论虚假诉讼侵权责任

发布时间：2018-05-26 17:51

本文选题：虚假诉讼 + 一般侵权　；参考：《安徽大学》2017年硕士论文

【摘要】：虚假诉讼行为在我国呈高发态势,危害深重。2013年修订后的《民事诉讼法》对虚假诉讼做了规定,2015年通过的《刑法修正案(九)》将虚假诉讼入罪。但现行法律规制具有缺陷,民事程序法和刑事实体法上的责任承担都不具有弥补受害人损失的功能,《侵权责任法》却没有对其做明确规定,虚假诉讼侵权在法律适用上缺乏具体依据。实践中已出现虚假诉讼侵权的裁判案例,各地在打击虚假诉讼上的有益探索使越来越多的虚假诉讼侵权得以查实,有关虚假诉讼侵权的立法尝试及理论探讨也日趋深入。因此,应当将虚假诉讼纳入侵权行为。虚假诉讼既包括行为人通谋,虚构本不存在的事实提起诉讼,损害他人合法权益的双方串通型情形,也包括当事人一方以虚构事实、证据等方式,提起诉讼侵害对方当事人权益的单方欺诈型行为。就其存在领域看,包含民事、行政和刑事诉讼,行为目的有侵财和非侵财型之分,捏造内容可为全部案件事实或部分事实,其行为方式不限于虚构事实,也包括隐瞒真相。虚假诉讼是恶意诉讼和滥用诉权的下位概念。具有诉讼领域广泛、侵犯对象多样及行为手段隐蔽等特征。虚假诉讼侵权责任适用过错责任原则,行为主体和责任主体不存在分离情形,是典型的一般侵权。虚假诉讼侵权责任的重心不在于保护诉权,而是要围绕实体权益,明确责任构成。行为人应实施了串通性或者虚假性的行为,并延伸至诉讼,其捏造的事实要符合起诉条件并令法院信服。虚假诉讼侵权在主观上为故意,主要表现为直接故意,在某些情况下,也可为间接故意,但重大过失不构成。虚假诉讼的结果是使他人权益受到侵害,主要是利益之侵害,包含债权利益、股东利益、票据利益、占有及纯粹经济损失等,财产损害和非财产损害都应涵盖在内。虚假诉讼侵权责任产生的诉讼领域为包含执行、调解等程序的民事、行政、刑事诉讼领域,但是排除仲裁和行政处罚等准司法行政领域。其责任承担主体既包括诉讼当事人,也包括证人、鉴定人、翻译人员等其他诉讼参与人,还包括律师,但是不应包括司法人员。其责任承担方式主要但不限于赔偿损失,就赔偿损失的范围而言,受害方因涉入诉讼所产生的一切必要费用、虚假诉讼本身所带来的财产损失、为推翻虚假诉讼结果而采取各种救济程序所支付的费用都应得到赔偿。律师费应包含在赔偿范围之内,但对精神损害赔偿要严格限制,而惩罚性赔偿则不宜适用。
[Abstract]:The false litigation behavior in our country is high, the harm is very serious. The revised Civil procedure Law in 2013 provides for the false lawsuit, and the Criminal Law Amendment (9) passed in 2015 criminalizes the false lawsuit. However, the current legal regulation has its defects. Neither the civil procedure law nor the criminal substantive law has the function of making up for the loss of the victim, but the Tort liability Law does not clearly provide for it. The legal application of false litigation tort is lack of concrete basis. In practice, there have been adjudication cases of false litigation infringement, and the beneficial exploration in cracking down on false litigation has made more and more false litigation infringement verified, and the legislative attempt and theoretical discussion on false litigation tort have been deepened day by day. Therefore, the false litigation should be included in the infringement. The false litigation includes not only the collusion of the two parties who colluded with the perpetrator, but also the collusion of the two parties in bringing a lawsuit against the facts which do not exist in the fictitious nature, and also in the form of fictitious facts and evidence by one of the parties. A unilateral fraudulent act that infringes the rights and interests of the other party. In terms of its field of existence, it includes civil, administrative and criminal proceedings. The purpose of the act is divided into two types: invading money and not invading money. The fabricated content can be all the facts of the case or part of the facts, and its behavior is not limited to fictitious facts, but also includes concealment of the truth. False litigation is a concept of malice litigation and abuse of right of action. It has a wide range of litigation fields, various objects of aggression and covert means of action and so on. The principle of fault liability is applicable to the liability for tort in false litigation, and there is no separation between the subject of conduct and the subject of responsibility. It is a typical general tort. The focus of tort liability in false litigation is not to protect the right of action, but to define the constitution of liability around substantive rights and interests. The perpetrator should carry out collusion or falsehood, and extend to the lawsuit. The fabricated facts should conform to the conditions of prosecution and convince the court. The infringement of false litigation is intentional subjectively, mainly manifested as direct intent, and in some cases it can also be indirect intent, but gross negligence does not constitute. The result of false litigation is that the rights and interests of others are infringed, including creditor's rights interests, shareholders' interests, bill interests, possession and pure economic losses, property damage and non-property damage should be covered. The litigation field of tort liability in false litigation is civil, administrative and criminal litigation including execution, mediation and other procedures, but excludes quasi-judicial administrative fields such as arbitration and administrative punishment. Its main body of responsibility includes not only litigant, but also witnesses, experts, translators and other participants in litigation, but also lawyers, but should not include judicial personnel. Its liability is mainly but not limited to compensation for the loss. In terms of the scope of compensation for the loss, all necessary costs incurred by the aggrieved party as a result of its involvement in the proceedings, and property losses caused by the false litigation itself, The expenses incurred in various relief proceedings to overturn the false outcome of the action should be compensated. Legal fees should be included in the scope of compensation, but moral damages should be strictly limited, and punitive damages should not be applied.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925

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