CHINA Trends and Developments Contributed by: Michael Ma, Dacheng Law Offices
leading to the court issuing and enforcing four civil mediation documents based on fabricated facts. Du was ultimately sentenced to one year and three months in prison for the crime of false lawsuit and fined CNY30,000. In another case handled by the Hongkou Court in Shanghai, Yuan (a legal worker at a law firm) collaborated with one party to forge agreements and fabricate facts to initiate false litigation against a company, ultimately obtaining over CNY3 million through the enforcement. Yuan was sentenced to two years in prison for the crime of false litigation and fined CNY20,000. Apart from criminal offences, lawyers involved in false litigation are also likely to face adminis - trative penalties. Article 25 of the “Opinions on False Litigation” emphasises that lawyers, legal service workers, notaries and others involved in fabricating or participating in false litigation may be issued judicial suggestions to relevant admin - istrative authorities or industry associations to urge timely administrative penalties or industry disciplinary actions. Article 59 of the Adminis - trative Litigation Law stipulates: “If a litigation participant or other person engages in any of the following behaviours, the people’s court may, depending on the severity of the circumstances, give a warning, order them to repent and cor - rect their ways, impose a fine of not more than 10,000 yuan, or detain them for not more than 15 days; if the act constitutes a crime, crimi - nal responsibility shall be pursued according to law:... (2) forging, concealing, destroying evi - dence or providing false evidence, obstructing the people’s court in hearing cases...” Therefore, lawyers suspected of forging evi - dence or making false statements will face administrative penalties. For instance, a lawyer who made false statements in representing a
labour case and later encouraged the parties to delete WeChat messages to destroy evidence was fined by the Zhongshan Second People’s Court, and a judicial recommendation letter was sent to the Foshan Judicial Bureau. Similarly, in a case where Shaanxi lawyer Fu learned that multiple signatures on several documents were forged and shareholders did not actually contrib - ute capital, which constituted false litigation, Fu advised the parties to make false statements in court to conceal the truth. Fu was sentenced to two years and six months in prison for the crime of false lawsuit by the Chang’ an Court, a deci - sion upheld by the Xi’an Intermediate Court on appeal. After the criminal judgment was made, the Shaanxi Department of Justice imposed an administrative penalty on Fu by revoking his law - yer’s practice certificate. Crime of false lawsuit – mens rea The subjective aspect of this crime manifests as direct intent, meaning that the perpetrator, knowing full well that they are fabricating facts and preparing to initiate civil litigation based on this fabrication, actively pursues the occurrence of this result despite the potential disruption of the normal judicial order or severe infringement of the legitimate rights of others. In this context, negligence is not sufficient. In civil cases, the claimant in the original action or counterclaim actively seeks court support for their litigation claims by fabricating facts, forg - ing evidence or making false statements. The direct intent behind their false lawsuit behaviour is often self-evident. Whether the actions of the defendant, other litigation participants or even bystanders constitute a crime depends direct - ly on whether such parties colluded with the claimant. If they are merely passively involved or caught up in the claimant’s fabricated litiga - tion without subjective intentional behaviour,
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