侵财型诉讼欺诈行为的刑法评价

Property-torts Litigation Fraud in Criminal Law——From Assertoric to Normative

鉴于诉讼欺诈在客观行为表现和侵犯客体方面的特异性,建议在将来修订刑法时应当对其作出专门规定,体系上应归类于"妨害司法罪"。在程序衔接上,如果法院已经受理诈骗人的虚假诉讼但未作出财产处分决定,可裁定驳回原告的起诉,同时将有关材料移送公安机关立案侦查;对法院已经受理诈骗人的虚假诉讼并已作出财产处分决定的,可在确认先前的民事判决错误的基础上终止执行该裁判,已经执行的,直接向诈骗人追缴赃款赃物。

Property-torts litigation fraud should be under penalty of crime of fraud. In terms of specificity of objective act and object, this essay suggests that a special provision for litigation fraud should be made when criminal law is revised. It should be in the chapter of crime of impairing the administration of justice. In regard of procedure linkage, if the court has accepted and heard the litigation fraud case, but the decision of property adjustment has not been made, the court could dismiss the action and evoke the police for investigation. As the court has accepted and heard the litigation fraud case and the decision of property adjustment has been made, the court ought to confirm the mistake of original judgement and end the execution. If it has been executed, illicit money and goods should be recovered directly.