Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of Justice

Issuance of the "Opinions on Further Strengthening the Punishment of Crimes of Fictitious Litigation"

Recently, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice issued the "Opinions on Further Strengthening the Punishment of Crimes of Fictitious Litigation" (hereinafter referred to as the "Opinions"), which will be implemented from March 10, 2021.

The "Decision of the Central Committee of the Communist Party of China on Several Major Issues Concerning Comprehensively Promoting the Rule of Law" adopted by the Fourth Plenary Session of the 18th CPC Central Committee proposed to increase the punishment of false litigation, malicious litigation, and unreasonable entanglement. The Supreme People's Court resolutely implemented the decision-making arrangements of the Party Central Committee and attached great importance to the lawful punishment of illegal and criminal acts of false litigation. It has successively formulated and promulgated a number of judicial interpretations and normative documents. Among them, in September 2018, it jointly issued the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of False Litigation" with the Supreme People's Procuratorate, which clearly stipulated the behavioral characteristics and criteria for conviction and sentencing of the crime of false litigation stipulated in the Criminal Law. However, in practice, there are still problems such as the untimely identification and discovery of crimes of false litigation, the unsound communication and cooperation mechanism of judicial organs in investigating and handling criminal cases of false litigation, and the lack of smooth connection between relevant civil litigation and criminal litigation procedures, which affect the punishment of crimes of false litigation. In order to further implement the decision-making arrangements of the Party Central Committee, the Supreme People's Court, together with the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice, conducted research and widely solicited opinions from all parties, forming the "Opinions", which made specific provisions on establishing and improving the coordination and cooperation and procedural connection mechanism for punishing crimes of false litigation, and further strengthening the punishment of crimes of false litigation.

The "Opinions" includes seven chapters: General Provisions, Identification and Discovery of Crimes of Fictitious Litigation, Transfer of Clues and Investigation of Cases, Procedural Connection, Accountability, Cooperation Mechanism, and Supplementary Provisions, with a total of twenty-nine articles. The "Opinions" adheres to Xi Jinping's thought on the rule of law as guidance, strictly cracks down on acts that hinder judicial order or seriously infringe upon the legitimate rights and interests of others through false litigation in accordance with the law, protects the legitimate rights and interests of natural persons, legal persons, and unincorporated organizations, and ensures that the people can exercise their right to sue in accordance with the law. At the same time, it adheres to a problem-oriented approach, focuses on solving prominent problems existing in practice, and provides effective guidance for judicial practice.

The "Opinions" emphasizes that the people's courts, the people's procuratorates, public security organs, and judicial administrative organs should be responsible for their respective duties, cooperate and coordinate, strengthen communication and coordination, and promptly notify each other of situations when they discover possible crimes of false litigation in the process of performing their duties, and jointly prevent and punish crimes of false litigation; explore the establishment of a civil judgment document information sharing mechanism and an information interconnection data platform, comprehensively use information technology to discover illegal and criminal clues of false litigation, and gradually realize information and data sharing of illegal and criminal cases of false litigation; implement the popularization of law responsibility system of "whoever enforces the law popularizes the law", enhance the whole society's awareness of preventing illegal and criminal acts of false litigation, and deter illegal and criminal acts of false litigation.

The "Opinions" stipulates the specific issues of transferring clues and investigating cases of crimes of false litigation. The "Opinions" clarifies the written materials required for the people's courts and the people's procuratorates to transfer clues of crimes of false litigation discovered in the process of performing their duties to the public security organs in accordance with the law, as well as the specific handling methods and relevant time limit requirements after the public security organs accepting the case review it. The "Opinions" also clarifies that the people's procuratorates shall supervise the criminal case filing of the public security organs in accordance with the law; if the people's courts disagree with the decision of the public security organs not to file a case, they may suggest that the people's procuratorates conduct filing supervision.

As a key content, the "Opinions" makes targeted provisions on the connection between civil litigation and criminal litigation procedures related to crimes of false litigation. First, it clarifies that if the people's court transfers a case suspected of false litigation to the public security organ, and the civil case must be based on the trial result of the relevant criminal case, it shall rule to suspend the litigation in accordance with the law, but if the trial result of the criminal case does not affect the normal progress of the civil litigation procedure, the civil case shall continue to be heard; second, it establishes the information communication mechanism between the people's courts and between the public security organs handling criminal cases of false litigation and the people's courts handling relevant civil cases and the people's procuratorates at the same level; third, it further clarifies the conditions for the people's procuratorates to file a retrial procuratorial proposal or protest against effective civil judgments, rulings, and mediation documents that have illegal and criminal acts of false litigation, as well as the corresponding handling methods of the people's courts; fourth, in order to facilitate the public security organs to exercise the power to investigate crimes of false litigation in accordance with the law and the people's procuratorates to perform their civil procuratorial duties in accordance with the law, according to the spirit of the existing normative documents, it is clarified that the public security organs and the people's procuratorates may copy electronic volumes or consult, copy, and excerpt the civil litigation files of the people's courts in accordance with the regulations, and the people's courts shall cooperate.

In response to the issue of a very small number of judicial personnel, lawyers, etc. participating in false litigation, the "Opinions" stipulates the general principles for holding the above-mentioned personnel accountable. The "Opinions" emphasizes that for judicial personnel who use their powers to participate in false litigation, they must adhere to the principle of self-examination and be dealt with strictly in accordance with laws and regulations. If a crime is constituted, they shall be investigated for criminal responsibility in accordance with the law; if lawyers, grassroots legal service workers, judicial appraisers, notaries, and appraisers use their positions to participate in false litigation, they shall be investigated for legal responsibility in accordance with relevant regulations. The "Opinions" also clarifies that before the people's court transfers relevant materials of a case suspected of false litigation to the public security organ, it may first take compulsory measures such as fines and detention against those who obstruct civil litigation, and guide relevant people's courts to further clarify their ideological understanding and take compulsory measures against civil litigation parties and other litigation participants who implement false litigation in a timely manner.

In addition, the "Opinions" also stipulates the extension of "filing a civil lawsuit" in the first paragraph of Article 307 of the Criminal Law, the identification and discovery of crimes of false litigation in the process of civil case trial, and other content.

Fa Fa [2021] No. 10

Supreme People's Court Supreme People's Procuratorate Ministry of Public Security Ministry of Justice

Opinions on Further Strengthening the Punishment of Crimes of Fictitious Litigation

Chapter I General Provisions

Article 1 In order to further strengthen the punishment of crimes of false litigation, maintain judicial justice and judicial authority, protect the legitimate rights and interests of natural persons, legal persons and non-legal persons, and promote the construction of social integrity, in accordance with the "Criminal Law of the People's Republic of China", "Criminal Procedure Law of the People's Republic of China", "Civil Procedure Law of the People's Republic of China" and "Supreme People's Court, Supreme People's Procuratorate on the Handling of False Litigation Criminal Cases Applicable to Several Issues of Legal Interpretation" and other regulations, combined with the actual work, the opinion is formulated.

Article 2 The crime of false litigation referred to in this opinion refers to the act of a person, alone or in collusion with others, using means such as forging evidence and making false statements, fabricating the basic facts of a civil case, fabricating a civil dispute, and filing a civil lawsuit with the people's court, hindering judicial order or seriously infringing upon the legitimate rights and interests of others, and which should be subject to criminal punishment according to law.

Article 3   People's courts, people's procuratorates, public security organs, and judicial administrative organs shall, in accordance with their statutory duties, be responsible for division of labor, cooperation, and coordination, strengthen communication and coordination, and promptly notify each other of situations where false litigation crimes may exist in the process of performing their duties, and jointly prevent and punish false litigation crimes.

Chapter II Identification and Discovery of False Litigation Crimes

Article 4   Implementing the act of fabricating facts as stipulated in the first and second paragraphs of Article 1 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of False Litigation, and having one of the following circumstances, shall be identified as 'initiating a civil lawsuit with fabricated facts' as stipulated in the first paragraph of Article 307 of the Criminal Law:

　　(1) Filing a civil lawsuit;

　　(2) Applying to the people's court for a declaration of disappearance or death, applying for the determination of a citizen's lack of or limited capacity for civil conduct, applying for the determination of property as ownerless, applying for confirmation of a mediation agreement, applying for the realization of security interests, applying for a payment order, or applying for public announcement and notification;

　　(3) Adding independent claims or counterclaims during civil proceedings, or a third party with independent claims making claims related to the case;

　　(4) Filing claims in bankruptcy proceedings;

　　(5) An outsider applying for civil retrial;

　　(6) Applying to the people's court for enforcement of an arbitration award or notarized creditor's document;

　　(7) An outsider raising objections to the execution target during civil execution, or a creditor applying to participate in the distribution of executed property during civil execution;

　　(8) Fabricating basic facts of civil cases by other means, fabricating civil disputes, and initiating civil lawsuits.

Article 5   For the following types of civil cases that are prone to false litigation crimes, the people's courts and people's procuratorates shall focus on them in the process of performing their duties:

　　(1) Private lending dispute cases;

　　(2) Cases involving the restriction of housing purchases and the regulation of motor vehicle allocation indicators in which objects are used to offset debts;

　　(3) Property dispute cases in which one party to a divorce lawsuit is the defendant;

　　(4) Property dispute cases in which the defendant is a natural person, legal person, or non-legal person organization that is already insolvent or has been used as the person subject to execution;

　　(5) Divorce, division of family property, inheritance, and housing sales contract dispute cases in which natural persons within the demolition zoning area are parties;

　　(6) Company division, merger, and enterprise bankruptcy dispute cases;

　　(7) Labor dispute cases;

　　(8) Cases involving the recognition of well-known trademarks;

　　(9) Other civil cases that require special attention.

Article 6   If a party to a civil lawsuit has one of the following circumstances, the people's court and the people's procuratorate shall strictly review it in accordance with the law in the process of performing their duties, and promptly identify and discover false litigation crimes:

　　(1) The facts and reasons on which the plaintiff's lawsuit is based are not in accordance with common sense, and there is a possibility of forging evidence or making false statements;

　　(2) The amount of litigation subject matter for which the plaintiff requests judicial protection is seriously inconsistent with his/her own economic situation;

　　(3) In cases that may affect the interests of outsiders, there is a close relationship between the parties or a common interest relationship such as affiliated enterprises;

　　(4) There is no substantial dispute over civil rights and interests and no substantial adversarial defense between the parties;

　　(5) One party clearly expresses admission to the facts unfavorable to it raised by the other party, and it is not in accordance with common sense;

　　(6) There is insufficient evidence to determine the facts of the case, but both parties voluntarily and quickly reach a mediation agreement and request the people's court to issue a mediation statement;

　　(7) The parties voluntarily use property with obviously unequal prices to offset debts;

　　(8) There are other abnormal circumstances in the civil litigation process.

Article 7   If a civil litigation agent, witness, appraiser, or other litigation participant has one of the following circumstances, the people's court and the people's procuratorate shall strictly review it in accordance with the law in the process of performing their duties, and promptly identify and discover false litigation crimes:

　　(1) The litigation agent illegally accepts property or other benefits from the opposing party or an outsider, colludes with the opposing party or an outsider in bad faith, and infringes upon the legitimate rights and interests of the client;

　　(2) Intentionally providing false evidence, instigating or inducing others to forge or alter evidence, provide false evidence, or conceal or destroy evidence;

　　(3) Taking other improper means to interfere with the normal progress of civil litigation activities.

Chapter III Transfer of Clues and Investigation and Handling of Cases

Article 8   The sources of clues for false litigation crimes discovered by the people's courts, people's procuratorates, and public security organs include:

　　(1) Reports, accusations, reports, and applications for legal supervision from civil litigation parties, litigation agents and other litigation participants, interested parties, other natural persons, legal persons, and non-legal person organizations;

　　(2) A victim has evidence to prove that the defendant should be held criminally liable in accordance with the law for infringing on his/her legitimate rights and interests by implementing false litigation acts, and has evidence to prove that he/she has filed an accusation, but the public security organ or the people's procuratorate does not pursue the defendant's criminal liability, and the victim files a criminal private prosecution with the people's court;

　　(3) Proactive discovery by people's courts, people's procuratorates, public security organs, and judicial administrative organs in the process of performing their duties;

　　(4) Case clues transferred by relevant state organs;

　　(5) Other sources of clues.

Article 9   Criminal cases of false litigation shall be under the jurisdiction of the people's court at the location of the accepting court or the executing court of the relevant false civil litigation case. In the event of the circumstance described in paragraph 4 of Article 307 of the Criminal Law, the people's court at a higher level may designate a people's court at a lower level to transfer the case to another people's court for trial.

　　The accepting court of the relevant false civil litigation case mentioned in the preceding paragraph includes the court of first instance, second instance, and retrial of the civil case.

　　The level jurisdiction of criminal cases of false litigation shall be determined in accordance with the provisions of the Criminal Procedure Law.

Article 10   When transferring cases suspected of false litigation crimes to the public security organs, the people's courts and the people's procuratorates shall attach the following materials:

　　(1) A case transfer letter, stating the name of the people's court or people's procuratorate transferring the case, the names of the parties to the civil case and the cause of action, the stage of the civil proceedings, the civil case handler and contact telephone number, etc. The case transfer letter shall be attached with a list of transferred materials and a receipt, and shall be affixed with the official seal of the people's court or people's procuratorate after being approved by the person in charge of the people's court or people's procuratorate;

　　(2) A description of the transferred clues, stating the source of the case, the information of the parties, the facts of the suspected crime of false litigation, the legal basis, etc., and attaching relevant evidence materials;

　　(3) Litigation materials related to the civil case, including the complaint, the defense statement, the court transcript, the investigation transcript, the interview transcript, etc.

　　The people's courts and the people's procuratorates shall designate special functional departments to be responsible for the transfer of cases suspected of false litigation crimes.

　　Where a people's court transfers a case suspected of false litigation crime to a public security organ, it shall simultaneously notify the people's procuratorate at the same level of the relevant situation.

Article 11   Where a people's court or a people's procuratorate determines that the act of a party to a civil lawsuit or other participant in the lawsuit is suspected of constituting a crime of false litigation, in addition to the statements and testimonies of the party to the civil lawsuit, other participants in the lawsuit, or an outsider to the case, there shall generally also be physical evidence, documentary evidence, or other witness testimonies that corroborate each other.

Article 12   Where a people's court or a people's procuratorate transfers relevant materials of a case suspected of false litigation crime to a public security organ, the public security organ accepting the case shall issue a receipt for accepting the case or sign for receipt on the receipt attached to the case transfer letter.

　　After receiving the relevant materials, the public security organ shall make the following dispositions separately:

　　(1) If it believes that the transferred case materials are incomplete, it shall notify the transferring people's court or people's procuratorate to correct them within three days from the date of receipt of the relevant materials. It shall not refuse to accept the transferred case on the grounds that the materials are incomplete;

　　(2) If it believes that there are facts of a crime and it is necessary to pursue criminal responsibility, it shall decide whether to file a case within thirty days from the date of receipt of the relevant materials, and notify the transferring people's court or people's procuratorate;

　　(3) If it believes that there are facts of a crime, but it is not under its jurisdiction, it shall immediately report to the person in charge of the public security organ at or above the county level for approval, and transfer it to the organ with jurisdiction for handling within 24 hours, and inform the transferring people's court or people's procuratorate. For those who must take emergency measures, they shall first take emergency measures, then go through the formalities, and transfer them to the competent authority;

　　(4) If it believes that there are no facts of a crime, or the circumstances of the crime are obviously minor and it is not necessary to pursue criminal responsibility, or there are other circumstances under which criminal responsibility is not pursued according to law, it shall, with the approval of the person in charge of the public security organ at or above the county level, not file a case, and shall state the reasons, make a notice of not filing a case, and serve it on the transferring people's court or people's procuratorate within three days, and return the relevant materials.

Article 13   The people's procuratorate shall, in accordance with the law, supervise the criminal case filing of the public security organs.

　　If the people's court has an objection to the decision of the public security organ not to file a case, it may suggest that the people's procuratorate conduct supervision of the filing of the case.

Chapter IV Procedural Connection

Article 14   Where a people's court transfers a case suspected of false litigation crime to a public security organ, and the civil case must be based on the trial result of the relevant criminal case, it shall rule to suspend the litigation in accordance with the provisions of Item 5 of Paragraph 1 of Article 150 of the Civil Procedure Law. If the trial result of the criminal case does not affect the normal progress of the civil proceedings, the civil case shall continue to be tried.

Article 15   If a criminal case judgment finds that the act of a party to a civil lawsuit constitutes a crime of false litigation, and the relevant civil case is still in the process of trial or execution, the people's court that made the criminal judgment shall promptly inform the people's court that is trying or executing the civil case.

　　For civil judgments, rulings, and mediation statements that have become legally effective and conflict with the judgments in criminal cases of false litigation, the people's court shall promptly initiate trial supervision procedures in accordance with the law to correct them.

Article 16   Where a public security organ with jurisdiction independently files a case for investigation and handling of a criminal case of false litigation, it shall, within three days after filing the case, send a copy of the case filing decision and other legal documents and relevant materials to the people's court that is trying, executing, or making an effective judgment on the relevant civil case, and explain the reasons for filing the case, and simultaneously notify the people's procuratorate at the same level as the people's court handling the civil case. The people's court that is trying, executing, or making an effective judgment on the relevant civil case shall review it in accordance with the law, make a disposition in accordance with relevant regulations, and notify the public security organ of the disposition opinion in writing within thirty days from the date of receipt of the materials.

　　If, in the process of handling a criminal case, the public security organ discovers that a criminal suspect is also suspected of committing a crime of false litigation, it may handle it together. If it is necessary to arrest the criminal suspect, the public security organ investigating the case shall request the people's procuratorate at the same level to review and approve it; if it is necessary to file a public prosecution, the public security organ investigating the case shall transfer it to the people's procuratorate at the same level for review and decision.

Article 17   Where a public security organ with jurisdiction accepts a report, accusation, or tip-off from a party to a civil lawsuit, a litigation agent, other participants in the lawsuit, interested parties, other natural persons, legal persons, and non-legal person organizations, or discovers a suspicion of a crime of false litigation in the course of performing its duties, it may conduct investigation and verification work. With the approval of the person in charge of the public security organ at or above the county level, the public security organ may copy electronic volumes or consult, copy, and excerpt the civil litigation files of the people's court in accordance with relevant regulations, and the people's court shall cooperate.

　　If, in the process of handling a criminal case, the public security organ discovers that a criminal suspect is also suspected of committing a crime of false litigation, the provisions of the preceding paragraph shall apply.

Article 18 If the People's Procuratorate discovers that a legally effective judgment, ruling, or mediation statement was obtained by a party to a civil lawsuit through a false lawsuit, it shall, in accordance with Article 208, Paragraphs 1 and 2 of the Civil Procedure Law and relevant judicial interpretations, submit a re-trial proposal or protest to the People's Court.

Article 19 The People's Court shall handle civil cases for which the People's Procuratorate has filed a retrial proposal or protest in accordance with Article 18 of this Opinion in accordance with the provisions of the Civil Procedure Law and other laws and relevant judicial interpretations. If a retrial is decided in accordance with the trial supervision procedure and execution needs to be suspended, the execution of the original judgment, ruling, or mediation statement shall be suspended.

Article 20 During the process of handling civil litigation supervision cases, if the People's Procuratorate discovers that there is a suspected crime of false litigation, it may investigate and verify relevant information with the parties to the civil litigation or outsiders. If relevant units and individuals refuse to cooperate with the investigation and verification without justifiable reasons and obstruct civil litigation, the People's Procuratorate may suggest that the relevant People's Court handle the matter in accordance with Article 111, Paragraph 1, Item 5 of the Civil Procedure Law.

　　The People's Court shall cooperate with the People's Procuratorate in retrieving the civil litigation files of the People's Court in accordance with relevant regulations for civil litigation supervision cases involving suspected crimes of false litigation. If the needs of handling the case can be met by copying electronic files, consulting, copying, or excerpting, it is not necessary to retrieve the litigation files.

　　If the People's Procuratorate discovers that a civil litigation supervision case involves suspected crimes of false litigation, it may listen to the opinions of the original case handler of the People's Court.

Article 21 For civil cases involving suspected crimes of false litigation, the People's Court may investigate and collect evidence ex officio.

　　If the facts admitted by the parties are inconsistent with the facts investigated and verified ex officio by the People's Court and the People's Procuratorate and ascertained after trial, the People's Court shall not confirm them.

Chapter 5 Accountability

Article 22 The People's Court shall increase the application of compulsory measures such as fines and detentions against parties to civil litigation and other litigation participants who intentionally create or participate in false litigation criminal activities.

　　Before transferring relevant materials of a case to the public security organ, the People's Court may first impose fines and detentions on parties to civil litigation and other litigation participants who commit false litigation in accordance with the provisions of the Civil Procedure Law.

　　If the defendant in a false litigation criminal case is sentenced to a fine, fixed-term imprisonment, or criminal detention, the fine or detention already imposed by the People's Court in accordance with the provisions of the Civil Procedure Law shall be converted into the corresponding fine or term of imprisonment in accordance with the law.

Article 23 The People's Procuratorate may suggest that the People's Court take compulsory measures such as fines and detentions against parties to civil litigation and other litigation participants who intentionally create or participate in false litigation in accordance with the provisions of the Civil Procedure Law.

Article 24 Judicial officers who use their powers to participate in false litigation shall be severely punished in accordance with laws and regulations; if a crime is constituted, criminal responsibility shall be investigated in accordance with the law.

Article 25 Judicial administrative organs and relevant industry associations shall strengthen the education and management of lawyers, grassroots legal service workers, judicial appraisers, notaries, and arbitrators. If it is discovered that the above-mentioned personnel use their positions to participate in false litigation, administrative penalties or industry sanctions shall be imposed in accordance with regulations; if a crime is constituted, it shall be transferred to the judicial organ for handling in accordance with the law. Lawyers, grassroots legal service workers, judicial appraisers, notaries, and arbitrators who use their positions to participate in false litigation shall be held legally responsible in accordance with relevant regulations.

　　If the People's Court, the People's Procuratorate, or the public security organ discovers that a lawyer, a grassroots legal service worker, a judicial appraiser, a notary, or an arbitrator uses his position to participate in false litigation but does not constitute a crime, it may issue a written suggestion to the judicial administrative organ, the relevant industry association, or the unit where the above-mentioned personnel work. The judicial administrative organ, the relevant industry association, or the unit where the above-mentioned personnel work shall make a decision within three months from the date of receiving the written suggestion and give a written reply to the People's Court, the People's Procuratorate, or the public security organ that made the written suggestion.

Chapter 6 Collaboration Mechanism

Article 26 The People's Court, the People's Procuratorate, the public security organ, and the judicial administrative organ shall explore the establishment of a information sharing mechanism for judgment documents such as civil judgments, rulings, and mediation statements, as well as a data platform for information exchange, comprehensively use information technology to discover clues of illegal and criminal activities of false litigation, and gradually realize information and data sharing of illegal and criminal cases of false litigation.

Article 27 The People's Court, the People's Procuratorate, the public security organ, and the judicial administrative organ shall implement the responsibility system of "whoever enforces the law shall popularize the law", and enhance the whole society's awareness of preventing illegal and criminal activities of false litigation and deter illegal and criminal activities of false litigation through regular legal publicity, public release of typical cases of false litigation, and carrying out warning education.

Chapter 7 Supplementary Provisions

Article 28 The Higher People's Courts, People's Procuratorates, public security organs, and judicial administrative organs of each province, autonomous region, and municipality directly under the Central Government may formulate implementation rules based on the actual situation in their respective regions.

Article 29 This opinion shall be implemented from March 10, 2021.

　　                            Supreme People's Court  Supreme People's Procuratorate

　　                                                Ministry of Public Security  Ministry of Justice

　　                                                March 4, 2021