What is the impact of the SPC's issuance of opinions on rectifying false litigation on civil procuratorial supervision?

Source: Procuratorial Daily

What is the positive impact of the SPC's issuance of opinions on the rectification of false litigation on civil procuratorial supervision?

Wang Xuanwei

On November 9, 2021, the Supreme People's Court issued the Opinions of the Supreme People's Court on Deeply Carrying Out the Rectification of False Litigation (hereinafter referred to as the Opinions), and also released 10 typical cases of courts rectifying false litigation. Compared with the 18 articles and more than 1,700 words of the "Guiding Opinions of the Supreme People's Court on Preventing and Sanctioning False Litigation" (hereinafter referred to as the "Guiding Opinions"), which were promulgated five years ago, the "Opinions" have a more in-depth study of false litigation, more detailed provisions, and stronger guidance for civil judicial activities, reflecting the "main battlefield" status and "main force" role of the courts in preventing and sanctioning false litigation. Procuratorial organs are also an important subject in discovering and investigating false litigation, and the Opinions also have a clear positive impact on procuratorial organs' supervision of false litigation.

The concept and connotation of civil false litigation are defined

Since the launch of the work to rectify false litigation, a prominent problem affecting this work is that the concept of "false litigation" is not clear, resulting in different understandings of which situations constitute false litigation. For a long time, there have been many opinions on the question of "what is a civil false lawsuit". In its 2016 Guiding Opinions, the SPC only pointed out that civil false litigation "generally contains" five elements and did not define the concept, while the unilateral work guidelines of the procuratorial organs lacked the common confirmation of the courts, and the authority of the local and procuratorial courts in the form of counter-signature documents was not enough. Therefore, the problem of unclear conceptual connotation not only plagues the procuratorial organs for a long time, but also often leads to differences in legal inspection work.

The "Opinions" finally clearly stated: "Whoever, alone or maliciously colludes with others, employs means such as fabricating evidence or making false statements, fabricates the basic facts of civil cases, fabricates civil disputes, and files civil lawsuits with the people's courts, harming the interests of the state, the societal public interest, or the lawful rights and interests of others, and obstructing judicial order, constitutes a false lawsuit." Compared with the 2016 Guiding Opinions, the significance of this clear statement is that: First, it affirms that the unilateral acts of the actors can constitute false lawsuits. This abandons the narrow understanding that the filing of false lawsuits should generally include the factor of "malicious collusion between the parties" in the past, and lifts the restriction on the punishment of unilateral behavioral false lawsuits. Second, it is no longer believed that false litigation is generally "for the purpose of circumventing laws, regulations or national policies for illegal benefits". In practice, "circumvention of the law" false litigation accounts for only a minority, and generally only appears in areas where policies such as housing purchase restrictions and motor vehicle registration restrictions are implemented. In the vast majority of other false lawsuits, the purpose of the perpetrators is mainly to infringe on the interests of the state, the societal public interest, or the lawful rights and interests of others, and there is not necessarily the intention to circumvent the law. The third is to affirm that "false statements" can become a means and requirement for false litigation. In civil litigation, it is common for parties or witnesses to make statements that are untrue and unobjective. Some of these are differences in understanding, and some are inadvertent, but in many cases they are deliberate and are fabricated facts. In the 2016 Guiding Opinions, the elements of false litigation are limited to "fictitious facts" and do not include "false statements", which increases the difficulty of determining false litigation. Relatively speaking, the concept of false litigation defined in the Opinions is more comprehensive and reasonable, which is conducive to the further unification of judicial understanding between the procuratorate and the law, and thus conducive to the identification and crackdown on civil false litigation.

The characteristics and focus areas of civil sham litigation are hinted at

In the 2016 Guiding Opinions, five situations that require special attention are enumerated in judicial practice, namely, where there is a close relationship or a relationship of common interest between the parties, where the amount of the subject matter of the plaintiff's request is seriously inconsistent with its own economic situation, where the facts and reasons on which the plaintiff sues are clearly unreasonable, where the parties have no substantive civil rights and interests dispute, and where there is insufficient evidence in the case but the two parties still take the initiative to quickly reach a mediation agreement. These situations, in fact, describe the characteristics of false litigation. In recent years, with the investigation and handling of false lawsuits by judicial organs, some new features of false lawsuits have been discovered.

In the "Opinions" issued this time, in addition to the above five situations, three situations have also been added: "the self-perception of the parties is unreasonable", "the parties are burdened with heavy debts but transfer property at obviously unreasonable low prices, transfer property at obviously unreasonable high prices or give up property rights", "the parties have personally experienced the facts of the case but cannot fully and accurately state the facts of the case or the statements are inconsistent". These additions are very important, providing a guide for courts to identify false lawsuits and a reference for procuratorial organs to carry out supervision of false lawsuits.

The Opinions not only sort out the characteristics of false litigation, but also hint at the high incidence of false litigation. In addition to the areas of private lending, divorce and property dissolution, debt in kind, labor disputes, corporate separation and merger, and enterprise bankruptcy mentioned in the 2016 Guiding Opinions, the Opinions also point out that litigation for enforcement of oppositions, trademark disputes involving well-known trademarks, disputes over marriage inheritance and housing sales contracts involving demolition and relocation, sales contracts involving macro-control policies such as housing purchase restrictions, and disputes over debt in kind should also be paid close attention to. These tips "delineate the focus" for the procuratorial organs to carry out false litigation supervision. In particular, the field of litigation for enforcement objections belongs to the "area where the current growth of false litigation is relatively fast". The "Opinions" make it clear that those who raise objections to the subject matter of enforcement or apply to participate in the enforcement of property distribution based on fabricated facts in the course of enforcement are also false lawsuits. Several provisions in the Opinions provide guidance on how to prevent and identify false litigation in this area. For the procuratorate, this guidance is of great significance. In the past few years, the number of enforcement supervision cases accepted by procuratorial organs has grown rapidly, but the level of supervision is relatively shallow, most of them only stay in procedural and flawed supervision, and there are fewer deep-seated illegal problems behind the real discovery of superficial phenomena. In the future, while shifting the focus of enforcement supervision to substantive supervision such as property control links, property disposal links, and case funds distribution links, procuratorial organs must not neglect supervision of enforcement review activities such as enforcement objections, reconsiderations, and appeals. When supervising litigation against enforcement, attention should be paid to examining whether the outsider and the person subject to enforcement have an interest in the case and whether there is malicious collusion, and also pay attention to examining whether the outsider bears the burden of proof on whether the outsider enjoys civil rights and interests in the subject matter of enforcement that are sufficient to exclude enforcement, and whether the evidence is true, legal, and relevant. The content of these tips puts forward new requirements for procuratorial organs to carry out civil procuratorial work.

Clarified the liability of the perpetrators of false litigation

Should the perpetrator of the false lawsuit be liable for tort liability? This issue has been controversial in the past. In past judicial practice, there were three main types of legal liability borne by the perpetrators of false litigation: First, criminal liability. That is, if the perpetrator constitutes the crime of false litigation, he shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined or fined alone; The second is liability for civil violations. That is to say, the court may impose judicial sanctions such as detention and fines on parties who have false litigation acts according to the seriousness of the circumstances. The third is civil liability. That is, bear the consequences of losing the lawsuit. In addition, the provisions on whether the false litigation actor should bear tort liability for the infringed civil rights and interests are unclear.

In this "Opinion", the Supreme People's Court clearly stipulates: "Where false litigation infringes on the civil rights and interests of others, the perpetrator shall bear the liability for compensation." It is foreseeable that in the future, there will be "false litigation infringement disputes" in the causes of civil litigation in the mainland. Correspondingly, the procuratorial organs' attention should also be expanded from civil cases where there are false lawsuits to the cases of false litigation infringement litigation that will continue to appear in the future.

Among the 10 typical cases of rectifying false litigation issued by the Supreme People's Court, the case of Company A's creditor suing Shao for infringement compensation is a case of liability for compensation due to false litigation. In the "typical significance" of the case, the SPC pointed out that if the damage caused by a false lawsuit meets the general characteristics and constituent elements of the tortious act, it is an infringing act and should bear tort liability. Moreover, even if the perpetrator has been sentenced to a criminal penalty for false litigation, he is not exempt from civil liability. Allowing false litigation actors to bear both criminal punishment and civil compensation liability in addition to bearing the risk of losing the lawsuit is of positive significance for effectively deterring wrongdoers and protecting the legitimate rights and interests of victims.

The coordination mechanism for the rectification of false litigation has been improved

In the "Opinions on Further Strengthening the Punishment of False Litigation Crimes" signed by the "Two Supreme People's Procuratorates and Two Ministries" in March 2021, there is a main provision on the coordination mechanism, that is, "the people's courts, people's procuratorates, public security organs, and judicial-administrative organs explore the establishment of an information sharing mechanism and an information exchange data platform for judgment documents such as civil judgments, rulings, and mediation documents, comprehensively use information technology to explore clues to the illegal crimes of false lawsuits, and gradually realize the sharing of information and data in cases of false lawsuits and crimes.". In the Opinions, the SPC expanded the coordination and cooperation mechanism between political and legal units to include a mechanism for sharing information on false litigation cases, a mechanism for transferring clues on illegal crimes in false litigation, a mechanism for coordinating and punishing criminal and civil intersectional cases in false litigation, and a mechanism for joint meetings on rectifying false litigation, and put forward requirements for courts at all levels to actively explore improving coordination and cooperation mechanisms with procuratorates, public security organs, and judicial administrative organs, with the goal of "dividing labor and responsibility with all political and legal units, communicating and cooperating, and promoting the establishment of information interconnection and sharing." The pattern of false litigation rectification work in an orderly manner, coordination and cooperation in rectification, and joint consultation and co-construction of systems" is carried out." Behind these contents, we can see the powerful measures taken by the SPC to rectify false litigation, and we can feel the pragmatic response of the SPC to the SPP's "No. 5 Procuratorial Recommendation".

We believe that after the promulgation of the Opinions, the differences between the procuratorate and the law on the determination of civil false litigation will be significantly reduced, the joint force in the prevention and sanction of false litigation will be further formed, and the work of rectifying false litigation will step onto a new level.

(Author Affilications:People's Procuratorate of Yunnan Province)