论虚假诉讼的刑事追诉程序之启动

Research on Starting the Criminal Prosecution Procedure against False Lawsuit

遏制虚假诉讼有两种方式,一种是民事纠错,另一种是刑事制裁。鉴于民事诉讼基本遵循辩论主义和当事人处分原则,民事诉讼的事实调查功能在发现虚假诉讼行为方面存在一些局限性。有效遏制虚假诉讼已成为当前刑事立法领域十分关注的问题。无论虚假诉讼是否单独入罪,亦或者是利用现有刑事罪名对其予以打击,在虚假诉讼的刑事追诉程序启动上都存在诸多需要深入思考的问题。鉴于虚假诉讼的特殊性,应当明确由检察机关行使对虚假诉讼的刑事追诉权。在刑事追诉程序启动时,需要处理好刑事追诉与民事裁判、调解之间的冲突。

There are two ways to curb the false lawsuit. One is civil correction, the other is criminal sanction. In view of the civil litigation basically following the principle of debate and disposition of the parties, there are some limitations on finding false lawsuit by civil litigation. Effectively curbing the false lawsuit has become very concerned in the field of criminal legislation. No matter whether the false lawsuit is punished as a fraud litigation charge, or as another charge, there are many problem to be further researched in the aspect of startingthe criminal prosecution procedure against false lawsuit. In view of the particularity of false lawsuit, the legislation should be clear that the procuratorial organs has power to prosecute the false lawsuit. When starting the criminal prosecution procedure, the conflicts between criminal prosecution and civil judgment should be mediated.