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The Study On Legal System Of Tort Liability Of Malicious Litigation

Posted on:2011-09-25Degree:DoctorType:Dissertation
Country:ChinaCandidate:H S YuFull Text:PDF
GTID:1116360305473873Subject:Civil and Commercial Law
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Malicious prosecution is a common phenomenon of the modern society. Whether in China or abroad,this phenomenon is ubiquitous. From the historical origins, there were the relevant legal rules on malicious prosecution during the Roman Times. But, in ancient Rome period and before the modern times, malicious prosecution did not cause too much attention. To put great attention and action in theory, and provisions on the legislation is provided since the modern times.Our study of malicious prosecution starts later, accurately begins in recent years. Since the reform and opening up, the market economic develop constantly, people's interest consciousness continuously strengthened. Followed by unfair means for illegal benefits, even at malicious prosecution for means, infringe upon the lawful rights and interests of behavior has occurred. The reality of social and economic conditions decides the building and development of the legal system. Lots of the malicious cases require the theorists to pay some attention to the action of the malicious prosecution and should have the relevant rules for malicious prosecution. Otherwise, malicious actions will damage the lawful rights and interests of others, harms social justice, social and economic order.With this understanding as a starting point,there is a systematic research for the malicious prosecution, systematic research, in some of the theoretical expurgate vague understanding, and in the future legislation on design puts forward my opinions. This essay is overall situation, as far as possible avoiding the analysis based on the procedure law, but from the analysis of substantive law, based on the theory of tort liability law, litigation system for malicious comprehensively and systematically discussed. Moreover, China civil legislation process for malicious prosecution, lawmakers are also keen on tort liability system. Both scholars suggestion version and the draft legislature, all rule the tort liability system for malicious prosecution, this provides a legislation foundation for the paper's research and make the study more pragmatic and meaningful.From the perspective of specific content,the paper is divided into six parts, analyzing and studying the basic concepts and features of the malicious prosecution,on the basis of comparative,further analyzing the constitutions of malicious prosecution tort liability,and analyzing the malicious prosecution tort liability form. Finally, discussing the specific design of our malicious prosecution tort liability legal system. Specifically:As to this "introduction", I have arranged the main content of this topic:firstly, I have introduced the background and significance of the research. As present, the law of each country has researched the theory and system of malicious prosecution tort responsibility. Not only because malicious prosecution does often happen, and it does a threat pose to legitimate rights and interests of the clients, but also wasted the country's judicial resources, and damaged the judicial authority. In China, with respect to malicious prosecution of atort responsibility issues, although the academia has not pay enough attention to the hotspots as a theory before, solving the problem is helpful for regulating the increasing malicious prosecution phenomenon during the sue practice, especially the judicial resources in our country are limited at present, how to guide the citizens proceeding the benign litigation procedure with limited judicial resources preferable, utilizing the litigation procedure legally, protection of litigation order for the constructing harmonious society will produce positive effects. Secondly, I have reviewed the domestic and foreign research. Overall, the study of the international society of malicious prosecution is progressed than the domestic. Compared with the previous decades, in recent ten years, the academia has a deep research for the related theory of malicious prosecution. However, there are fewer achievements in systematic research about the malicious prosecution form the angle of tort liability law, and the existing achievements have not bond the theory with practice, moreover, it has not further research about the essential characteristics, the constitution of responsibility and the undertaking of responsibility about the malicious prosecution tort responsibility. Because of existing the above factors, the author choose this topic as my doctoral thesis, this paper will be based on the existing research and cleared up my study systematically, and I hope I can discuss with everyone happily. In this section, I have introduced the frame and system, the core points of research and the major research methods of this paper.The first chapter is about the comparative study of the malicious prosecution. Paper mainly analyze the legislation and theory on malicious prosecution. Using the method of comparison research, on the basis of summarizing the existing theory of malicious prosecution, through comparative analysis of the two countries show in their respective legislation regulating malicious prosecution, in one of the achievements, and compares its system, summarize the different characteristics. This paper also from microcosmic perspective analyze the representative two countries in defining the theory and legislation and case on malicious prosecution, on the basis of inducing the different countries' common features in malice inductive legal adjustment.The second chapter defines the connotation of malicious prosecution tort liability. In this part, mainly research malicious prosecution tort liability's connotation, characteristic,and discuss the feature of malicious prosecution action.First, the author of the malicious actions of related concepts were investigated, and thus give a scientific definition. In the article, the author also further gives determining criteria of malicious litigation tort liability.Definition of malicious actions tort liability on the analysis of existing research and under the premise of the shortcomings, and further defined the concept of malicious litigation and this infringement liability for research. The author believes that a malicious prosecution action is intentional the offender, the victim confined to adverse judicial position, or even get loss because the unjust verdict.Malicious tort litigation is a type of tort action is defined as intentionally caused malicious prosecution, cause damage to the opposite party shall bear civil liability. The paper also pointed out that the malicious actions on our academic theories of tort liability deficiencies, in theory, a malicious action on the connotation of a lack of in-depth study to define, and no extension of the malicious actions carried out to determine clear, ignoring the meaningful in theory that the definition of connotation and extension of malicious actions to this tort action regulation.Secondly, the paper discusses the traditional theories on the nature of malicious infringement litigation, and the conduct and analysis of the corresponding comments. Traditional civil law countries, legislation and the general theory of litigation is only a hindrance as malicious act litigation. The species identified are not conducive to the protection of legitimate rights and interests of victims, nor conducive to effective action to contain malicious behavior. Malicious motive is nothing but the interests of legal action is an improper attempt to obtain illegal benefits, only those from the improper deprivation of malicious interests can effectively stop this behavior.Finally, the paper discusses the difference between the tort of malicious litigation and other tort liability.This paper argues that malicious litigation actions not only violation a public law litigation disorderly behavior, but also a right to abuse and violation of the violations related to the legitimate interests of the parties. Act on malicious litigation must be set to adjust their rules accordingly. The reason is that firstly,acts of malicious legal action is malicious abuse of human rights on the proceedings;secondly,in violation of the malicious actions of any person shall by virtue of the law to achieve some illegal interest. Their behavior will lead to damage the interests of other people, so unfair social relations; Third, if allowed the occurrence of malicious legal action and not the interests of victims compensation, corrective justice would be violated. Finally in this section act on malicious litigation and the legal regulation of ideas, and requests "both substantive law and procedural law".The third chapter is about the malicious actions of tort factor in theory.Elements of theory of malicious litigation, construction litigation system is the theory of malicious premise and is the need of malicious prosecution responsibility to achieve.Rational design of the composition of malicious tort liability litigation,both theoretical significance and the significance of practice.From the theory side, as Tort Law Theory of Thinking Tools Elements of tort liability, it is the offender or the obligation of compensation for damages the person who bears responsibility for the necessary conditions.Tort Law for these conditions to be abstract, general,to-be vague and general to form a scientific and systematic Crime Theory. Tort law in the process of legal evolution, it was recognized that some constant elements of the tort liability of the composition plays a dominant role. First discovered and identified the consequences of these constant elements include damage, causation and harm behavior.From practice, the components of the malicious tort litigation is that tort liability is the condition of actor bearing and is to determine whether the act should bear tort liability standard.In general, malicious action, after the tort damage, it can not simply be based on the results of the violations were attributable to, but must be based on a certain standard to determine whether to establish responsibility of malicious people. Otherwise, the results are inevitably caught with the objective of accountability attribution quagmire. Malicious legal action in subjective is bad faith, and under the control of the will of a malicious prosecution or informant. This malicious is greater degree of intent,it is not only consistent with the subjective intent of the general conditions,but also to meet certain special conditions,including the need to pursue damage is directly the result of the occurrence of damage,the behavior violates the rules of prohibited or protected other people.Arising under the will of the act itself is unlawful, and damage the rights of others. Victims of malicious action by a party in many cases the damage is generally more complicated, with complex characteristics, which may include property damage, mental damage, or other legitimate exercise of the rights affected.The basic theory and practice of the sort of malicious tort litigation is also important to rational design of theory of malicious tort litigation elements.Only on the basis of the above theory can be scientifically established tort of malicious litigation Elements. Tort litigation system is malicious damage caused by people on the tort action for victims of a malicious party liable to the damage suffered by the law. Malicious actions on the victim side of the offender should be liable to damage suffered and need to meet the terms subjective and objective conditions to prove that the damage to others responsibility of fair and reasonable. Malicious tort litigation is a tort that has its own characteristics, it is through the balance of various interests and to be designed after consideration of the responsibility, so it has great flexibility and uncertainty. Elements with tort theory are able to greatly reduce this uncertainty, allowing a malicious tort litigation system to design more rational and scientific.Chapter four is about the form of malicious tort litigation. According the results of research, the object of hostile action against violations include two cases, one is against the right to appeal the case, the other is revising substantive rights, in two different cases, the realization of their responsibilities is different.Chapter five discuss how malicious tort litigation system be designed in legislation of tort law in China. In this section, the paper first discusses the general provisions of tort liability and types of design problems, then the construction of China's malicious actions tort liability system, and the system must be carefully considered and the microscopic. This part analyses the existing tort law in various draft and scholars have suggested that the proposed draft in terms of malicious prosecution tort liability and points out the disadvantages and put forward their own legislative proposals.I made my legislation model of malicious tort litigation is that the type of general terms and provisions of the model simultaneously.This paper argues that give the type statutory to the abuse of procedural rights, and detailed in each of the constitution and the liability form of the tort action in order to balance the interests of both parties.Conclusion part of the paper analyze the balance of the interest to the construction of malicious prosecution tort responsibility system and put forward the future basic path and goals of China "Tort Liability Act."...
Keywords/Search Tags:civil, malicious litigation, tort, liability, system construction
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