Research On Abuse Of Right Of Action

The current spring of the judicial reform of our country emphasizes the maintenance and guarantee of the party's right of action. However,the mistake of exceeding the proper limits in righting a wrong is not the cost that our reform should pay. From the view of safeguarding party's legitimate rights and stability of social order, we should pay the attention to the abuse of right of action. In addition, under the background of the fact that our civil procedure system difficultly takes precautions against the party's abuse of right of action, theoretical research and judicial practices of the party's abuse of right of action are also under the state of the elementary degree. We need clarify the definition and nature of the party's abuse of right of action, combining our country's concrete condition, build up our right system to prevent and constraint the party's abuse of right of action in accord with our judicial culture. It is a urgent one. It is also the reason that this article tries to research on the party's abuse of right of action.This text is the first doctorial academic dissertation which researches on the party's abuse of the right of action.The author bases on the practice of China's civil procedure, takes the method of comparative study, maintains our civil procedure system should have two maior goals,one is to ensure the party's legal right of action,the other is to take precautions against the party's abuse of right of action. The right of action should have the proper limit and exercise in right. Regarding this as the basic point, combining the present the reform of civil procedure law, the authorexpounds overallly the definition of the party's abuse of right of action, and propose the structure of preventing system and contrainting system of the party's abuse of right of action.This text amounts to five chapters, about 180,000 words. In the first chapter " introduction ", the thesis has told that the meaning of the paper, which is the research necessity of our country's problem of the party's abuse of right of action. And the author gives the theory model which the thesis uses, that is the legal limit of exercising the right of action. Furthermore, the author discusses the method of the thesis's ,that is the comparative research approach, and the author explains why the thesis uses the phrase "the party's abuse of right of action".In the second chapter "The Definition of Litigant's Abuse of Right of Action With Comparative Research ", the author will use the comparative method to analyze the definition of abuse of right of action of west rule-of-law countries and the definition of our country. First, the author analyses the definition of abuse of right of action of Civil Law countries, such as France, Germany, Japan and etc, and she gives the characters of this definition. Civil Law countries' definition has two main characters: first, the definition of right of action has more importance on the definition of abuse of right of action; second, the rule of good faith also has more importance on the definition of Abuse of right of action. Second, the author analyses the definition of abuse of right of action of English-Saxon Law countries, such as the United States and the United Kingdom, and she also gives the characters of this definition. English-Saxon Law countries' definition has two main characters: first, Due Process has more importance on the definition of abuse of right of action; second, abuse of judicial procedure is connected with abuse of right of litigation. Furthermore, the author comparative the characters of definition of abuse of right litigation of civil law countries with the characters of definition of abuse of right of litigation of English-Saxon Law countries. Their difference provides us references and experiences. And the author analyses the current research on abuse of right of action in China, current research has not unified definition. The reason is that current research has great differences on definition method and definition view. There aretwo main views, one is definition by the method of right of action, the other is definition by the method of the rule of good faith. The varied theories of right of action induce the varied definitions of abuse of right of action, and also induce contradiction of each definition. The method of the rule of good faith pays more attention to litigant's subjective intention; however, it ignores the standard of right of action. Therefore, we can regard that, although the abuse of right of action has been taken seriously by current research, there are many shortcomings: first, varied theory views bring about lack of theory system of abuse of right of action; second, theory views lead to lack of whole-view of abuse of right of action. Therefore, we need re-define and construct the system of abuse of right of action, and on this basis. On this basis, the author regards that; we should draw on the experience of the Civil Law countries' definition method. Abuse of right of action is that, litigant obviously know he has no right of action, still bring suit with subjective fault; or though litigant has right of action, use his right with tort other's legal interest and subjective malice. The standard of deciding litigant abuse of right of action or not has three, that is Prozessfuhrungsrecht, Rechtsschutzinteresse, and the rule of good faith. The quality of abuse of right of action has double, one is that abuse of right of action is tort, the other is improper procedural acts.In the third chapter" Outward Experiences: Preventive Measures And Constraint", the article pays more attention to the experiences of preventing and constraining of abuse of right of action in west rule-of-law countries. Multi-dispute solutions and legal insurance are main systems to prevent abuse of right of action. The procedural constraint and the substantive constraint construct the system to constraint abuse of right of action. The procedural constraint concludes the system of procedural examination, the system of rights of forfeit, the system of responsible costs and the system of fee. And the substantive constraint of abuse of right of action is the system of tort compensation of abuse of right of action.In the fourth chapter" The Cause Why Abuse of Right of Action Happened in China", the article analyses the cause why abuse of right of action happened in China. The author regards that, there are two main causes. The first is outward cause, that is the over-extension of rights and misbalance of standard rule in the condition ofeconomical transformation, and irrational faculty of litigation tendency of dispute settlement. The second cause, that is the defects of our civil procedural system, although current civil procedural law has some effects of constraint of abuse of right of action, current constraint measures of abuse of right of action remain more defects because current measures cannot clearly realize the definition and quality of abuse of right of action.In the fifth chapter" The Construction of The System of Prevention And Constraint in Our Country", the article constrcuts the system of prevention and constraint of abuse of right of action in our country. The right definition and quality of abuse of right of action provide the background of preventing and constraining of abuse of right of action. Experiences of preventing and constraining abuse of right of action in west rule-of-law countries give us great references. The prevention system concludes ADR and the constrution of insurance against litigation. The constraint system concludes two main method, that is procedural construction and substantive construction.