The difficulty in the trial of this case lies in what kind of examination standard the court should adopt to determine whether the lawsuit filed by the parties belongs to false litigation. At the same time, the court found the existence of false litigation, whether to grant the application for withdrawing the lawsuit, and how to guard against false litigation. First, litigants with related relationship (actual control relationship) fabricated or forged evidence materials, filed a civil lawsuit, and there was no substantive confrontation. If the court voluntarily reached a mediation agreement or gave up the defense path, it was determined that the interests of the third party were infringed, it should be considered as false litigation. (a) the existence of the relationship between the parties in this case is the premise of false litigation in this case. The so-called related relationship refers to the relationship between the controlling shareholder, actual controller, directors, supervisors and senior managers of the company and the enterprises directly or indirectly controlled by them, as well as the actual control relationship that may lead to the transfer of the company's interests. In this case, an auto repair company is a limited company jointly invested and operated by Liu and the third person Sheng Moujun on June, 2005 12. According to the industrial and commercial registration files, the legal representatives of a logistics company and an auto repair company are Liu, and the actual controller is Liu, who actually operates. Therefore, the fact that the legal representatives of the two companies in this case are Liu proves the relationship between the auto repair company and the logistics company, which directly leads to the legal representative Liu transferring the property of the auto repair company to the name of the logistics company through litigation. (2) The fact that the parties fabricated evidence materials is the basis for determining false litigation in this case. In false litigation, the parties often fabricate evidence out of thin air to prove the facts to be proved, so as to determine the rights and obligations of both parties and realize the original intention of litigation. In this case, Liu colluded with his sister Liu to fabricate the fact that there was a lease contract between a logistics company and an auto repair company, and took the real estate ownership certificate (No.655, Bencheng Road) unrelated to the leased site under the lease contract as evidence instead of the real estate ownership certificate (No.426, Liuyuan Road) under the lease contract, and filed a lawsuit on the grounds of "lease contract dispute". Its purpose is to prove that there is a lease relationship between the auto repair company and the logistics company, and as a basis for asking the auto repair company to pay rent and other expenses. During the retrial, Liu Huanming did say that the property title certificate of No.655 Road provided by a logistics company in the original trial was not the property title certificate of the leased house referred to in the original trial. The reason is that the plot No.426, Liuyuan Road, Shanghai was bought by a logistics company, and the production certificate has never been issued, so it was replaced with the production certificate of No.655, Marco Road, Shanghai, an adjacent plot, to prove that a logistics company has the right to the house and site leased under the Lease Contract in litigation. The retrial takes this evidence as an important basis to identify false litigation. (3) The lack of substantive confrontation between the parties in the litigation is the key to false litigation's determination of this case. No dispute, no lawsuit. Once the litigation procedure is started, there will be the plaintiff's attack and the defendant's defense, that is, the defendant's defense against the original application will be highlighted during the trial of the case, such as limitation of action, quality defects, performance defects, debt offset, confusion and so on. , so as to reduce, reduce and exempt from their responsibilities. In the original trial of this case, the legal representative Liu entrusted lawyers to represent the original company and the defendant respectively. In the course of the original trial, an auto repair company did not cross-examine the important evidence (real estate license) of a logistics company (it was actually found that the evidence was false), but only tried to cover up the behind-the-scenes falsehood by deducting some debts. Later, the two sides reached a mediation agreement and finally fulfilled the contents of the mediation agreement. Behind the defendant's failure to actively exercise the right of defense is a breakthrough in the substantive confrontation of litigation. (4) Malicious conclusion of a mediation agreement that infringes on the interests of a third party is the core of false litigation's determination in this case. False litigation often takes advantage of the dominant roles of the original defendant and the defendant, fictionalizes disputes between the two parties, and infringes on an anonymous third party by means of litigation mediation. In the original trial of this case, an auto repair company had no objection to the litigation request of a logistics company to pay the relevant rent, utilities and liquidated damages, and reached a mediation agreement on this basis. The content of the agreement did not substantially defend the plaintiff's claim. According to the joint venture agreement and the investment ratio between the two parties, Liu, Sheng Moujun each hold 50% equity of an auto repair company. Wei Liu, the legal representative, quickly transferred the assets of an auto repair company to the name of a logistics company, which violated the company agreement and the principle of good faith, and transferred the assets of an auto repair company to the name of a logistics company through reconciliation, which constituted damage to the interests of third-party shareholders. Two, for false litigation, the court should not allow the parties to apply for withdrawal. In recent years, in judicial practice, the "false litigation" that the parties fabricated facts and forged evidence has been found repeatedly. Judicial authority has been challenged and its credibility has been seriously damaged. Article 1 12 of the Civil Procedure Law regulates false litigation's behavior, but it does not stipulate whether the parties can apply for withdrawing the lawsuit against false litigation. In the trial practice, there are two views on this, which have not yet been unified. They respected the autonomy of the parties and agreed to withdraw the lawsuit. Or defend judicial authority and refuse to allow it. In our hospital's view, false litigation's application for withdrawing the lawsuit is essentially to avoid judicial punishment. In order to stop this attempt to seek abnormal interests through judicial channels, we should strictly enforce the law, that is, we are not allowed to apply for withdrawal of the lawsuit. In this case, the judge in charge decisively rejected the application for withdrawal of a logistics company after discovering the existence of false litigation. Later, the false mediation in the original trial was revoked after fully comparing the evidence involved. At the same time, in order to safeguard legal dignity, a logistics company in false litigation and its legal representative were fined RMB 50,000 and RMB 5,000 respectively. Third, we should improve our ability to guard against false litigation by standardizing our awareness, building mechanisms and increasing sanctions. (1) Strengthen the normative consciousness of litigation mediation. Litigation mediation is a serious judicial act. The presiding judge should not simply ignore the examination of the formal and substantive elements of the mediation agreement in order to pursue the withdrawal rate, especially for cases where both parties request mediation and there is no dispute. The presiding judge should be alert and standardize the mediation procedure according to laws and regulations to make the litigation mediation more in line with the requirements of legal norms. (2) Improve the preventive mechanism of false litigation 1. Discovery mechanism —— false litigation often has different appearance characteristics from normal cases in the trial process: the relationship between the defendant and the defendant is generally familiar and close; The agent in the original case and the defendant generally know each other and are friends; The performance of the parties in court is generally tacit cooperation between the two parties. In order to obtain the court's conciliation statement as soon as possible and do everything possible to speed up the proceedings, there was no scene of fierce confrontation. To this end: (1) Strengthen supervision. Make full use of the trial management system to query the litigation history records of the parties to the case, enhance the pertinence of the trial, and avoid the occurrence of the false litigation case; (2) Strengthen linkage. In order to prevent the parties from using the right of action and avoid the waste of judicial resources, communication between courts should be strengthened. For those suspected of false litigation, it is necessary to exchange information on the court LAN in time and build a fence against false litigation. (3) Strengthen evaluation. Discuss and comment on the typical cases that have happened, so that the judge can understand the manifestations and characteristics of false litigation, thus playing a warning role. 2. Screening mechanism-In handling cases, the judge in charge should not only guide, encourage and facilitate the parties to resolve disputes through consultation, but also be highly alert to the fact that the parties have reached a mediation agreement on their own initiative: (1) Intensify the review of basic legal relations and facts, patiently listen to the defense claims of suspicious cases, analyze whether the parties have fictional facts, and focus on reviewing the sources of evidence. By means of evidence comparison and field investigation. (two) review the parties' expression of will, strengthen the obligation of the parties to appear in court, and improve the ability to identify the true expression of the parties; (3) Strictly allocate the burden of proof, and use the strict distribution of burden of proof to raise the threshold for the actor to implement false litigation, so that litigation mediation can meet the requirements of judicial justice. (3) Strengthen the sanctions against false litigation, because false litigation is an act that seriously damages the judicial credibility and brings unpredictable risks to the judge profession. Therefore, judges should improve their understanding of false litigation. When they find false litigation suspected in the course of performing their duties, they should take the initiative to exercise the judge's interpretation right. Once the party concerned is found to have false litigation's behavior: (1) Carefully decide whether to allow him to withdraw the lawsuit; (2) immediately instruct the interested parties to participate in the ongoing litigation of the original and the defendant together with the third party requesting independence; (3) Civil sanctions such as warning, order to make a statement of repentance, fine or even detention against the perpetrator of false litigation. To sum up, the judgment in this case is a correct understanding and specific application of Article 1 12 of the Civil Procedure Law, and it is a template for regulating the "false litigation", which is conducive to promoting the unification of legal application. At the same time, standardized judicial trials and sanctions are undoubtedly of great warning significance to those who attempt to seek benefits through judicial channels. [1] This article stipulates that "if the parties collude maliciously and attempt to infringe upon the legitimate rights and interests of others through litigation or mediation, the people's court shall reject their request and impose fines and detention according to the seriousness of the case; If it constitutes a crime, criminal responsibility shall be investigated according to law. "
Legal basis:
Article 144 of the Civil Procedure Law of People's Republic of China (PRC) * * * After being summoned, if the defendant refuses to appear in court without justifiable reasons, or withdraws from court without the permission of the court, he may make a judgment by default. Before the verdict is pronounced in Article 145 of the Civil Procedure Law of People's Republic of China (PRC), if the plaintiff applies for withdrawing the lawsuit, the people's court shall decide whether to grant it or not. The people's court has ruled that the withdrawal of the lawsuit is not allowed, and if the plaintiff refuses to appear in court without justifiable reasons after being summoned, the judgment may be made by default. Article 143 of the Civil Procedure Law of People's Republic of China (PRC) * * * If the plaintiff refuses to appear in court without justifiable reasons after being summoned by summons, or withdraws from court without the permission of the court, it may be treated as withdrawing the lawsuit; If the defendant counterclaims, he may make a judgment by default.