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目前,法律界对“诉讼欺诈”的研究呈现三个特点:(1)对于诉讼欺诈的概念,中外学者的看法不一,众说纷纭,甚至可以说几乎找不到统一的定义;(2)刑事法律研究同民事法律研究的对立分离;(3)立法研究和司法研究的不明晰。本文认为,诉讼欺诈属于新生法律现象,既危害了司法的权威公信,又侵犯了私法上的财产秩序。对该类行为之定性规制,应从法治整体予以把握,尤其是要解决刑法规范调整和民法规范调整之间的分工与协调。
At present, there are three characteristics of the research on “lawsuit fraud ” in the legal field: (1) Chinese and foreign scholars have different opinions on the concept of lawsuit fraud; they have different opinions and can hardly even find a unified definition; (2) The separation of criminal law research from civil law research; (3) the unclearness of legislative research and judicial research. This article argues that litigation fraud belongs to the new law phenomenon, which not only endangers the authority and credibility of the judiciary, but also violates the property order in the private law. The qualitative regulation of such behavior should be grasped from the rule of law as a whole, especially the division of labor and coordination between the regulation of criminal law and the regulation of civil law.