《刑法修正案(九)》虚假诉讼罪探析

Investigation of the Crime of the Fraudulent Lawsuit That Has Been Set Up in Amendment(Ⅸ) of the Criminal Law of the People's Republic of China

"虚假诉讼""诉讼诈骗""诉讼欺诈"等概念从定义到定性在民事、刑事法学领域以及司法实务领域都有不同的认识和关注点,但是这些概念所讨论的范畴基本是同一的,尤其集中在对上述行为是否构成诈骗罪的讨论上。《刑法修正案(九)》第35条增设了"虚假诉讼罪",虽然一定程度上有平息纷争的作用,但是对该罪的定义,构成要件,虚假诉讼行为与相关的诉讼诈骗行为之间的关系,以及与其他罪名之间在实务中如何辨析等问题都尚存争议。笔者试图在文中对此进一步做探析,以期通过对该罪的犯罪构成条件以及该罪条款中"竞合关系"下的他罪处理问题做充分解析,抛砖引玉,为司法实务中科学地解释和准确地适用"虚假诉讼罪"新规定提供理论支持。

The concepts of ＂Fraudulent lawsuit＂ ＂Litigation fraud Litigation cheating＂ have different identification and focus from definition to qualitation in the filed of the civil law, criminal law and the the judicial practice. But the categories of these concepts that has been discussed about are almost the same ,especially focusing on the discussion of whether these behaviors constitute the crime of defraud. The Amendment （IX） to the Criminal Law of the People＇s Republic of China has set up the crime of the fraudulent lawsuit in the article 35. Although it has quelled disputes to a certain extent, the definition of the crime, tatbestand, the relationship with the behavior of the fraudulent lawsuit and related litigation fraud and how to discriminate it with other crimes are still controversial . The writer tries to further investigate in this article on the tatbestand of this crime and how to deal with other crime on the circumstance of concurrent to provide theoretical support for the explanation and application of the crime of the fraudulent lawsuit more correctly, exactly and scientifically in the judicial practice.