诉讼欺诈行为定性之探析

诉讼欺诈行为具有严重的社会危害性,但目前我国现行刑法对于诉讼欺诈行为的处罚力度不够,在司法实践中对同一行为处理结果差别悬殊。这主要是由于我国立法上对于该行为没有统一明确的规定,刑法理论上对该行为的定性问题争论颇大所致。对于诉讼欺诈行为,不宜按诈骗罪定罪处罚。对于诉讼欺诈犯罪过程中所实施的触犯现行刑法的行为,应依法定罪处罚,对于刑法没有规定的部分应按无罪处理。我国刑法应单独设立“诉讼欺诈罪”。

Qualitative Studies of the Act of Litigation Fraud

Litigation fraud does great harm to the society.The penalty which China's existing criminal law has provided is far away from enough at present,and results of dealing with the same act of litigation fraud in judicial practice show great differences,the reasons for which may be that litigation fraud has not been unified and enacted explicitly in legislation and there is much difference in defining this act in China's theory of criminal law.Litigation fraud should not be convicted and punished in accordance with the crime of fraud.The acts of litigation fraud that go against the existing criminal code should be condemned and those that haven't been enacted by criminal code should be convicted innocence.China's criminal code should establish "crime of litigation fraud" singly.