从民刑对接角度浅析“虚假诉讼第一案”

发布时间：2018-12-12 01:52

【摘要】：随着我国经济的发展,虚假诉讼行为也愈演越烈,为了遏制这种既危害国家司法秩序,又侵害他人合法权益的行为。近年来,我国加强了对虚假诉讼类案件的重视程度,首先在2012年修改的民诉法中规定了虚假诉讼行为,之后又在15年的《刑法修正案(九)》中正式新设"虚假诉讼罪",这样一来,在立法上,我国就完成了虚假诉讼的民刑对接。但是,在实体法与程序法中,我国对这种行为的规制仍然有许多不完善的地方。使虚假诉讼并没有得到最佳的规制效果。本文通过对"虚假诉讼第一案"进行分析,探讨了在民刑对接角度下虚假诉讼第一案应如何判决以及在判决中可能遇到的问题,并作出了相关思考。"虚假诉讼第一案"作为第一例由我国最高人民法院确认的虚假诉讼案件,犹如象征着我国司法机关为维护司法秩序,保护司法公信力而吹响的号角,为虚假诉讼行为敲响警钟。此案的行为人特莱维公司与欧宝公司多次恶意兴讼、多次虚构债权债务关系的行为体现出两公司主观恶性大恶意侵占他人财产数额大。欧宝公司与特莱维公司兴起的"虚假诉讼第一案"已经足以满足刑事虚假诉讼罪的犯罪构成,但是由于该案判决时间略早于《刑法修正案(九)》出台时间,所以虚假诉讼第一案的行为人并没有受到刑事制裁,使该案的示范意义大打折扣。对虚假诉讼第一案进行法理上的认定及分析不仅有助于厘清该案的法律脉络更有助于深入挖掘该案的价值——虚假诉讼第一案的价值不仅停留在我国最高法认定的第一例民事虚假诉讼案上更体现在通过此案研究我国民刑对后对虚假诉讼行为的规制问题上。要加强对虚假诉讼行为的规制,在民事上要提高虚假诉讼行为的犯罪成本,畅通案外人的救济渠道,才能从根本上降低虚假诉讼案件的发生几率,在刑事上,要细化虚假诉讼罪的相关规定,在程序法角度上,要明确虚假诉讼的追诉机关并建立民刑对接程序、保障案外人能通过自诉使虚假诉讼行为人受到法律制裁。本文从虚假诉讼第一案引入,分析我国虚假诉讼民刑对接后法律规制的困境,并提出相关建议。第一章,绪论部分,介绍本文选题目的意义以及本文选题的依据来源。第二章,介绍虚假诉讼第一案的案情,并从民事角度和刑事角度分别对虚假诉讼第一案作出认定:在民事上认定虚假诉讼第一案,同时虚假诉讼第一案也满足刑事虚假诉讼罪的犯罪构成。第三章,从民事法角度分析虚假诉讼第一案存在违法成本过低、第三人撤销之诉运转不利的情况。从刑事法角度分析因刑法条文设置模糊导致虚假诉讼第一案若进行刑事判决,则会出现罪名和量刑幅度难以确定的问题。从民刑对接程序法角度分析,虚假诉讼第一案存在追诉程序和追诉机关未明确、刑事自诉制度缺乏规定的问题。第四章对虚假诉讼民刑对接后存在的问题作出思考并提出建议。
[Abstract]:With the development of our country's economy, the action of false litigation is becoming more and more serious, in order to restrain this kind of behavior which not only endangers the national judicial order, but also infringes the legal rights and interests of others. In recent years, our country has strengthened the attention to the false lawsuit type case, first stipulated the false lawsuit behavior in the civil action law which was amended in 2012, and then formally established the "false lawsuit crime" in the "Criminal Law Amendment (9)" in the 15 years'"Criminal Law Amendment (9)". In this way, in legislation, our country has completed the docking of civil punishment of false litigation. However, in substantive law and procedural law, there are still many imperfections in the regulation of this kind of behavior in our country. So that false litigation did not get the best regulatory effect. Through the analysis of "the first case of false Litigation", this paper discusses how to judge the first case of false Litigation under the angle of docking of civil punishment and the problems that may be encountered in the judgment, and makes some relevant considerations. " As the first case of false litigation confirmed by the Supreme people's Court of our country, "the first case of false Litigation" is like the horn sounded by the judicial organs of our country in order to maintain the judicial order and protect the judicial credibility, and it is a wake-up call for the false litigation. The actor of this case, Trevor Company and Opel Company, have filed a lawsuit with malice for many times, and the behavior of making up the relationship between creditor's rights and debts many times shows that the two companies' subjective vicious and malicious encroachment on other people's property amount is large. The "first case of false Litigation" developed by Opel and Trevor has been sufficient to satisfy the criminal constitution of the crime of criminal falsehood, but since the judgment in this case was a little earlier than the time when the Criminal Law Amendment (9) was issued, Therefore, the perpetrators of the first case of false litigation were not subject to criminal sanctions, which greatly reduced the demonstration significance of the case. To identify and analyze the legal principle of the first case of false Litigation is not only helpful to clarify the legal context of the case, but also help to dig into the value of the case-the value of the first case of false Litigation not only stays in the Supreme Law of our country. The first case of civil false litigation is reflected in the study of the regulation of false litigation after our national punishment through this case. Only by strengthening the regulation of false litigation, increasing the criminal cost of false litigation and unblocking the relief channels of outsiders in the case, can the probability of false litigation cases be reduced fundamentally, and the criminal law should be taken into account. To refine the relevant provisions of the crime of false litigation, from the point of view of procedural law, it is necessary to make clear the prosecution organs of false litigation and to establish civil and criminal docking procedures, so as to ensure that the private prosecution can make the perpetrators of false litigation subject to legal sanctions. From the first case of false litigation, this paper analyzes the dilemma of the legal regulation after the docking of civil punishment of false litigation in China, and puts forward some relevant suggestions. The first chapter, the introduction, introduces the purpose and significance of this paper and the basis of the topic. The second chapter introduces the case of the first case of false litigation, and determines the first case of false litigation from the angle of civil and criminal. At the same time, the first case of false litigation also satisfies the criminal constitution of the crime of false litigation. The third chapter analyzes the situation that the first case of false litigation is too low in cost and the third party is unfavorable in operation from the angle of civil law. From the point of view of criminal law, if the first case of false litigation is decided by criminal law due to the ambiguity of the provisions of criminal law, it will appear the problem that the crime and the range of sentencing are difficult to determine. From the point of view of civil and criminal docking procedure law, the problems of prosecution procedure and prosecution organ are not clear in the first case of false litigation, and the system of criminal private prosecution is lack of stipulation. Chapter four gives some thoughts and suggestions on the problems existing after docking of civil penalty in false litigation.
【学位授予单位】：延边大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.1;D925.2

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