論單方虛假訴訟的民事程序規制

On the Regulation of Unilateral False Lawsuit in Civil Litigation

《民訴法修正案》新增的單方虛假訴訟規範存在與雙方通謀型虛假訴訟的同質化問題，應當從司法秩序的單向保護視角轉向兼顧對方當事人權益保護的雙向視角，秉持區分化的基本邏輯對要件和效果進行再構築。單方訴訟欺詐的民事侵權責任實行以捏造基本事實和主觀故意為核心的四要件，無需設立非法侵害利益的主觀目的要件，以區別於濫用訴訟權利的惡意訴訟。強制措施則排除損害對方權益的結果要件，妨害司法秩序的行為要件應以法院耗費的司法資源為認定標準。法律效果應根據立案、審前、開庭、執行等階段，形成裁定駁回、判決駁回、強制措施、再審推翻、反訴侵權的規制體系，民事制裁在證明標準、適用範圍、處罰折抵等方面與刑事懲罰有機銜接。

The norm of unilateral false lawsuit newly added in the amendment of Civil Procedure Law has the problem of homogenization with false lawsuit involving collusion. It is necessary to shift from the one-way protection perspective towards judicial order to the two-way perspective which takes into account the protection of the other party’s rights and interests. The elements and effects shall be reconstructed under the basic logic of differentiation. The civil liability for unilateral false lawsuit should be based on the four elements including fabrication of basic facts and subjective intent instead of setting up the subjective purpose element of illegal infringement of interests, in order to distinguish it from the malicious lawsuit of abuse of litigation rights. On the other hand, the compulsory measures should exclude the result element of harming the other party’s rights and interests, and the act element of obstructing judicial order shall be determined by the judicial resources consumed by the court. The legal effect should be based on the stages of filing, pre-trial, trial and execution, and form a regulatory system including ruling to dismiss, judgment to dismiss, coercive measures, retrial to overturn, counter-suit infringement. Civil sanctions shall connect organically with criminal punishment in the aspects of standard of proof, scope of application, penalty trade-offs and so on.