The Research On The Governance Of The Civil Litigation Proceedings Abuse

In recent years,under the background of economic and social double transformation,the situation of the civil procedure be abused gradually increased,litigation anomie phenomenon springing up.Frequent misuse of legal proceedings,severely disrupted the normal litigation order,damage the legitimate rights and interests of the other party or a third person,the impact of the social credit system,need to be study.This article attempts to rampant litigation behavior as the research object,through the analysis of its nature,grasp its rule,finally the diversity of the feasible regulation scheme is put forward,this is the meaning and purpose of this paper.Research method mainly has four kinds:one is the method of concept analysis,analysis of the concepts involved,determine its connotation and denotation;Second,the method of comparative analysis,the concept and system,involved in trying to through the analysis of theory and practice of continental law system and Anglo-American law system countries,making comparison and choice;Three is the empirical analysis method,through the selection of typical cases,to explain the phenomenon of rampant litigation consequences severity and type diversity;Four is the method of historical analysis,concept and system of involved traced back,evolution process,clarify the origin and background.Full text is composed of eight chapters,the first three chapter of introduction,rampant litigation behavior such as rampant litigation management model and limit carried on the thorough discussion,they are the basis of the research;The next five chapters,respectively from the procedure law,civil law,criminal law,legal liability,lawyers different perspectives,such as professional ethics of rampant litigation regulation put forward the detailed solution path.The details are arranged as following:The first chapter is introduction of the rampant litigation behavior,divided into four sections,the first starting from the essence and rule of rampant litigation phenomenon,the fragmentation of the concept of "rampant litigation" into "abuse of judicial proceeding".And clarify the abuse of litigation and the paradox of the concept of abuse of procedural rights,analyses the abuse of judicial proceedings and litigation,litigation rights abuse of concept subsumption and contained relationship.Further analysis in the second quarter rampant litigation and due process.Have "rampant litigation obligations inhibition" put forward by the parties,and the court is to balance between prohibit abuse of judicial proceedings and protect the litigation rights of the relationship.The third section analyzes the rampant litigation regulation and constitutional protection.The fourth section discusses the rampant litigation management consciousness of legal system.Prohibit abuse of litigation procedure also varies by law thinking,have to be distinguished between different litigation structure of governance mode.The second chapter is the rampant litigation regulation pattern.This chapter is divided into three sections,the first section analyzes the national two camps:to regulate the abuse of procedural rights in strictly prohibit abuse of procedural rights and emphasis on due process.The second section discusses the technical regulation of rampant litigation action,stress the important role of the elements of litigation.The third section discusses the concept and method of rampant litigation regulation.Concept should establish of synergy on litigation concept and to strengthen the honesty and credit principle.Regulation and the method of sanctions include through loss power annulled the lawsuit behavior,and through the retrial procedure overturned res judicata,etc..The third chapter is the rampant litigation regulation limits,divided into three sections,the first is the present situation of Chinese rampant litigation behavior,and summarizes the two characteristics of China's rampant litigation behavior.And expounds the abuse behavior?s social harm,and the limitations of legal regulation on it.In the second quarter is bringing the new dynamic.The third section discusses the rampant litigation behavior sanctions forbearance.Prohibit abuse of procedural rights regulation in fulfilling the new civil procedure law of our country,but at the same time should balance "protect the litigation rights" and "prohibit abuse of procedural rights" the relations between the two.The fourth chapter is the procedure law on the regulation.section 1,abuse from the result of subjective fault,damage and causal relationship between four aspects of the abuse of judicial proceedings.In the second quarter through the study of Germany,Japan,Britain,the United States and other countries,from about a breach of the civil lawsuit behavior and analysis on two aspects of compulsory measures.The third section discusses the sanctions method.In the fourth quarter,in this paper,the applicable functions and powers doctrine and the parties concerned.Court in the handler's flexibility and litigation procedure has a value judgment between abuse of power,whether to consider sanctions against the abuses constitute the proceedings and rectified.The fifth chapter is regulation in civil law.Three sections of this chapter,the first section expounds the meaning of civil law regulation.The second section discusses the foundation of the abuse of civil litigation for damages,the litigant requirement analysis constitute abuse of litigation damages,the cognizance of the scope of the abuse of litigation damages.The third section explores the constructing the abuse of litigation right infringement for damages of procedural problems such as aging,jurisdiction,as well as the cause of action design.Chapter 6 is about the criminal law on the regulation.There are 3 section in this chapter,the first for the function of the criminal law.Combed the rampant litigation in our country criminal law regulation of the latest progress and argument,this paper introduces the extraterritorial legislation experience,have an independent into sin,centered on fraud charges,said some crimes such as the core by the evidence.The necessity of rampant litigation criminal law in the second quarter.The third section with false litigation judicial application of the most in-depth analysis.Chapter 7 is professional ethics regulation.the first section analyzes the lawyer honesty and true obligations.The second section discusses the lawyer participation in the abuse of procedural rights.In the third quarter,from two aspects of internal and external lawyers abuse litigation agent was studied.The fourth section discusses specification paths of lawyers professional ethics in our country,and puts forward that inhibit rampant litigation lawyers and enhance the judicial credibility is one of China's regulatory focus.Chapter 8,the rules of judicial responsibility.The first section discusses the relationship between the judge professional ethics and rampant litigation regulation.The analysis of the abuse of judicial power in the second quarter,harm and cause,and regulating path,etc.The third section analyzes the disciplinary system to the judge,and put forward constructive suggestions for the perfection of the judge disciplinary system in China.