be deemed to have committed a criminal offence under criminal law
An application to the people's court for enforcement of an arbitral award made on the basis of a fabricated fact, an instrument of notarized claims, or an application to challenge the subject matter of enforcement on the basis of a fabricated fact, or an application to participate in the distribution of property, is an offence under the criminal law
If a civil action is brought on the basis of a fabricated fact, which results in a decision of the people's court on the basis of a fabricated fact, it shall be deemed an offence of false suit, and if, in the absence of such a decision, the perpetrator has a previous record of a criminal offence in a false suit, or has brought a civil action on several occasions on the basis of a fabricated fact, or has the effect of causing the people's court to take protective measures, leading to the holding of a hearing by the people's court, or interference with normal judicial activity, shall also be punishable by false suit。
The interpretation also states that:
(b) the criminal case of false prosecution is governed by the people's court at the place where the case is heard or the place where the enforcement court is located, in order to facilitate prompt access to evidence and to fix it, while avoiding the deliberate use of criminal means by some parties to civil proceedings to interfere with the normal conduct of civil and commercial cases
In cases where judicial officials use their powers in conjunction with others to commit a criminal offence in a false suit, a different jurisdiction may be introduced to ensure that such cases are heard fairly。
The interpretation by the supreme people's court of certain issues of the law applicable to criminal cases in false litigation was adopted by the trial committee of the supreme people's court at its 1732nd meeting, on 25 january 2018, and by the thirteenth procuratorial committee of the supreme people's procuratorate, at its second meeting, on 13 june 2018。
Supreme people's court
26 september 2018
Supreme people's court
Criminal cases concerning the handling of false proceedings
Interpretation of selected issues of applicable law
(adopted by the 1732nd meeting of the trial committee of the supreme people's court on 25 january 2018 and the second meeting of the thirteenth procuratorial committee of the supreme people's procuratorate on 13 june 2018
Effective 1 october 2018)
Rule 2018. Number 17
In order to punish the criminal activities of false proceedings in accordance with the law, to maintain judicial order and to protect the legitimate rights and interests of citizens, legal persons and other organizations, in accordance with legal provisions such as the criminal code of the people's republic of china, the code of criminal procedure of the people's republic of china and the code of civil procedure of the people's republic of china, a number of questions concerning the law applicable to the handling of such criminal cases are explained below:
Article 1. Any person who, by means of false evidence or false statements, commits one of the following acts, fabricating a civil legal relationship, falsifying a civil dispute and bringing a civil action before a people's court shall be deemed to have brought a civil action “on the basis of a false fact” as provided for in article 307, paragraph 1, of the penal code:
(i) an malicious conspiracy with one of the spouses to fabricate a common debt between the spouses
(ii) malicious collusion with others to fabricate debt relations and debt-for-money agreements
(iii) involuntarily colludes with the company, the legal representative of the enterprise, the director, the supervisor, the manager or other manager to fabricate the company, the business debt or the guarantee obligation
(iv) fabrication of an ipr tort relationship or an unfair competition relationship
(v) declare false claims during insolvency proceedings
(vi) malicious collusion with the enforced person, the fabrication of a claim or priority over attachment, seizure, freezing of property, security interest
(vii) other acts involving either unilateral or malicious collusion with others in the fabrication of civil legal relationships such as identity, contract, tort, inheritance, etc。
To conceal the fact that the debt has been paid in full, to bring a civil action before the people's court to demand that another person perform the debt, on the basis of “civil action based on a false fact”。
An application to the people's court for enforcement of an arbitral award made on the basis of a fabricated fact, an instrument of a notarized claim, or an application to participate in the distribution of property in the execution of the subject matter in the course of civil enforcement by means of a fabricated fact, is “a civil action brought on the basis of a fabricated fact” under article 307, paragraph 1, of the penal code。
Article 2. A civil action initiated on the basis of a false fact shall be deemed to be “aggression of the order of justice or serious infringement of the legitimate rights and interests of others” under article 307(1) of the penal code if:
(i) causing the people's court to take measures of preservation of property or of conduct on the basis of fabricated facts
(ii) to cause people's courts to sit and interfere with normal judicial activities
(iii) results in the people's court making decisions on the basis of fabricated facts, making property distribution programmes, or filing cases to enforce arbitral awards based on fabricated facts, notarized claims instruments
(iv) multiple civil actions based on false facts
(v) has been subject to civil action measures of constraint or criminal prosecution for having initiated civil proceedings on the basis of false facts
(vi) other circumstances which are prejudicial to the order of justice or which seriously infringe the legitimate rights and interests of others。
Article 3 shall be deemed to be “serious” under article 307(1) of the penal code if a civil action is instituted on the basis of a fabricated fact:
(i) in the case of article 2, paragraph 1, of this interpretation, causing economic loss of more than $1 million to others
(b) in one of the circumstances of article 2, paragraphs 2 to 4, of the present interpretation, if it seriously interferes with the normal activities of the judiciary or seriously impairs its credibility
(iii) the automatic performance by the obligor of the obligation of payment of the property established by the in force judgement or the enforcement of the property interest by the people's court, in an amount greater than one million dollars
(iv) if the claim of the other person is unattainable in an amount greater than one million dollars
(v) illegal possession of the property of another person, amounting to more than $100,000
(vi) caused others to be held in criminal detention, arrested measures or prosecuted for failing to implement a judgement or ruling of a people's court based on a false fact
(vii) other aggravating circumstances。
Article 4。
Article 5. Judicial officers who use their office to commit jointly with others the first three paragraphs of article 307 (1) of the penal code shall be subject to heavier penalties; they shall also be guilty of abuse of authority, of incompetence in the administration of justice, of execution of sentences, of offences involving abuse of authority, etc., and shall be liable to heavier penalties in accordance with the heavier penalties。
Article 6 litigants, witnesses, experts, etc. And other participants in the proceedings, in connivance with others, who have brought a false civil action, deliberately gave false testimony or made a false assessment, have jointly committed the acts of the first three paragraphs of article 307 (1) of the penal code, and are liable to punishment in accordance with the provisions of the joint offence; they also constitute offences against testimony and contribute to the destruction, falsification of evidence, etc., and are liable to heavier penalties in accordance with the more severe penalties。
Article 7 makes it an offence to tamper with the facts of a case by means of falsification of evidence and by deceiving the documents of a people's court, subject to criminal liability under articles 280 and 307 of the penal code。
Article 8 if the unit commits an act under article 307 (1) of the penal code, it shall, in accordance with the sentencing criteria set out in this interpretation, be liable to the punishment of the person directly responsible and other persons directly responsible, and shall impose a fine on the unit。
Article 9 gives effect to the first paragraph of article 307 of the penal code, which fails to meet the criteria of gravity. The perpetrator is a first-time offender, who voluntarily repents in the course of civil proceedings, who accepts the decision of the people's courts, who actively withdraws the proceeds or refunds the damages, may be considered guilty of a minor offence and who does not prosecute or exempt from criminal punishment; if it is necessary to impose the penalty, the penalty may be extenuating。
The provisions of paragraph 1 of this article shall not apply to judicial officials who use their office to commit acts under article 307, paragraph 1, of the penal code together with others。
Article 10. Criminal cases of false litigation are governed by the people's courts of the place where the court is seized or where the enforcement court is located. In the case of article 307, paragraph 4, of the penal code, the higher people's court may appoint the lower people's court to refer the case to other people's courts for trial。
Article 11 this interpretation refers to decisions, rulings, conciliations, payment orders, etc. Of people's courts in accordance with civil laws such as the code of civil procedure, the business insolvency act, etc。
This interpretation has been in force since 1 october 2018。
