虛假訴訟的本質與邊界

從2016至2021年，最高人民法院關於虛假訴訟涵攝範圍的立場發生明顯改變；基於對1570宗案件的分析，發現各地法院對虛假訴訟的認定亦有方向性分歧；學說上，關於虛假訴訟則存在“虛假糾紛說”“第三人損害說”“司法秩序妨害說”的分野。以對訴訟本質的認識為前提，虛假訴訟應定位於從根本上消解民事訴訟“兩造對抗”基本結構的“惡意串通”行為。該類行為徹底瓦解民事訴訟制度功能得以發揮的結構性支撐，導致“訴訟”成為缺乏對抗本質的“媾和”，應當受到特別規制，以實現制度的規範意旨。“單方行為”應被排除在虛假訴訟之外，這不僅源於既有妨害民事訴訟行為的強制措施完全可以應對“單方行為”，也因為“單方行為”的納入會肇致虛假訴訟邊界不清、損害當事人訴訟權利、違反比例原則、增加法院審理負擔、有損司法形象。惡意訴訟、濫用訴權、冒名訴訟等異化的訴訟形態，與虛假訴訟存在根本的差異，也須予以明確的界分。

The years between 2016 and 2021 have witnessed an apparent change of the Supreme Peo-ple's Court's standing on the scope of sham lawsuits. Based on the analysis of 1570 cases, it is found that there are fundamental differences in the adjudications on sham lawsuits rendered by courts in different re-gions. In theory, a divergence shall be found between 'the theory of sham dispute', 'the theory of injury to a third party' and 'the theory of obstruction of judicial order'. Upon the precondition of knowing the essence of lawsuit, the sham lawsuit shall be defined as an act of 'malice conspiracy' that aims to funda-mentally destruct the basic structure of 'two-party confrontation' of civil proceedings. This kind of law-suits completely disintegrates the structural foundation that enables the operation of the civil proceeding system, and makes 'lawsuit' to become 'making peace' without adversary. This act shall be especially regulated to realize the system's regulatory purpose. The reasons that 'unilateral act' shall be excluded from the scope of sham lawsuits are not only that the coercive measures against the acts of obstructing civil proceeding could easily handle 'unilateral act', but also that the inclusion of 'unilateral act' would blur the boundary of sham lawsuit, infringe on the parties' right of lawsuit, violate the principle of pro-portion, increase the court's burden of trial, and damage judicial authority. The unlawful forms of law-suits, such as malice lawsuit, abuse of right of lawsuit, bringing lawsuit by assuming other's name, are fundamentally different from sham lawsuits, and thus shall be clearly differentiated.