诉讼欺诈之定性分析及刑法规制
发布时间：2018-08-07 06:28
【摘要】：当前社会,部分人为了达到其追求更多的经济及其他利益的目的,而不惜采取各种方法、使用各种手段,这使得诉讼,这一用来维护社会公平正义的程序也无端被非法利用,成为这些人谋利的工具;加之我国相关法律尚未对该种行为进行具体明确的规制以及司法不力等方面的原因,使得诉讼欺诈在我国日益猖獗。而也正是由于我国刑法等有关法律对诉讼欺诈无明确的规定,使得在司法实践中各法院对诉讼欺诈的定性存在天壤之别,有的以无罪论处,有的仅以民事制裁对该行为进行规制,有的将之定性为诈骗罪,还有的将其归入妨害司法罪……而理论界对诉讼欺诈亦存在罪与非罪,此罪与彼罪之争。众所周知,诉讼欺诈不仅侵害公私财产所有权以及被害人的其他合法权益,而且扰乱了司法秩序,浪费有限的司法资源,具有极其严重的社会危害性。对于诉讼欺诈,用刑法对其进行规制不仅符合法益保护原则,而且可以使我国法律体系或条文之间达到内在的完善与融贯,增强法律体系的完整性与协调性。但是诉讼欺诈又有其特殊的内涵与外延,其犯罪构成不仅不同于财产犯罪中的诈骗罪、敲诈勒索罪、抢劫罪及妨害司法罪中的伪证罪、妨害作证罪等,而且有异于刑法分则中的任一犯罪。有鉴于此,有必要对诉讼欺诈进行单独立法来予以规制。对于诉讼欺诈,国外有多种立法模式,通过对国外立法模式的分析、借鉴,找出适合中国国情的模式,应当在我国刑法分则中设立诉讼欺诈罪,并将其归入妨害司法罪中去。
[Abstract]:In the current society, some people, in order to achieve their goal of pursuing more economic and other interests, do not hesitate to adopt various methods and use various means, which makes litigation, the procedure used to safeguard social fairness and justice, to be used unjustifiably and illegally. To become the tool for these people to profit, coupled with the fact that the relevant laws of our country have not yet carried out the specific regulation of this kind of behavior and the lack of justice, which makes the litigation fraud rampant day by day in our country. But it is precisely because the criminal law and other relevant laws of our country do not have clear provisions on litigation fraud, so that in judicial practice, there is a great difference in the nature of litigation fraud in various courts, some of which are treated as innocent. Some only regulate the act with civil sanctions, some characterize it as fraud, and others classify it as an offence of obstruction of justice. But the theory circle also has the crime and the non-crime to the lawsuit fraud, this crime and that crime dispute. As we all know, litigation fraud not only infringes the public and private property ownership and other legitimate rights and interests of victims, but also disturbs the judicial order, wastes limited judicial resources, and has extremely serious social harm. In the case of litigation fraud, the use of criminal law not only conforms to the principle of legal interest protection, but also can make the internal perfection and integration between the legal system or provisions of our country, and enhance the integrity and coordination of the legal system. However, litigation fraud has its special connotation and extension, and its criminal constitution is not only different from the crime of fraud, extortion, robbery and perjury in the crime of obstruction of justice, and the crime of obstruction of testimony, and so on, which is not only different from the crime of fraud in property crime, the crime of extortion, the crime of robbery and obstruction of justice, etc. And there is a crime different from any of the specific provisions of the criminal law. In view of this, it is necessary to separate legislation to regulate litigation fraud. As for litigation fraud, there are many kinds of legislative models in foreign countries. Through the analysis of foreign legislative models and drawing lessons from them, we should find out the mode suitable for the national conditions of China. We should set up the crime of litigation fraud in the special provisions of criminal law of our country, and classify it into the crime of obstruction of justice.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.3
本文编号：2169175
[Abstract]:In the current society, some people, in order to achieve their goal of pursuing more economic and other interests, do not hesitate to adopt various methods and use various means, which makes litigation, the procedure used to safeguard social fairness and justice, to be used unjustifiably and illegally. To become the tool for these people to profit, coupled with the fact that the relevant laws of our country have not yet carried out the specific regulation of this kind of behavior and the lack of justice, which makes the litigation fraud rampant day by day in our country. But it is precisely because the criminal law and other relevant laws of our country do not have clear provisions on litigation fraud, so that in judicial practice, there is a great difference in the nature of litigation fraud in various courts, some of which are treated as innocent. Some only regulate the act with civil sanctions, some characterize it as fraud, and others classify it as an offence of obstruction of justice. But the theory circle also has the crime and the non-crime to the lawsuit fraud, this crime and that crime dispute. As we all know, litigation fraud not only infringes the public and private property ownership and other legitimate rights and interests of victims, but also disturbs the judicial order, wastes limited judicial resources, and has extremely serious social harm. In the case of litigation fraud, the use of criminal law not only conforms to the principle of legal interest protection, but also can make the internal perfection and integration between the legal system or provisions of our country, and enhance the integrity and coordination of the legal system. However, litigation fraud has its special connotation and extension, and its criminal constitution is not only different from the crime of fraud, extortion, robbery and perjury in the crime of obstruction of justice, and the crime of obstruction of testimony, and so on, which is not only different from the crime of fraud in property crime, the crime of extortion, the crime of robbery and obstruction of justice, etc. And there is a crime different from any of the specific provisions of the criminal law. In view of this, it is necessary to separate legislation to regulate litigation fraud. As for litigation fraud, there are many kinds of legislative models in foreign countries. Through the analysis of foreign legislative models and drawing lessons from them, we should find out the mode suitable for the national conditions of China. We should set up the crime of litigation fraud in the special provisions of criminal law of our country, and classify it into the crime of obstruction of justice.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.3
【参考文献】
相关期刊论文 前3条
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3 陈桂明,李仕春;诉讼欺诈及其法律控制[J];法学研究;1998年06期
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