中国民事伪证行为的刑法规制

Abstract

This study provides a systematic normative analysis of the criminal regulation of perjury in civil proceedings under Chinese law. Although Article 114 of the Civil Procedure Law stipulates that perjurious conduct in civil litigation may give rise to criminal liability, Articles 305 and 306 of the Criminal Law—which define the crimes of perjury and evidence fabrication by defense counsel and litigation representatives—apply exclusively to criminal proceedings. This results in a substantial legislative gap whereby serious acts of perjury in civil cases escape effective criminal sanctions. Moreover, Article 307, which criminalizes obstruction of testimony and assistance in destroying or fabricating evidence, fails to cover acts of evidence fabrication by civil litigants themselves and leaves unpunished witnesses who independently commit perjury without conspiring with any party. This legislative design sharply contrasts with jurisdictions such as South Korea, where perjury applies uniformly across all judicial proceedings, and Germany, which differentiates penalties according to whether testimony is given under oath. Some scholars have attempted to address litigant perjury through the “triangular fraud” theory within the context of property crimes. However, this approach conflates parties’ factual assertions with legally established facts and mistakenly equates judicial decisions with acts of property disposition constituting fraud. Drawing upon the inquisitorial features inherent in China’s civil procedure system, this study first establishes that courts bear the primary responsibility for examining evidence and ascertaining facts, while parties are not under an absolute obligation to present truthful evidence. In civil trials, judges are not bound by the parties’ assertions; they investigate facts ex officio and determine legal facts in accordance with procedural principles such as the allocation of the burden of proof. Based on this institutional framework, the paper argues that the protected legal interest violated by perjury is not property or individual rights but rather the state’s judicial order, thereby classifying perjury essentially as an offense against the administration of justice. A historical analysis of the evolution of protected legal interests in perjury further shows that the relocation of the offense—from the chapter on “Crimes Against Citizens’ Personal and Democratic Rights” in the 1979 Criminal Law to “Crimes Against the Administration of Public Order” in the 1997 revision—signifies both a shift in judicial philosophy from substantive justice to procedural justice and a fundamental reconceptualization of the nature of perjury. With respect to the constituent elements of civil perjury, the paper adopts a subjective approach to determining “falsity,” using as the criterion whether statements contradict the declarant’s memory and actual experience rather than objective truth. The witness’s duty is to reproduce perceived facts faithfully, not to engage in inference or evaluation; even statements that happen to coincide with objective reality undermine evidentiary integrity if they diverge from memory. Considering the diverse nature of civil disputes and varying degrees of rights infringement, the study proposes reclassifying perjury from an abstract endangerment offense to a result-based aggravated offense, incorporating “serious circumstances” as a constituent element to better reflect the criminal law principles of *ultima ratio* and proportionality. The subjective element should also be reformulated—from the current requirement of “intent to frame others or conceal criminal evidence” to “intent to obstruct the normal functioning of judicial organs”—to align more closely with the protected legal interest of judicial order. These legislative recommendations could be concretized by leveraging the witness guarantee mechanism introduced in the Supreme People’s Court’s 2019 *Evidence Regulations* and the 2022 *Interpretation of the Civil Procedure Law*, thereby implementing an integrated legislative model suited to China’s legal context. By proposing a criminal law framework that safeguards truth-finding and judicial integrity in civil proceedings, this research seeks to contribute to China’s ongoing judicial reform and the advancement of the rule of law.