Lawyer Li **: Executive Director of Guangqiang Law Firm;Director of the Center for Economic Defense;Lead defense counsel in pyramid scheme cases.
Wu Dan: Researcher of the Economic Crime Defense and Research Center of Guangqiang Law Firm.
How to fight for innocence after being charged with false litigation by suing for debt collection?
Keywords: false lawsuits, falsification of evidence, fabrication of facts, falsification and exaggeration, innocence.
With the continuous enhancement of the public's concept of the rule of law, in the face of economic disputes such as private lending, divorce and property separation, and guarantee recourse, the parties are more and more daring to file civil lawsuits and protect their legitimate rights and interests through legal channels.
In a sense, a lawsuit is a case of evidence. In terms of the standard of proof, criminal proceedings are the most stringent and require "beyond all reasonable doubt" (equivalent to 100% no doubt), while civil proceedings generally adopt a high standard of probability (equivalent to 80% to 90% no doubt). It is this 10% and 20% space, coupled with the complexity of civil documents, that leads to the motivation of civil litigation participants to falsify and tamper with evidence in order to obtain favorable adjudication results.
The market economy is an economy of creditworthiness, and creditworthiness must be guaranteed by the rule of law. Fraud in civil litigation is punished at the least and criminal liability at worst. Amendment (IX) to the Criminal Law, which came into effect on November 1, 2015, specifically establishes the crime of "false litigation": a person who initiates a civil lawsuit based on fabricated facts, obstructs judicial order or seriously infringes upon the lawful rights and interests of others, shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or controlled release, and/or a fine;where the circumstances are serious, a sentence of between three and seven years imprisonment and a concurrent fine is to be given.
In recent years, in order to further strengthen the punishment of false litigation crimes, the relevant departments have issued and implemented a series of judicial interpretations, which can be described as a heavy blow and made every effort to safeguard the authority of the judiciary
In October 2018, the Supreme People's Court and the Supreme People's Procuratorate promulgated and implemented the Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of False Litigation (hereinafter referred to as the "Interpretation").
In March 2021, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice jointly issued the Opinions on Further Strengthening the Punishment of False Litigation Crimes (hereinafter referred to as the "Punishment Opinions").
In November 2021, the Supreme People's Court issued and implemented the Opinions of the Supreme People's Court on Carrying Out In-depth Efforts to Rectify False Litigation.
Which subjects may constitute the crime of false litigation?
It can be seen from the provisions of the Criminal Law that the scope of regulation of the crime of false litigation is limited to the field of civil litigation, the subject of the crime is the individual or unit that "initiates a civil lawsuit", the objective act is "fabricating facts", and the legal interests protected are the judicial order and the lawful rights and interests of others.
In civil litigation, the plaintiff is one of the subjects of the crime. Of course, according to the Interpretations of the Supreme People's Court and the Supreme People's Court, in addition to the plaintiffs of the first instance, the plaintiffs in seven other types of civil litigation procedures, such as third-party revocation lawsuits, enforcement objection lawsuits, counterclaims, and retrials, are also the subject of this crime, which will not be discussed in this article.
In judicial practice, most of the perpetrators suspected of the crime of false litigation are the plaintiffs of the first civil trial, i.e., the plaintiffs. Those who take up the law to protect their legitimate rights and interests may be investigated for criminal responsibility by the law
Let's start with an example.
In the case (2020) Hei 1222 Xingchu No. 84, the victim C borrowed 60,000 yuan from the defendant Y on the grounds of business money, and agreed on a monthly interest of 1,200 yuan, which was converted into C's salary as collateral. Later, C successively repaid 40,000 yuan and 20,000 yuan in cash to defendant Y, and defendant Y did not return the IOU to C on the grounds that he owed 3,600 yuan in interest. Four years later, defendant Y sued C for repayment of 60,000 yuan of principal and 31,200 yuan of interest, and C presented evidence in court that he had repaid the principal and interest, and defendant Y applied to withdraw the lawsuit. The public prosecution charged defendant Y X with fabricating facts to initiate a civil lawsuit, obstructing judicial order and infringing on the lawful rights and interests of others, and the huge amount constituted the crime of false litigation.
As a lawful creditor, defendant Y's struggle for rights and interests through litigation should have been undisputed, but why was he accused of constituting a crime?
What are the circumstances of "initiating a civil action on the basis of fabricated facts"?
In order to accurately understand the objective elements of the crime of false litigation, the Interpretation issued by the Supreme People's Court and the Supreme People's Procuratorate in October 2018 stipulates the specific circumstances of "initiating a civil lawsuit by fabricating facts":
1. Maliciously colluding with one of the husband and wife to fabricate joint debts of husband and wife;
2. Malicious collusion with others to fabricate creditor's rights and debts;
3. Maliciously colluding with legal representatives, directors, supervisors, and senior management personnel to fabricate unit debts or guarantee obligations;
4. Fabricating intellectual property infringement relationships or unfair competition relationships;
5. Declaring fabricated creditor's rights in bankruptcy cases;
6. Malicious collusion with the person subject to enforcement, fabrication of creditor's rights or priority or security interest in the seizure of frozen property;
7. Unilaterally or maliciously colluding with others to fabricate civil legal relationships such as identity, contract, tort, inheritance, etc.;
8. Concealing the fact that the debts have been fully paid off, and filing a civil lawsuit to require others to perform the debts;
9. Applying to the court for enforcement of a judgment document made on the basis of fabricated facts, or raising an objection to enforcement based on fabricated facts, or applying to participate in the enforcement of property distribution.
It can be seen that false litigation acts are scattered in civil cases such as divorce and property separation, private lending, intellectual property rights, inheritance, unit debts, bankruptcy, and enforcement, and every civil subject should not take it lightly.
The above specific circumstances can be summarized into the following three points:
1. The crime of false litigation is limited to false litigation acts of "creating something out of nothing", and the essence of the act of "fabricating facts" is to fabricate civil legal relations and fabricate civil disputes, both of which should be present at the same time and are indispensable.
2. "Initiating a civil lawsuit based on fabricated facts" includes the negative act of fabricating facts, which is "concealing the truth". It is easy to understand that fraud in the crime of fraud refers to "fabricating facts" or "concealing the truth".
3. The manifestations of the crime of false litigation include "unilateral fraud" and "collusion between the two parties", the former usually refers to the situation where the plaintiff of the first instance sues alone by fabricating facts, and the interests of the other party are mainly infringed;The latter refers to the malicious collusion of the plaintiff defendant to infringe on the interests of a third party outside the case, such as the husband and his friend colluding to forge a loan contract and suing with the intention of transferring the share of the property that should have been divided among the wife.
It can be seen that the main premise of constituting the crime of false litigation is that there is no right to sue, which has led to various litigation frauds of "making things out of nothing".
In other words, as long as the perpetrator obtains the right to sue on the basis of a genuine and lawful civil legal relationship, even if the facts such as the specific amount of the subject matter of the litigation, the method of performance, and the time limit for performance are exaggerated or concealed, it should not be found to constitute the crime of false litigation. In judicial practice, the above-mentioned acts belong to the "partial tampering" type of false litigation acts, and the premise of their establishment is the objective existence of civil legal relations and civil disputes.
How to deal with "partially tampering" false litigation behaviors?
Returning to the previous case, the defendant Y was accused of carrying out a "partial tampering" false litigation act, and the focus of the dispute between the prosecution and defense was: the defendant Y sued for C to repay the principal of 60,000 yuan and 31,200 yuan of interest, but concealed the fact that C had only repaid the principal of 3,600 yuan of interest and had not repaid it, and the public prosecution held that Y's conduct belonged to the Interpretation The second paragraph of Article 1 stipulates that a person who conceals the fact that the debt has been fully paid off and files a civil lawsuit with the people's court to demand that others perform the debt shall be regarded as "initiating a civil lawsuit based on fabricated facts".
After trial, the court held that the victim C had repaid the principal but not the interest, so there was a civil legal relationship between the two parties. Although the defendant Y filed a lawsuit with the court demanding that C repay the principal and interest totaling 91,200 yuan, there was an exaggeration and tampering with the amount, but the two parties still have a civil legal relationship and a civil dispute, which does not fall under the "Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of False Litigation" to conceal the fact that the debt has been fully paid off, and file a lawsuit with the people's court to demand that others perform the debt, and "fabricate facts to file a civil lawsuit" In the circumstances, defendant Y's conduct in initiating a civil lawsuit did not meet the constitutive elements of a fabricated factual lawsuit, and Y was finally found not guilty.
In judicial practice, similar cases include:
2019) Gui 1031 Xingchu No. 190.
In November 2014, A borrowed 150,000 yuan from defendant L, and the two parties agreed on a term of one year with an interest of 450,000 yuan. Defendant L deducted 4After 50,000 yuan, it will be 1050,000 yuan was paid to A, and A issued an IOU of 150,000 yuan. In October 2015, A issued another loan of 20An IOU of 40,000 yuan was given to defendant L, and it was agreed to be repaid in November 2016. In February 2016, defendant L sued on the basis of the first IOU, and the court ordered A to repay L 10$50,000 and overdue interest. In March 2017, L sued on the basis of the second IOU, and the court ordered A to repay the principal of L 20$40,000 and overdue interest. Later, the procuratorate accused L of initiating a civil lawsuit based on fabricated facts, obstructing judicial order, and constituting the crime of false litigation.
After the trial, the court held that the focus of false litigation is the falsity of "litigation", and the object of punishment for the crime of false litigation is the actor's exercise of false litigation rights, that is, the actor's act of initiating a civil lawsuit by fabricating civil legal relations and civil disputes that did not originally exist. In this case, the defendant L and A had a de facto loan relationship, that is, there was a civil legal relationship and a civil dispute between the two parties, and L had the right to sue in accordance with the law. As an adult with full capacity for civil conduct, the amount of a person is 20The second IOU of 40,000 yuan should have been signed with the knowledge of the existing risks, and there was no evidence to prove that the defendant L coerced A to sign the IOU, so the amount of A was 20The signature on the IOU of 40,000 yuan was voluntary, and the IOU was not forged by the defendant L, that is, L's conduct did not meet the circumstances of "initiating a civil lawsuit with fabricated facts", and L was finally found not guilty.
2019) Hei 1221 Xingchu No. 32.
Victim L borrowed 50,000 yuan from defendant W, agreed on three points of interest, and L issued an IOU and used his salary card as collateral. Later, L successively repaid 10,000 yuan and 19,900 yuan in cash, and defendant W withdrew a total of 39,500 yuan in cash from L's salary card during this period. Later, the two parties had a disagreement over the need to repay the interest, and the defendant W filed a civil lawsuit, and concealed the fact that L had repaid 39,900 yuan in cash during the litigation. After trial, the court ruled that L should repay the arrears of 459675 yuan, and issued an enforcement notice. On this basis, the public prosecution accused the defendant W of initiating a civil lawsuit based on fabricated facts, obstructing judicial order, and constituting the crime of false litigation.
After trial, the court held that the defendants W and L had a specific civil legal relationship due to private lending, and a civil dispute arose due to the repayment of the loan amount, which was not false in terms of civil legal relationship and civil dispute. In the course of the litigation, although the defendant W concealed the fact that L repaid the loan of 39,900 yuan, L admitted that there was indeed a loan of 600 yuan that had not been repaid, so W did not conceal the fact that the debt was fully repaid, which did not meet the circumstances of fabricating facts, and finally ruled that W was not guilty.
Conclusion
In judicial practice, the creditor files a civil lawsuit as a plaintiff and exaggerates or tamperes with the amount of the subject matter of the lawsuit to a certain extent, for complex reasons, some of which are for the consideration of litigation strategy, some are for the purpose of attracting the court's attention to speed up the case filing process, and some are due to improper understanding of the laws and regulations of private lending. Although this kind of conduct violates the principle of good faith, as long as there is a real civil legal relationship, it cannot be determined that it subjectively has the purpose of illegally occupying the property of others, and such conduct can generally be regulated by bearing the consequences of losing a civil lawsuit or judicial punishment, and should not rashly expand the scope of criminal crackdowns and pursue criminal responsibility at every turn.
For parties who have the lawful right to sue, the defense lawyer shall present detailed evidence in combination with the facts of the case and the materials in the case file to prove the existence of real and lawful civil legal relationships such as loans, mortgages, and guarantees, so as to form an effective defense strategy on the basis of a solid and solid argument, and make the greatest efforts to achieve a result of innocence.