诉讼欺诈的法律定性与司法处理

The Qualitative Analysis and Suggestion on Criminal Justice of Fraud in Lawsuit

传统型和政策型诉讼欺诈在民事诉讼中频繁发生,并呈现出类型集中、抗辩弱化、结案特殊、事实虚构等特征。国内外对此类行为的定性存在争议,我国刑法也缺少明确界定,司法实践主要按无罪、诈骗罪、敲诈勒索罪等处理。由于社会危害性符合犯罪的本质特征,刑事可罚性符合成本收益均衡原则,制裁手段的失效、法律制度间的衔接化等共同决定了其入罪的正当性。要结束"同罪不同罚"的乱象,需要构建统一规则下的司法解决模式:侵财性诉讼欺诈以目的行为定罪处罚,但未达到诈骗罪法定数额的以行为手段定罪处罚;非财产性诉讼欺诈以行为手段定罪处罚。

The phenomena of Litigation fraud in civil action has become increasingly intense.It includes multiple features:the concentricity of case type,the weak plea,the special closing methods,the close relationship between subjects.The punishment is highly controversial at home and abroad.Meanwhile it lacks of corresponding clauses in the existing penal codes.Therefore,the act of litigation fraud was largely treated as no guilty,still it may be punished as the crime of fraud,extortion,or other crimes.However,its social harmfulness conforms to the essence of criminal behaviour.Its criminal punishment conforms to theory of cost-benefit.The failure of sanctions and the connection of legal system together determine the legitimacy of conviction.To achieve the same dealing with the same case,it is necessary to build judicial model of uniform rules,which the behavior of property litigation fraud can be punished by target behaviour,non-constitute the crime of fraud can be punished by means simultaneously,while the behavior of non-property litigation fraud can be punished by means in the criminal law.