On 30 December 2016, we held a symposium to discuss the handling of sham litigation.

In a dispute arising out of a charter party, the defendant made three copies of an original crew payroll, altered the time of wage payment on the copies, and then submitted the three altered copies as originals. The aim was to deny the testimony given by three witnesses. Such act by the defendant abused judicial resources and hindered judicial processes. To regulate the handling of similar problems, we held a symposium mainly to discuss the following two issues: first, how to regulate the exercise of discretion over civil penalties? Second, what were the elements of a sham litigation offense?

The participants shared their opinions on the above issues and contributed a number of inspiring thoughts. For instance, the exercise of discretion over civil penalties should be based on full consideration of the detrimental social impact of the conduct and the financial capacity of the offender. Thoughts should also be given as to whether the forged evidence was important and critical, whether it played a decisive role in the finding of relevant facts, and whether courts of second instance might see the role of such evidence in fact-finding differently from courts of first instance. Decision on whether to impose penalty on a legal representative should depend on the role he or she played in the sham litigation. A charge of sham litigation was mainly against plaintiffs who fabricated facts to bring a civil action. Defendants would not be pressed this charge unless they colluded with the plaintiffs to bring an action in prejudice of a third person’s rights and interests. Sham litigation was a result-constituted instead of conduct-constituted offense. The constitution of the offense depended on the consequences of the sham litigation. The discretion should be exercised properly without any influence by preference for or aversion to the parties concerned or by their behaviour in any other cases.

After two hours of in-depth discussion, participants reached the following consensus: first, the exercise of discretion over penalty should take into account the detrimental effect of the conducts, the improper benefit they bring, their influence on judicial judgments, as well as the extent of subjective malice of the offenders and their financial capacity. Secondly, in civil litigation, defendants do not commit a sham litigation offense by presenting false evidence in their defence. Moreover, sham litigation offenses are result-constituted instead of conduct-constituted. The constitution of the offenses depend on the consequences of the conducts. Third, to better restrict sham litigation, penalties such as fines and detention should be imposed on offenders who forge or destroy important evidence in civil litigation; however, if the forged evidence is not important or influential on the fact-finding of the case, compulsory measures might not be necessary.