In commercial activities, individuals or units often suffer personal injury or economic losses due to illegal activities, which leads to the legal need to initiate criminal charges to protect their rights.

 

However, individuals or units who have been harmed, whether for the purpose of recovering stolen goods or punishing crimes, can only effectively advance the criminal prosecution process by accurately analyzing the legal issues of the proposed charges before making criminal charges. This is the primary step in testing lawyers' "basic skills" in criminal prosecution business. When dealing with cases involving the intersection of criminal and civil law, it is particularly important to conduct careful analysis and judgment on criminal issues.

 

Based on our practical experience in handling criminal charges, we have summarized the research and judgment methods into the following three steps:

 

Step 1: Conduct a basic factual investigation

 

Generally speaking, cases that require the assistance of lawyers in criminal prosecution often have relatively complex factual and legal relationships, requiring us to use criminal prosecution as a starting point to help the parties sort out the basic facts. Based on practical experience, we have developed the following "General Checklist for Investigation of Basic Facts in Criminal Complaint Business" to grasp the facts related to criminal charges one by one in the standardized legal service process:

Basic Fact Investigation Checklist for Criminal Prosecution Business

 

1. Basic information of the victim (identity information, number of people, residence or nature of the victim's unit, location, industry, etc.)

2. Basic information of the accused (as above) and current status (loss of contact/evasion/arrest/resignation/cancellation, etc.)

3. Reasons and specific demands for criminal charges

4. Methods and means used for suspected criminal infringement

5. The time, location, and process of the infringement

6. The severity of the circumstances and consequences involved in the case

7. The profit situation of the accused or the value of the property suffered by the victim

8. Whether key evidence affecting conviction and sentencing has been formed or lost

9. Current developments (infringement still ongoing/suspended/accomplished, etc.)

10. Remedial measures and situation taken by the victim (civil prosecution/report/petition, etc.)

11. Other circumstances related to the constitutive requirements of the suspected charges of infringement

Step 2: Assess whether it may constitute a criminal offense

 

After completing the investigation of the above basic facts, we are basically able to have a comprehensive understanding of the situation of the case. At this point, we also need to evaluate whether the proposed charges constitute a criminal offense, in other words, we need to "establish a connection between the incident and the charges".

 

We take a criminal accusation case of "false litigation crime" that we actually handled as an example:

 

Summary of Case: In the case of a dispute over the protection of property rights of a certain logistics company, the use right of our company's operating land was illegally transferred to a third-party company. During the process of safeguarding rights, it was discovered that one of the company's shareholders had maliciously colluded with the land owner, fabricated a false lawsuit, and obtained an effective civil judgment. We also applied for compulsory execution to require our company to vacate the premises. We have developed and implemented diversified dispute resolution plans for reporting, filing complaints, and filing criminal charges, gradually confirming the fact that the other party has falsely filed a lawsuit, and encouraging the court to actively initiate a retrial of incorrect civil judgments. The other party voluntarily withdrew the lawsuit during the retrial stage, but the court still handed over the criminal clues of false litigation to the public security organs. Afterwards, the other party has been taken compulsory measures, and we have regained the land use rights involved in the case with a value of nearly 200 million.

 

In the above case, the reason why we were able to determine the use of "false litigation crime" to promote the retrial and criminal prosecution of civil cases is that we can "establish a connection between the litigation behavior and the false litigation crime".

 

Specifically, we need to first clarify the statement of the crime of "false litigation" in the Criminal Law of the People's Republic of China: "To file a civil lawsuit based on fabricated facts, which hinders judicial order or seriously infringes on the legitimate rights and interests of others." The Supreme Law and Supreme Procuratorate's "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of False Litigation" state that "to file a civil lawsuit based on fabricated facts There are clearer provisions on "obstructing judicial order", among which "causing people's courts to hold hearings and interfere with normal judicial activities" and "causing people's courts to make judgments based on fabricated facts" all belong to the situation of "obstructing judicial order".

 

Taking into account the above cases, we have extracted all the false statements made by both parties from the civil judgments formed by false litigation and the court records obtained in accordance with the law, and have reflected the true situation and corresponding evidence to the case handling judge, which is sufficient to prove that the case belongs to a "civil lawsuit filed with fabricated facts". Given that the court has already held a trial and made a civil judgment based on fabricated facts, it is self-evident that this case has met the criminal prosecution standard of "obstructing judicial order".

 

The following table may more intuitively demonstrate our logic of "building connections":

 

Crime of False Litigation Constituent elements	Expressive behavior
Subjective element: fraudulently obtaining judicial documents from national judicial organs	Civil lawsuit filed on x year, x month, x day
Objective requirement: fabricating facts	Making false statements (refining one by one)
Objective requirement: Causing the people's court to hold a trial and interfering with normal judicial activities	The trial of this case will be held on xx day of xx year
Objective requirement: Causing the people's court to make judgments based on fabricated facts	The first instance judgment was made on the day of X year, X month, and X year
Objective requirement: Serious infringement of the legitimate rights and interests of others	Causing malicious transfer of our company's land use rights worth 200 million yuan

 

Step 3: Feasibility of anticipating criminal charges  

 

Generally speaking, after evaluating and drawing the conclusion that there are criminal facts, can we suggest that the victim directly file a criminal complaint and subsequently hand it over to the investigation agency for investigation, arrest, and transfer for prosecution?

 

The answer is: not necessarily.

 

We usually need to conduct rigorous pre judgment to see if the case has the feasibility of criminal charges. The two most critical issues need to be properly addressed in order to help victims initiate criminal charges: firstly, the issue of evidence, and secondly, the issue of criminal risk.

 

The issue of evidence includes the authenticity of the evidence provided by the victim to the lawyer, the formation, collection, and loss of key evidence that affects conviction; The issue of criminal risk is often related to the judgment of whether the victim/accuser themselves has criminal risk. Due to their own interests, victims of criminal cases may deliberately avoid statements of facts that are unfavorable to them, insisting that the other party constitutes a crime, and hoping to hold the accused person accountable for criminal responsibility as soon as possible and with greater severity. Lawyers, as professionals, must calmly analyze and objectively evaluate the case. It is indeed necessary to make criminal charges before making them. There is no turning back arrow at the beginning, and criminal charges must not be carried out with a mentality of "suing and seeing".