虚假诉讼罪的“严重侵害他人合法权益”——从定罪条件到注意规定

“Seriously Infringing Others’ Legal Interests” in the Crime of False Lawsuit: From the Condition of Conviction to the Provision of Attention

虚假诉讼罪中,“严重侵害他人合法权益”与“妨害司法秩序”之间系包含关系。立法把“严重侵害他人合法权益”规定为虚假诉讼罪的选择性成立条件,显然是受到了虚假诉讼犯罪的现实样态和“从一重罪处断”思维的影响。但是,这不符合形式逻辑和虚假诉讼罪保护法益的要求,而且会出现处罚上的不协调,也与我国《刑法》第307条之一第3款的规定存在重复。所以,应当把“严重侵害他人合法权益”删除,为想象竞合犯原理的运用留下足够空间。

In essence,"seriously infringing others’ lawful rights and interests"contains"obstructing judicial order". Obviously,effected by the practical samples of the crime of false lawsuit and the thinking of "convicting and sentencing by the more serious crime",the lawmakers regard "seriously infringing others’ lawful rights and interests"as the selected condition of the crime of false lawsuit. However,this legislation not only does not conform to the requirements of formal logic and protecting legal interests of the crime of false lawsuits,but also leads to inconsistent in punishment,at the same time there is a repetition with the third paragraph of the 307 th provision of "Criminal Code". Therefore,"seriously infringing others’ lawful rights and interests"should be deleted from the elements of the crime of false lawsuit,leaving enough space for using the principle of imaginative joiner of offenses.