First, the reasons for the increase of perjury in China
(A) China's legal provisions are not perfect.
1. The criminal law is not strict. The legal provisions of perjury in China's criminal law mainly include articles 305, 306 and 307 of the criminal law. It is worth pointing out that the crime of perjury stipulated in Article 305 and the crime of destroying evidence, forging evidence and obstructing testimony stipulated in Article 306 are only applicable to criminal proceedings. It does not apply to civil litigation.
Only Article 307 of the Criminal Law stipulates the crime of civil perjury. "Whoever prevents witnesses from testifying or instigates others to commit perjury by violence or bribery shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. Whoever helps a party destroy or forge evidence, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. Judicial personnel who commit the crimes mentioned in the preceding two paragraphs shall be given a heavier punishment. " It can be seen from this article that the criminal law does not stipulate the act of forging or destroying important evidence by the parties themselves and obstructing the people's court from hearing the case. According to the principle of a legally prescribed punishment for a specified crime in China's criminal law, we can know that perjury by the parties themselves does not constitute a crime in civil proceedings.
2. The provisions of the Civil Procedure Law are not strict. Article11of the Civil Procedure Law stipulates that "if a litigation participant or other person commits one of the following acts, the people's court may impose a fine or detention according to the seriousness of the case; If the case constitutes a crime, criminal responsibility shall be investigated according to law: (1) forging or destroying important evidence and obstructing the people's court from hearing the case; (2) using violence, threats or bribes to prevent witnesses from testifying or instigating, bribing or coercing others to commit perjury; The people's court may impose a fine or detention on a unit that commits one of the acts listed in the preceding paragraph; If it constitutes a crime, criminal responsibility shall be investigated according to law. " However, there is no clear stipulation in our laws on who will identify and sanction the cases of fines and detention, and how to start the procedures. This has caused two extremes in reality, one is arbitrary punishment and the other is no punishment.
(b) The system for witnesses to testify in court is incomplete.
Article 70 of China's Civil Procedure Law stipulates: "All units and individuals who know the case have the obligation to testify in court. The person in charge of the relevant unit shall support the witness to testify. If the witness is really unable to appear in court, he may submit written testimony with the permission of the people's court. " The focus now is on this "real difficulty". According to Article 56 of "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings": "The witness is really difficult to appear in court" refers to the following situations: (1) old and weak or unable to appear in court due to mobility difficulties; (two) the special post is really unable to leave; (three) the road is particularly long, and it is difficult to appear in court because of inconvenient transportation; (4) Unable to appear in court due to force majeure such as natural disasters; (five) other special circumstances can not appear in court. In the circumstances mentioned in the preceding paragraph, with the permission of the people's court, a witness may submit written testimony or audio-visual materials, or testify through two-way audio-visual transmission technology.
The author believes that, first, the regulations are not detailed enough. The law stipulates that witnesses have the obligation to testify in court, and also stipulates the legitimate reasons for not testifying in court. However, the provisions on this "practical difficulty" are too general, such as how old you should be, to what extent you are inconvenient to move, and the scope of special posts. Second, there is a legislative gap. It is not stipulated what legal responsibilities witnesses should bear if they refuse to testify in court without justifiable reasons or without the permission of the court, and what compulsory measures and punishment measures can be taken against them. It is really inappropriate to leave all this to the judge.
(3) The oath system for undocumented persons in China Civil Procedure Law.
The so-called witness oath system is to enhance the seriousness of witness testimony, and it is a guarantee that witnesses are willing to testify truthfully and bear corresponding legal responsibilities when they appear in court. At present, there are generally provisions on witness oath in the procedural laws of all countries in the world. Because according to common law, a witness must swear to tell the truth before he can hear his testimony. However, China does not have this system. Witnesses don't fully understand the significance of testifying in court and what kind of legal responsibility they should bear for perjury, and sometimes they are indifferent and lucky.
(d) The witness's legal concept is not strong.
At present, witnesses generally have the following psychology: (1) Providing perjury at the request of the parties. There are many reasons, some out of the feelings of relatives and friends, some driven by interests, some forced by violence and so on. (2) The witness does not testify in court. Some people are afraid that they will be retaliated by the other party when they testify in court, while others are afraid that their interests will not be compensated and they are unwilling to testify in court.
The perjury provided by witnesses has caused the deviation between legal facts and objective facts, seriously interfered with the judge's correct understanding of the case, affected the normal conduct of judicial trials, and led to the occurrence of unjust, false and wrong cases. If the witness does not appear in court, the judge and the opposing party will not know the ways and means to obtain testimony. The objectivity, authenticity and legitimacy of the testimony formed out of court only by a piece of paper are unbelievable. In the process of cross-examination, because the witness did not appear in court, cross-examination could not be carried out and many facts could not be clarified.
Second, the relevant provisions on perjury abroad
(a) the provisions of American law
1. Provisions on perjury. In the United States, perjury is strictly limited to federal law. Perjury refers to making false statements under oath or in the investigation of a jury. The statement must be deliberately false, that is, a lie, and it must be a meaningful lie to a certain issue in the lawsuit, not just misleading. In the United States, perjury is a felony, and the punishment is very heavy, with a maximum sentence of five years.
2. The witness oath system. According to Rule 603 of the U.S. Federal Rules of Evidence, before testifying, witnesses generally need to declare by oath or statement that they will fulfill their obligation to testify honestly. This is a long tradition of common law. On the one hand, it can remind witnesses of their obligation to testify truthfully. On the other hand, if a witness intentionally perjures under oath, he will be investigated for criminal responsibility.
(2) the provisions of the French law
Article 434 of the French Criminal Code stipulates that "anyone who gives false testimony to any court or any judicial police entrusted by the court to execute a case under oath shall be sentenced to five years' imprisonment and a fine of 500,000 francs; However, if the perjury voluntarily revokes his certificate before the pre-trial court or the judgment court decides to terminate the trial procedure, he shall not be punished. "Article 287 of the French Civil Procedure Law stipulates:" If a party denies that it is his own handwriting, or declares that he does not know whose handwriting it is, the judge may check and verify the disputed handwriting, unless a judgment can be made even without considering the handwriting. "
Thirdly, legislative suggestions on perjury in China.
(1) Perfecting the punishment of perjury in Chinese laws.
1. Improve criminal responsibility. The author thinks that the crime of perjury in civil procedure and the crime of perjury in criminal procedure both damage the authority of law. Sometimes, the harm of perjury in civil proceedings is even greater than that in criminal proceedings. Therefore, it is very necessary to investigate the criminal responsibility of perjury in civil litigation. Only in this way can we increase the cost of perjury and effectively curb perjury. The specific methods are as follows: First, expand the scope of application of perjury in Article 305 of the Criminal Law to three major lawsuits. Second, in Article 307 of the Criminal Law, the provision that perjury is a crime is added.
2. Improve civil liability. Improve the provisions of Article 102 of the Civil Procedure Law. (1) Change the penalty of perjury from "may" to "should". (2) Detailed regulations. First of all, stipulate the criteria for determining the severity of the circumstances. The author suggests that the vicious degree of behavior and whether it is enough to influence the judge's judgment should be the standard. Second, stipulate the standards and ranges of fines and detention. The author suggests that detention should be used only in particularly serious cases. The amount of fines should be increased. Third, the crime of perjury was recognized and punished by the court of first instance. Fourth, the procedure of examining perjury can be initiated by the parties or the court of first instance. Fifth, in the trial of perjury, if the trial of the original case is postponed, the time limit for postponing the trial is not included in the trial limit.
3. Increase the punishment of administrative responsibility. There is no administrative responsibility for perjury in China's civil litigation. The author believes that in order to intensify the crackdown on perjury in civil proceedings, the administrative responsibility of perjury should be aggravated. For a witness who perjures himself in a civil lawsuit, the judicial organ may suggest that the unit to which he belongs give him administrative sanctions such as warning, demerit recording, gross demerit recording, demotion, dismissal and expulsion. The judicial organ shall notify the judicial administrative department to impose a fine, revoke the license and other administrative penalties on the appraisers who commit perjury.
(2) Improve the system of witnesses appearing in court to testify in China.
Although the law of our country recognizes that it is normal for witnesses to testify in court, written testimony is an exception. However, its provisions are still insufficient, and the author suggests the following improvements:
1. Provisions on the inability of witnesses to testify in court. First of all, the "practical difficulties" that have been stipulated in our laws are specified in detail. Those over 80 years old must have a certificate issued by the hospital. Specific restrictions should be imposed on special posts. Secondly, increase the circumstances in which you can not testify in court. The author suggests adding the following points: (1) There is no dispute about written testimony between the prosecution and the defense; (2) Although one party's testimony is controversial, other evidence can clearly prove it; (3) multiple witnesses prove the same fact, and choose a representative witness to testify in court. Other witnesses are not allowed to appear in court.
2. Establish the privileges of witnesses. This system mainly includes: (1) the privilege of refusing self-incrimination. If a witness answers a question, the result will prove that he is guilty, and he has the right to refuse to answer this question. At this point, the witness cannot be forced to testify. (2) the privilege of close relatives. That is, they should not force their close relatives to prove their guilt, which is also in line with the requirements of morality and ethics. (3) Professional secret privilege. Such as lawyers, doctors, civil servants, etc. , have the right to refuse to testify based on professional secrets.
3. stipulate that witnesses refuse to testify in court without justifiable reasons or permission from the court. The author thinks that at this time, we can refer to the experience of foreign laws and take measures to force witnesses to testify in court. First, a subpoena. Change the current practice of notifying witnesses to appear in court, and serve subpoenas to witnesses three days before the court session. If a witness cannot refuse to appear in court without reason after receiving a court summons, the court will force him to appear in court by summons. Second, fines and detention. According to the specific circumstances, the witness may be fined or detained, and the amount and number of days may refer to the above-mentioned provisions on perjury.
(C) the improvement of other systems
1. Establish a witness oath system. There is a binding system in our country's law, which requires witnesses to sign the letter of guarantee, and its function is to remind witnesses of the legal consequences of false statements. But in addition, the witness oath system pays more attention to awakening the conscience of witnesses. In addition, the witness oath system has been adopted by most countries. Therefore, it is necessary to establish witness oath system in China.
2. Establish a witness personal safety guarantee system. Witnesses who testify in court are often threatened, attacked and retaliated by the parties. Although the Civil Procedure Law stipulates the sanction measures to take revenge on witnesses and the Criminal Law also stipulates the crime of taking revenge on witnesses, the applicable conditions are relatively strict, and the personal protection of witnesses is still insufficient. The author suggests strengthening the protection system for the personal safety of witnesses, and bringing the close relatives of witnesses into the scope of protection.
3. Establish a witness compensation system. The author believes that since it is a legal obligation for witnesses to testify in court, it has nothing to do with the parties. Therefore, the loss of the witness should not be compensated by the parties, and it is also suspected of bribing the witness. The loss of witnesses should be compensated by the court, and the state should establish a special witness compensation fund in its financial expenditure to ensure the economic interests of witnesses.
4. Intensify legal publicity and raise the legal awareness of the whole people. When the legal awareness of the whole people is improved, citizens will know the harm of perjury and understand the importance of testifying in court. Therefore, the improvement of the legal literacy of the whole people will greatly promote the ideological elimination of perjury.