In recent years, in the civil cases tried by the court, the parties abused the
In recent years, in the civil cases tried by the court, the parties abused their litigation rights and used the legal form of civil judgments of the people's courts to seek illegal interests, showing a trend of frequent dishonest lawsuits. These acts not only infringe on the legitimate rights and interests of others, but also seriously damage the judicial authority, and their harm cannot be ignored.
Good faith litigation is an important content of building a good faith society. Article 13 of China's Civil Procedure Law clearly stipulates that "civil litigation should follow the principle of good faith", and sets up provisions prohibiting false litigation and evading execution.
In order to further promote the integrity of litigation, the judicial interpretation of the Civil Procedure Law specifically refines the provisions on severe sanctions for acts that violate the principle of good faith and false litigation. People's courts should take the initiative to play their judicial functions, actively implement relevant regulations, protect and guide honest litigation, create an honest and healthy litigation environment, severely punish litigation dishonesty, and build a social credit system by means of the rule of law. This paper analyzes the manifestations and causes of common dishonest litigation in civil litigation, and puts forward preventive countermeasures and suggestions in combination with trial practice.
First, the main performance of dishonest litigation behavior
(A) abuse of the right to appeal
1, abuse of litigation right. In the stage of prosecution, some parties abuse the right of prosecution given by law based on some improper intentions or unreasonable demands, and maliciously file a lawsuit without factual and legal basis. There are two specific forms: one is to deliberately fabricate some non-existent facts and reasons to file a lawsuit. If there is no loan relationship between the original defendant and the plaintiff, in order to obtain improper benefits, he sued the court with fabricated IOUs to demand the defendant to return the arrears. Second, although there are some facts, the plaintiff's claim obviously has no legal basis, such as recovering the arrears caused by gambling.
2. Abuse of property preservation. The purpose of property preservation system is to prevent the parties from intentionally transferring property to avoid the responsibility of payment, so as to ensure the realization of successful judgment. However, in practice, many parties abuse the application for property preservation: First, apply for property preservation at will. After the prosecution, whether the other party has the ability to perform or evade execution, apply for property preservation; Second, the application for property preservation is improper. Some plaintiffs apply for property preservation knowing that the basis of prosecution is obviously insufficient, knowing that the possibility of obtaining court support is very small, in order to freeze the other party's business account or seal up real estate and production equipment through property preservation, damage the other party's normal production, operation and business reputation, and put pressure on the other party.
3. raise an objection to jurisdiction for the purpose of delaying litigation. Some defendants, knowing that there is no sufficient basis, still raise objections to jurisdiction to delay the proceedings. After the objection to jurisdiction was rejected, some people continued to appeal, which seriously delayed the lawsuit.
4. Appeal for delaying performance. In practice, some parties abuse the right of action to achieve the purpose of delaying the performance of the obligations determined in the judgment documents, and appeal without justifiable reasons. Specific performance: First, after filing an appeal, the court deliberately failed to pay legal fees in advance within the statutory time limit, and decided to automatically dismiss the prosecution after being discovered by the court of second instance, which delayed the effective time of the judgment document. Second, knowing that the appeal request will not be supported by the court, the case is appealed based on some improper or dishonest intention, which makes the case enter the second instance procedure and seriously delays the timely realization of one party's rights.
5. Malicious evasion of service of legal documents. At present, the problem of difficult delivery of legal documents is prominent, and the proportion of announcement delivery is high. Part of the reasons for the difficulty in delivery are the transfer of the defendant in the unit, the change of household registration, and going out to work. Moreover, a considerable part of the parties deliberately evade normal legal procedures, which involves two situations: First, the defendant deliberately leaves the household registration and evades court proceedings; Second, in the case where the enterprise is the defendant, although the normal production and operation of the enterprise is difficult, it has not been liquidated and cancelled according to law, and the qualification of the subject of industrial and commercial registration still exists, and the legal representative or shareholder of the enterprise maliciously evades and refuses to sign legal documents.
(2) making false statements against objective facts.
1. Deliberately fabricated facts and published statements inconsistent with the real situation. This situation is not uncommon in civil litigation. In many cases, especially loan disputes, because the two parties deviated from the objective facts when forming evidence materials, the fact determination and judgment made by the court based on the evidence materials provided by the parties often do not conform to the objective truth. The most typical example is that interest is included in the principal to fill in IOUs, especially some integer IOUs. This fact is extremely difficult to find out if there is no other evidence to support it.
2. Make inconsistent statements about the same fact. In a few cases, the parties or their agents make inconsistent statements about the same fact and correct them after discovering that they have a wrong grasp of the facts, which is mostly a sign of dishonesty. For example, in a civil loan dispute case, the plaintiff claimed a loan of 654.38+10,000 yuan from the defendant. When stating the process of borrowing, the plaintiff first stated that all the money was paid in one lump sum on the day of borrowing, and then stated that the defendant was required to issue an IOU of 654.38+10,000 yuan after borrowing many times in a period of time, before issuing an IOU. The plaintiff's statement of the key facts of the case is inconsistent, and the judge must pay special attention to the judgment of the facts.
3. Deliberately avoid giving answers to relevant facts that should be known when the other party cannot provide sufficient evidence. For example, in the case of a contract dispute between a machinery company of the plaintiff and a pump company of the defendant, the plaintiff claimed that the processed products had been delivered to the subsidiary of the defendant. In order to prove his claim, the plaintiff submitted a signed delivery note, but the defendant could not provide enough evidence to prove whether the consignee was the defendant's staff. The defendant should know this fact. Although repeatedly questioned by the court, the defendant did not give a positive or negative answer, but made an "unclear" vague answer, showing a dishonest attitude.
(3) Malicious testimony
Dishonest evidence and false statements often accompany each other, mainly including the following situations:
1. Forge or alter evidence and intentionally provide false evidence materials. This kind of false evidence is mainly documentary evidence and witness testimony. If the circumstances are serious because of providing false certificates, it may be suspected of a criminal offence. This kind of behavior is not much in litigation, but some parties and lawyers are still desperate. This kind of situation is common in personal injury compensation disputes. Some parties deliberately provide false salary certificates for the unit in order to pay more for lost time and nursing expenses.
2. One party holds evidence favorable to the other party and refuses to provide it without justifiable reasons. Generally speaking, in civil litigation, "who advocates who gives evidence" is adopted, but the party who advocates sometimes cannot provide corresponding evidence for objective reasons. For example, in a dispute over a sales contract, the plaintiff claimed that he had signed a sales contract with the defendant and had fulfilled the delivery obligation, but the original contract held by the plaintiff was lost, so he could only submit a copy and a delivery note as evidence, while the defendant not only denied receiving the goods, but even denied that there was a business relationship between the two parties. According to the contents of the copy of the contract submitted by the plaintiff and general business practices, the contract was made in duplicate, with each party holding one copy, but the defendant refused to recognize the business relationship between the two parties.
3. Using evidence flaws in cross-examination, deliberately misinterpreting the "three natures" of evidence materials or the content of proof. During the trial, both parties have the right to express cross-examination opinions on the evidence submitted by the other party, but the cross-examination should respect the facts and shall not be deliberately misinterpreted for various reasons. For example, in a case of a sales contract dispute, after mediation, the defendant wrote an iou and handed it to the plaintiff, clarifying that the total amount owed was 50,000 yuan, and then the defendant paid 45,000 yuan. No new note was typed, and the original IOU was directly followed by "Huan owed 45,000 yuan". Now the plaintiff claims to "repay the (sea) debt of 45,000 yuan" and sue the defendant for the remaining payment of 45,000 yuan. Combined with the bank flow of both parties, it can be proved that the defendant actually owes only 5000 yuan. It can be seen that the defendant obviously took advantage of the confusion in the statement and deliberately misinterpreted the case.
(4) Manufacturing false litigation
False litigation is an extreme manifestation of dishonest litigation, which means that litigants collude maliciously and file a civil lawsuit by fabricating legal relations and case facts. Such cases are usually difficult to investigate. There are many cases in false litigation's private lending disputes, mainly in two types of cases: first, the defendant did not appear in court to defend, only the plaintiff's statement and evidence; Second, although the defendant appeared in court, the original and the defendant cooperated tacitly, and most of them took the initiative to ask for mediation. The two sides lack basic litigation confrontation.
(e) Malicious mediation
The mediation rate of civil cases is high, but the phenomenon of dishonest mediation is also prominent. Some defendants deliberately set a longer performance period in the mediation agreement, but actually did not have the sincerity to perform, but as an expedient measure to delay the performance of debts, they still did not take the initiative to perform after the agreed performance period expired. In practice, the number and proportion of civil cases settled by mediation entering the execution procedure.
(6) evading execution
The breach of trust in the execution stage is mainly to avoid execution, use legal loopholes or artificially set obstacles, resulting in the illusion that the person subjected to execution has no property to execute, thus avoiding fulfilling the obligations specified in the effective legal documents. The main manifestations are as follows: first, the subject of execution is hidden, and the executed person goes out to escape, and does not return or disappear for a long time; The second is to conceal the execution property, register the property ownership in the name of others, and turn the company's profits into personal property without recording the fixed assets; Third, maliciously reduce the ability to perform, such as using divorce or marital property agreement to attribute property to one party or children, transferring property at a free or obviously unreasonable low price, giving up creditor's rights or delaying the recovery of due creditor's rights; Fourth, abuse of litigation procedures, such as abuse of settlement agreement to maliciously delay and transfer property; Fifth, false bankruptcy is really to evade debt, evade capital contribution, make false capital contribution or make false capital contribution, and transfer property through corporate restructuring. For a long time, debtors' failure to repay debts, keep promises, evade debts, evade and resist execution has become a social chronic disease. According to statistics, after the judgment documents of civil cases came into effect, more than 70% debtors did not consciously perform their obligations determined by legal documents, which seriously damaged the legitimate rights and interests of obligees and undermined the social fashion of "honesty and trustworthiness".
Second, the analysis of the causes of dishonesty litigation
(A) the level of participants in the proceedings
First, the parties lack the sense of honesty. The lack of honesty is often accompanied by a weak sense of the legal system. In the process of participating in the litigation, some parties, in order to pursue improper interests or evade legal responsibilities, have clearly committed an act but denied it, making it difficult for the other party to prove it, or knowing that it cannot be established for some reason, they still use the procedural rights endowed by law, such as the right to apply for jurisdiction over dissent and the right to appeal, to achieve their illegitimate purposes.
Second, the concept of lawyer's agency is improper. At present, the ranks of lawyers and legal workers are numerous and varied, and the quality of a few lawyers and legal workers is mixed. In the process of representing cases, they put interests first, blindly pursue unreasonable or even illegal litigation interests, give up their due professional ethics, and even go beyond the legal boundaries to help the parties implement dishonest litigation.
Third, there are loopholes in enterprise business operations. Some enterprises have loopholes in business behavior or management, and their risk prevention ability is weak, which is easy to give dishonest behavior an opportunity. If the seller delivers the goods to the door, if the buyer denies it afterwards, it will be difficult for the seller to prove when claiming the payment. If the buyer is an individual, after purchasing and receiving the goods, the seller is required to issue VAT invoices for others, which leads to unclear accounts and chaotic trading relations.
Judicial level
First, the judge's ability to identify and deal with dishonest litigation is not strong. Some judges lack sufficient ability to identify the dishonest litigation behavior of the parties. Even if some litigation acts are found to be suspected of dishonesty, there is a lack of control and guidance on the litigation process and effective response to dishonesty, especially the unreasonable use of the right of interpretation to guide and control the litigation process, which leads to the passive state of the trial procedure.
Second, the rules of evidence are applied mechanically, ignoring the overall effect of the case. In some cases, the parties have obvious dishonest litigation behavior, and some judges lack sufficient consideration for this behavior in the process of fact finding, and mechanically apply the rules of evidence. Although the judgment is in compliance with the law, the judgment result is often unreasonable from the perspective of the overall effect of the case or the public.
Third, there is a lack of strict disciplinary mechanism. In the course of trial, it is difficult for the judge to take effective measures and severe disciplinary measures even if he knows that the parties have abused their litigation rights and made false statements to implement dishonest proceedings.
(3) Social level
First, the social credit environment is poor. At present, the phenomenon of lack of social credit is serious as a whole, and even presents a certain degree of social credit crisis, which has caused the following consequences: First, economic disputes caused by credit crisis continue to flood into the litigation field, resulting in a rapid increase in the number of case disputes; Second, there is a lack of awareness of risk prevention in daily transactions and the trading procedures are not perfect. Once in the proceedings, the loopholes in civil behavior are easily exploited by dishonest parties.
Second, the supervision of the administrative department is weak. At present, there is a lack of education and supervision on the professional ethics and practice discipline of lawyers and legal workers. Some agents and defenders are maliciously prosecuted for violating professional ethics, and the relevant administrative departments lack effective means to restrain and punish them. In addition, the tax authorities lack supervision over the dishonest behavior of civil subjects, and lack effective supervision and management over illegal activities such as falsely issuing VAT invoices and issuing invoices on their behalf.
Third, the social credit information system is not perfect. Some parties have fraud, default on accounts, malicious tax evasion, poor product quality and other behaviors in civil transactions, and dishonesty in civil activities is often reflected in litigation through specific cases. At the same time, the current social credit information system is not perfect, an effective information sharing mechanism has not yet been formed, and the credit rating of enterprises is relatively backward, which leads to the dishonest information of some civil subjects in their daily business activities that cannot be mastered by judges and relevant functional departments.
Three. Countermeasures and suggestions on standardizing dishonest litigation
(A) the concept level: firmly establish a sense of integrity
1. The parties should establish a correct concept of litigation. Building an honest society, especially forming a good atmosphere of honest litigation, requires every market subject, whether in civil transactions or litigation activities, to abide by the credit ethics under the conditions of market economy, uphold the concept of honest and trustworthy civil transactions, establish a sense of honest litigation, and be trustworthy and trustworthy.
2. Lawyers should establish a correct concept of agency. As an important link in the construction of good faith litigation mechanism, lawyers should play an active role in promoting good faith litigation and establish a correct agency concept. First, exercise the power of agency according to law and safeguard the rights and interests of the parties according to law. Proof and statement should be based on facts, and we should not ignore the most basic professional ethics or even handle cases illegally in order to win the case unilaterally. Second, adhere to independence and give full play to the role of lawyers in the construction of good faith litigation. Lawyers should be good at communicating and guiding the false statements and false evidence of the parties in the process of representing cases and contacting the parties, so as to urge the parties to conduct litigation consciously and honestly.
3. The judge should improve the consciousness of guiding the parties in good faith litigation. The existence of a large number of dishonest lawsuits puts forward higher requirements for judges' judicial ability and judicial level. Judges should be good at identifying and responding to all kinds of dishonest litigation, and actively guide and promote the parties to implement honest litigation. Therefore, it is necessary to strengthen training and communication, improve judicial personnel's understanding of civil transaction practice and good faith litigation, and strengthen the exchange of trial experience. For those obviously dishonest litigation cases, we should take active measures within the framework of the law, strengthen the response, standardize the procedures, and protect the legitimate rights and interests of trustworthy parties according to law in substantive handling.
(b) At the judicial level: strengthening censorship measures.
First, distribute the burden of proof reasonably. In the trial of a case, the judge can determine the burden of proof according to the specific circumstances of the case, the principle of fairness and good faith and the ability of the parties to provide evidence, in addition to following the general rule of "who advocates who gives evidence". For those parties whose litigation behavior is obviously dishonest, higher requirements are put forward for their proof behavior. In addition, the judge can take the initiative to obtain relevant evidence according to the specific circumstances of the case, safeguard the legitimate rights and interests of the trustworthy party, and restore the facts of the case to the maximum extent.
Second, we must strictly examine the facts of the case. For cases that may be suspected of false litigation, the facts of the case should be strictly examined. First, adhere to the principle of direct speech. If the parties to the case do not appear in court or the agent fails to make a truthful statement, the relevant parties are required to attend the court hearing, and key witnesses appear in court to state their testimony, so as to better ascertain the facts of the case. The second is to strengthen the review of the facts of mediation cases. We should be cautious about the loan cases voluntarily mediated by both parties, strengthen the examination of the facts of the case, especially the specific process of payment and the financial situation of creditors, and prevent false mediation.
Third, we should correctly exercise the power of interpretation. Interpreting litigation is one of the judicial duties of judges. Interpretation usually includes explaining legal provisions, informing litigation risks and related matters. Strengthening the interpretation of litigation is also helpful to guide the parties and their agents to participate in litigation activities in good faith. In the course of the trial, if the judge has reasonable doubts about the authenticity of the statements and proofs of the participants in the proceedings, he can strengthen the inquiry of some details by means of special emphasis, and explain the legal provisions to inform the participants in the proceedings of the possible legal consequences of fraud. If one party's malicious lawsuit leads to litigation delay and causes losses or other consequences to the other party, the judge can inform the injured party to file an infringement lawsuit by exercising the right of interpretation.
Fourth, make full use of the principle of good faith. In addition to the rational use of free evaluation of evidence, judges should also comprehensively consider the integrity of the parties in civil transactions and litigation procedures, and strengthen the application of the principle of good faith in the determination of case facts, so as to protect the rules of good faith transactions and litigation order and protect the legitimate interests of honest and trustworthy parties according to law. If dishonest acts such as false certificates are found, compulsory measures such as fines and detention can be taken against the parties involved in dishonest acts according to the specific circumstances and consequences. Suspected of committing a crime, the relevant clues will be transferred to the public security organs for legal treatment.
(3) Social level: strengthening the construction of credit mechanism.
1. Strengthen legal publicity and education, and create a good atmosphere for good faith litigation in the whole society. Relying on various channels, such as news media, court public open days, preparation of publicity materials, etc. To publicize the concept of good faith litigation to the public, strengthen the professional ethics education of lawyers and legal workers, and create a good atmosphere of "praising honesty and punishing dishonesty" in the whole society.
2. Intensify the crackdown and establish a joint working mechanism against false litigation. In view of the present situation that false litigation is harmful, numerous and difficult to investigate and deal with, the public security, procuratorate, court and judicial administrative departments should work together, strengthen communication and coordination, establish a linkage mechanism to crack down on false litigation, and prevent and investigate false litigation. If the court finds that the case may be false litigation and is suspected of a criminal offence during the trial, it shall promptly transfer the relevant clues to the public security organ for investigation, and the public security organ shall transfer the investigation to the procuratorial organ for examination and prosecution; For lawyers and legal workers who participate in or instruct the parties to implement the false litigation, the court can promptly notify the judicial administrative organs in the form of judicial suggestions to urge accountability.
3. Market players should raise awareness of prevention and avoid management loopholes and potential risks. Companies, enterprises and other market players should raise their awareness of risk prevention and eliminate management loopholes in time. In order to standardize the internal governance structure of the company, major resolutions made by the shareholders' meeting and the board of directors, equity transfer, disclosure of accounting books and financial accounting reports, etc. It shall be conducted in accordance with laws and regulations and the articles of association. It is necessary to standardize financial management, improve the financial system, and clarify the records of property entry and exit. In order to standardize commercial behavior, foreign commercial transactions should be standardized, with special attention to the rigor and standardization of concluding contracts.
4. Establish an information sharing mechanism and establish a joint sanction system for dishonesty. Explore the construction of information sharing platform, establish a scientific evaluation system of litigation integrity information, jointly crack down on dishonesty and promote the construction of litigation integrity system.
Dishonest litigation and false statements not only disturb the court order, interfere with judicial trial, damage judicial authority, but also damage the legitimate rights and interests of the parties. Dishonest lawsuits and false statements are also called "liars" in court. The perpetrator illegally occupies other people's property by using the court's civil judgment, which has constituted the crime of embezzlement and suspected fraud in criminal crimes, and the people's court should impose sanctions and penalties according to the situation; If a lawsuit is filed by fabricating a false civil relationship, which constitutes the crime of fraud in false litigation, the crime of infringing on the lawful property of others and the crime of illegal possession, the people's court shall hand it over to the public security and procuratorial organs for investigation and handling, safeguard judicial authority and protect the legality of people's property.
The people's court can guarantee the orderly and smooth progress of social economy only by constantly increasing the intensity of cracking down on false statements and dishonest litigation, creating an environment for honest litigation and punishing dishonest litigation.
Forms of dishonest litigation and false statements;
In accordance with the relevant provisions of the Civil Procedure Law and the relevant laws and regulations formulated by the people's courts at all levels to avoid dishonest litigation, combined with the trial situation of civil litigation, any of the following circumstances shall be deemed as false statements and dishonest litigation:
1, forging or altering evidence to prove its claim;
2. After the facts claimed by the other party have fulfilled the burden of proof, they still fabricate legal relations and corresponding facts to defend;
3, the statement of the facts of the case is inconsistent, there are major contradictions and can not make a reasonable explanation;
4. When claiming one's rights, concealing that the other party has fulfilled part or all of its obligations and can't make a reasonable explanation;
5. Avoidance of stating the facts of one's participation or failure to give a reasonable explanation for the facts that one knows and should know, such as "I don't know", "I don't know" and "I don't remember";
6. Refusing to express opinions on the authenticity of the documentary evidence signed and sealed by me, and refusing to express opinions after the judicial personnel explain the legal consequences;
7, there are other evidence enough to confirm the authenticity of documentary evidence still apply for identification to hinder litigation;
8. Apply to the court for investigation and collection of evidence that has been mastered or should be mastered, and can't make a reasonable explanation;
9. Others obstruct civil litigation activities through statements, applications, etc. and cannot make reasonable explanations.
The supervision of false statements generally includes the following aspects:
1. Increase the burden of proof on the facts of the case, mainly including: refusing to accept the relevant statements of the actor, accepting the statements of the opposing litigant participants, accepting the statements that the actor is most unfavorable to himself, reducing the probative force of the evidence cited by the actor, improving the standard of proof for the actor to prove a certain fact, refusing to allow the actor to obtain relevant evidence, postponing proof or applying for identification, etc.
2. Bear corresponding civil liabilities, including liability for compensation, mainly including: corresponding litigation costs, announcement fees, appraisal fees and other litigation costs that are claimed to be increased by the other party due to the false statements of the actor;
3. Facing the judicial sanctions adopted by the people's court, mainly including: summoning, admonishing, fines, detention, etc.
4. If the circumstances are serious and suspected of committing a crime, the people's court shall transfer the relevant criminal clues to the investigation department and investigate the criminal responsibility of the responsible person;
5. The people's court may put forward judicial suggestions to the departments and units responsible for managing the participants in the false statement litigation, and make rectification and feedback within a time limit.
Penalties for false statements and dishonest litigation;
According to article11of the Civil Procedure Law,
Article11of the Civil Procedure Law stipulates that if a litigant 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, which hinders the people's court from hearing a case;
(2) using violence, threats or bribes to prevent witnesses from testifying or instigating, bribing or coercing others to commit perjury;
(3) Hiding, transferring, selling off or destroying the property that has been sealed up or detained, or transferring the property that has been counted and ordered to be kept;
(4) Insulting, slandering, framing, beating or retaliating against judicial personnel, participants in litigation, witnesses, translators, expert witnesses, inspectors and assisting executors;
(5) Obstructing judicial personnel from performing their duties by violence, threat or other means;
(6) Refusing to perform a legally effective judgment or ruling of the people's court.
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 a crime is constituted, criminal responsibility shall be investigated according to law.