虚假诉讼的性质新论

New Discussion on the Nature of Litigation Fraud

虚假诉讼是指行为人为了谋取非法利益,采取虚构事实、伪造证据或贿赂法官等方式,通过单纯民事诉讼、刑事附带民事诉讼或行政诉讼,侵害他人合法权益情节严重的行为。虚假诉讼可以按照主观目的不同划分为谋取非财产利益型和谋取财产利益型。谋取非财产利益型按照具体的情形具体处理即可。谋取财产利益型应按照分工不同分别评价:当事人欺骗法官时,行为应该认定为诈骗罪;当事人与法官合谋时,行为应该认定为敲诈勒索罪。另外,当法官主动参与虚假诉讼时,法官与当事人构成共同犯罪。

Litigation fraud refers to the action that one institutes civil procedure, criminal action with supplementary civil procedure or administrative procedure by inventing the fact, fabricating the evidence or bribing judge, in order to seek illegal interest, which has seriously impaired others＇ legal interest. To clarify according to the different subjective purpose of litigation fraud, it can be divided into two types. One is seeking non property interest and another is seeking property interest. The type of seeking non property interest can be handled according to the specific situation. The type of judge being cheated should be handled according to crime of fraud. The type of seeking property interest should be handled according to the division of work： it should be found as crime of swindling when the parties cheat the judge, and it comes to offence of extortion by blackmail when the parties conspire with the judge. Furthermore, the parties and the judge commit a joint crime when the judge takes an active part in litigation fraud.