虚假诉讼行为入罪已两年，但理论和实务中仍存在诸多亟待解决问题。虚假诉讼罪保护法益是“正常的司法秩序”，是单一客体，“犯罪结果”不能等同于“法益侵害”，“侵害他人合法权益”是构成要件结果，虽然对法益的侵害可表现为犯罪结果，但不能根据犯罪结果反向确定保护法益；复杂客体观点和选择客体观点均存在不合理之处，“侵害他人合法权益”与“妨害司法秩序”并非选择关系和并列关系，而是一种包容关系，“侵害他人合法权益”必须且一定通过“妨害司法秩序”表现出来。以保护法益为指引，界定虚假诉讼罪客观构成要件为主动诉讼者以捏造事实提起民事诉讼，妨害司法秩序或者严重侵害他人合法权益；构成要件行为中，“捏造事实”应包括隐瞒事实，但应做严格的限制，仅限于足以改变主要民事权利义务关系的隐瞒事实；“提起”应是基于原告或与原告相当的诉讼身份提起，对于被动应诉者和案外人的虚构事实、伪造证据的行为，不能按照虚假诉讼罪处理；“民事诉讼”既包括审判程序和执行程序，也包括非讼程序；构成要件结果中，“司法秩序”包括两个方面的涵义，一是司法者司法行为、司法过程的有序化状态，二是司法者通过司法行为建立起的社会生活的有序化状态，行为人的行为只要对以上任一意义的司法秩序造成妨害，就符合虚假诉讼罪中的“妨害司法秩序” 的结果要件；“严重侵犯他人合法权益”应做宽泛的理解。鉴于虚假诉讼行为本身系民事诉讼行为，必须结合立案登记制度、举证时限制度等民事诉讼制度界定该罪的犯罪形态，就“着手”而言，更关注的是行为人的行为，应以行为人提起诉讼视为“着手”；就既遂标准而言，更关注的是受到行为人行为影响或作用后的司法行为、状态即司法秩序被妨害程度，应以“法院开始进入实体事实的实质审理时”为既遂标准。结合实务，具体分析行为人与对方当事人、其他诉讼参与人、法官的共犯问题；对双方没有通谋、一方主动实施帮助行为的情形，认为仅成立帮助者的片面帮助犯，行为人因缺乏主观违法性而不成立片面教唆犯。

It has been two years since the incrimination of false litigation, but there are still many problems to be solved in theory and practice. It is the normal judicial procedure that the false litigation crime protects the lawful interest, which is a projective object, the " criminal consequence" is not equal to "violation of lawful interest", "infringing on the lawful rights and interests" is the consequence of constitutive elements, the violation of the lawful interest may be displayed as criminal consequence, but it is not able to determine the lawful interests in a reverse way according to the criminal consequence.There are some irrational aspects in the views of complicated object and choosing object, i.e. the "infringing on the lawful rights and interests" and "disrupting the judicial procedure" is not the alternative relation and parallel relations, but it is a kind of containment relation, "infringing on the lawful rights and interests" must and has to be displayed in the way of the "violation of juridical procedure".Taking the protection of the lawful interest as the guidance, defining that the false litigation crime as objective constitutive elements.In the acts of constitutive elements, the "false accusation" should include concealment of facts, but should be strictly limited to conceal facts that are sufficient to change the relationship between the main civil rights and obligations;"Initiation" should be the initiation based on the plaintiff or the litigation status equivalent to the plaintiff, for the behavior of false accusation and the fabrication evidence of passive responder and the person not involved in the case, it cannot be handled in accordance with the false litigation crime; "Civil action" includes both the trial procedure and the execution procedure, as well as the non-litigation procedure; In the consequences of constitutive elements, the meaning of " judicial procedure " shall include two aspects: the first one is the ordering state of judicial behavior and judicial process of judicial person, The second one is that the judicial person establishes the ordering of social life state through judicial behavior, and it conforms to the consequence elements of "violation of judicial procedure" in the false litigation crime as long as the behavior of offender may cause the obstruction of judicial procedure in any of the above meanings;"Gross violations of the lawful rights and interests of others" should be understood in the broad way.Given the false litigation act itself is a civil lawsuit behavior, it must be combined with filing registration system, evidence time limit system etc. civil litigation system to define this crime pattern.In terms of "initiation", it is more focused on the behavior of the person, and it should take the offender to bring the law suit as an "initiation";In terms of accomplishment criteria, it pays more attention to judicial behavior which is affected by the offender behavior or after action, the state i.e. the obstruction degree of judicial procedure, it should take the "court begins to enter the substantial trial process of substantive fact" as the accomplishment criteria.In combination with legal practice, the author analyzes the accomplice problem of the offender and the opposite party, other litigants and judges.In the case that the two parties do not have the collusion and the one party actively implements the help behavior, it is believed that only the one-sided help of the helper can be set up, and the offender is not set up as an instigator because of the lack of subjective illegality.