The Legal Regulation Of The Malicious Lawsuit

The Malicious Lawsuit, is that the actor informs, sues maliciously, or abuses civil proceedings without the factual basis or the legal reasons, in order to realize the improper purpose and damage the lawful rights and interests of others. Due to a variety of reasons ,especially the lack of legislation and the imperfect credit system ,the malicious lawsuit is fiercer. It makes the litigation function alienation, infringes the specific legal subject's legitimate rights and interests, wastes the precious judicial resources, and impacts and damages directly for the lawsuit value, judicial justice and judicial authority , at the same time, influences on the social order and stability.Therefore, the theoretical study that is how to effectively regulate the malicious lawsuit, at present ,is very significant. It bases on the malicious lawsuit as the research object, and mainly uses the standard analysis method, the comparative analysis and empirical analysis method. From the Angle of tort law , by analyzing relatively mature regulations on the malicious lawsuit in Anglo-American tort law, comparison and draw lessons from the legislation for relevant foreign experiences, combining the actual conditions in China, its aim is to establish the regulation system of punishment the malicious lawsuit and prevention the abuse rights meeting our own justice cultural background in China.Through typical cases in the foreword, let the reader have an intuitive understanding for the malicious lawsuit. The problems existing in regulating the malicious lawsuit at present are briefly described, so as to elicit the problem that the theoretical study is going to solve. The text is divided four chapters.The first chapter is the ontology—the analysis on basic problems of the malicious lawsuit. Four sections are divided: The first section is to introduce the etymology origin of malicious lawsuit; The second section is on the definition of the malicious lawsuit, including the consolidation of representative views and comparison of similar concepts; The third section analyzes harms and causes of the malicious lawsuit; The fourth section analyses the legal conflict of the regulation refraction, that is, how to come back in balance in protecting litigation rights and preventing abuse ?The second chapter is the existence of theory—extension of the malicious lawsuit . Three sections are introduced: The first section is the malicious information against others to initiate the criminal proceedings and the typical case ; The second section is the malicious litigation in civil action and the typical case; The third section is abusing procedures and the typical case.; The fourth section introduces the relationship between malicious lawsuits and administrative litigation, that is, the main research is whether the malicious lawsuit is suitable for administrative litigation procedure and the abuse quasi-judicial nature of the administrative procedure, or not?The third chapter is the comparison of theory—comparison the regulation for the malicious lawsuits overseas, Three sections are introduced: The first section is introduced the regulation for the malicious lawsuit of the Civil Law, including the law in France, Germany, Japan, Portugal, and China Macau ; The second section is introduced the regulation for the malicious lawsuit of the Common Law, that is, mainly analyzes the specific provisions for the malicious lawsuit in Restatement of the Law on tort; The third section is to compare the common law with the continental law on the legal regulation for the malicious lawsuits, and analyze and summarize it; The fourth section is briefly introduced on the concerned regulations for the malicious lawsuits in the international treaty.The fourth chapter is the regulation theory—the status quo of regulation and ideas on the malicious lawsuits. Three sections are introduced: The first section is a summary of the current on the legislative and judicial action for the malicious lawsuits; The second section is the idea of substantive regulations, mainly including two parts, the constitution and tort liability in civil law, and criminal offences and punishment on the regulation of the idea; The third section is the idea of procedural regulations, that is, to establish the principle"Good Faith On Procedure"and perfect the relevant procedure.In the end department this essay, it is the summary of main viewpoints, and to point out the shortcomings of the research. The author calls for more people to study the regulation of the tort liability for malicious lawsuits.