CHINA Trends and Developments Contributed by: Michael Ma, Dacheng Law Offices
they should not be considered accomplices to this crime. Crime of false lawsuit – actus rea When discussing the objective aspect of the behaviour of “filing civil litigation based on fab - ricated facts”, the most crucial point is to delve into the term “fabrication”. Article 1 of the “Inter - pretation on False Litigation” enumerates the fol - lowing seven situations of “fabricating facts”: • collusion between one spouse and the third party, fabricating the joint marital debts; • collusion with others and the fabrication of creditor-debtor relationships and agree - ments involving debt settlement through the exchange of goods; • collusion with the legal representatives, direc - tors, supervisors, managers or other execu - tives of a company or enterprise, and the fabrication of the company’s or enterprise’s debts or guarantee obligations; • fabrication of intellectual property infringe - ment or unfair competition relationships; • falsely declaring debts during bankruptcy proceedings; • collusion with the debtor and the fabrication of creditor rights or priorities over seized, impounded or frozen assets; and • unilateral fabrication or collusion with others in fabricating identities, contracts, infringe - ments, inheritances and other civil legal relationships. Initiating civil litigation in the People’s Court while concealing the fact that the debt has been fully paid off, and demanding others to fulfil the debt, falls under the category of “filing civil litiga - tion based on fabricated facts”. Applying for the enforcement of arbitration awards based on fabricated facts, objecting to
the enforcement or applying to participate in the distribution of executed property based on fabricated facts also fall within the scope of the crime of “filing civil litigation based on fabricated facts”, as stipulated in Article 307(1) of the Crimi - nal Law. Whether the crime of false lawsuit is limited to instances of “creating something out of nothing” or also includes situations of “a mixture of truth and falsehood” has indeed sparked widespread controversy in the theoretical discussion and judicial practice of false litigation crimes. According to the “Interpretation on False Law - suit”, the crime is limited to acts of creating something out of nothing, fabricating civil legal relationships and disputes. Cases of “a mixture of truth and falsehood” do not constitute a crime, particularly “partial alteration type” false litiga - tion behaviour where the objective existence of civil legal relationships and disputes is acknowl - edged, and the individual only exaggerates or conceals specific facts regarding the litigation subject amount or the method of performance. Some scholars argue that the social harm brought about by “partial alteration type” false lawsuits may be even greater but this view is not currently accepted by the judicial practice, and “partial alteration type” false lawsuits would nor - mally not be prosecuted. For instance, in a case in Zhejiang province, the judgment debtor Jin intended to avoid the enforcement of his assets so partially altered the loan agreement jointly with other debtors and sued under the name of another person (the altered “lender”); ultimately, the court did not find sufficient evidence of fab - ricating creditor-debtor relationships, so did not convict Jin of false litigation but sentenced him for the crime of “refusing to comply with judg - ments or orders”.
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