民事虚假诉讼识别的二元控制模式研究

摘要

The civil fraud litigation refers to the litigant behavior of the two parties to collude, fabricate facts and use the lawsuit procedure to infringe the legitimate rights and interests of the third party.The starting point and the key of preventing and controlling the fraud lawsuit is the identification of it, and the core of the recognition mechanism is the discretion of the judge.Doctrine of adversary hearing asks a judge to be passive and neutral, while the judicial policy asks the judge to identify fraud litigation actively.And this inner tension puts judges in a dilemma.The dual mode of conditional control and procedural control should be adopted so that the discretion of the judge is neither absent nor abused.The concrete suggestion is that, under the premise of adhering to the basic principle of adversary hearing, a professional judge should be established to identify the fraud litigation and persons whose rights are infringed by fraud litigation should be allowed to participate in the suit.%民事虚假诉讼是指双方当事人恶意串通、虚构事实、利用诉讼程序侵害案外人合法权益的诉讼行为.防治虚假诉讼的起点和关键是虚假诉讼的识别, 而识别机制的核心是法官的自由裁量权.要求法官消极中立的辩论主义诉讼体制与要求法官积极能动识别虚假诉讼的司法政策之间存在内在紧张关系, 导致法官行使自由裁量权进退失据.应采用条件控制与程序控制结合的二元模式, 保证法官的自由裁量权既不缺位又不滥用.具体建言是, 在坚持辩论主义基本原则的前提下, 设立识别虚假诉讼的专职法官, 并引入诈害防止参加制度.