“诉讼诈骗”如何适用法律?——以实然和应然为视角

Passing Law Dealing with Fraud by Lawsuit——From the Perspective of “Being” and “Ought to Be”

“诉讼诈骗”应当如何适用法律?从实然的角度而言,将其作犯罪处理将违背刑法基本理论和立法规定;从应然的角度言,“诉讼诈骗”具有应然的刑事违法性,其侵犯的主要客体为“人民法院正常的审判活动”,从而应当构成犯罪。为此,有必要在刑法中增加“诉讼诈骗罪”,将其列于“妨害司法罪”一节中。

How to deal with “fraud by lawsuit” legally? From the perspective of “being”, if it is treated as a crime, there will be the problem of violating the basic principle of criminology and the law provisions. From the perspective of “ought to be”, there will be the problem of breaking the criminal law, and the main object harmed will be “the normal trying action of the court”. From this viewpoint, “fraud by lawsuit” should be regarded as a crime. So, it is necessary to supplement “fraud by lawsuit” to the criminal law in the section of “judicature-impairment”.