我国诉讼诈骗问题研究综述

Review of the Problem of Fraud Litigation

诉讼诈骗问题在我国司法实践中有愈演愈烈之势。对行为人通过伪造证据或指使他人作伪证等手段,向法院提起民事诉讼,诱使法院作出有利于自己的判决,从而获取他人财物或者逃避债务的行为,学界多称之为"诉讼诈骗"或"诉讼欺诈",还有学者使用"恶意诉讼"、"虚假诉讼"等概念,上述概念之间在内涵上有一定的区别。国外部分国家的刑法对诉讼诈骗行为有明文规定,我国刑法尚且缺乏。德日刑法理论对诉讼诈骗是否构成诈骗罪存在着"肯定说"与"否定说"两种观点,我国刑法理论对诉讼诈骗的定性存在着"无罪说"、"诈骗罪说"、"敲诈勒索罪说"、"妨害司法罪说"、"新罪说"几种主要观点。关于诉讼诈骗中法院是否有处分当事人财产的权限、是否实施了财产处分行为,学者有不同观点。

Litigation fraud problem has become worse and worse in judicial practice of our country. By fabricating evidence or directing others to commit perjury,litigation sometimes can be used by someone as a means to induce the court to make a judgment in their favor,and then gain other people’s property or evade debt. These kinds of acts have been called "litigation fraud"by some scholars,while some other scholars call them "malicious prosecution",or "false lawsuit",and so on. There are some differences in the content of these concepts. Fraud litigation is expressly provided in criminal law in some countries overseas,but not in our country. Whether litigation fraud constitutes fraud? There are positive and negative views in German and Japanese criminal law theory. On conviction of fraud litigation,there are several main points in China’s criminal law theory as "not guilty","fraud","the crime of extortion","the crime of obstruction of justice ",and "new crime". Scholars have different views on whether the court has permission to dispose of property and whether the court’s act is disposition of property.