On Tort Action Of Malicious Litigation

Malicious litigation is an abnormal phenomenon in litigation action. It refers to people using litigation procedure to puts forward civil action, criminal proceedings or abuse of proceedings without any proofs or reasonable reasons for his/her illegal profit or harming anyone. With the development of society and gradual enhancement of people's law awareness, litigation will be the final and most important way for people to protect themselves. Litigation should be an action that people protect their legal rights and interests through national judicial power. In recent years, however, more and more malicious litigation occurred in jurisdiction practice, which caused the injured person suffer illegal harm. Thus the social contradiction became more intense, good social orders being disturbed and the credibility of law and authority of trial institution being harmed, which caused great waste of national judicatory resources. There are many reasons for abuse use of malicious litigation, such as the current law education and propaganda don't pay enough attention to good faith and trust, the written laws and litigation systems have their disadvantages and ambiguous punishment to malicious litigant etc. How to regulate it? For litigation regulation, our nation still in the initial stage, therefore there has not formed any unanimous measure yet. This paper will have a research on malicious litigation by using foreign countries research achievements and point out that it will not only build the comprehensive regulation system in procedural law but also in substantive law.This paper will begin with the definition of malicious litigation, and by making analysis with relevant definitions to further expound its essence, and then have a deep analysis of its development to reveal the necessity of regulating it. By analyzing two different law systems that applied in different countries and the specific regulations our country took in dealing with malicious litigation from ancient time to now, it points out that we should draw on the experiences of Anglo-American law system. We should combine procedural law with substantive law, and make a series of regulations in procedural law to avoid malicious litigation occur. In the aspect of improving malicious litigation system, it puts forward building a law punishment system that combining civil law, criminal law and procedural law, and then gives its views on building of specific system.This paper includes introduction, body and conclusion. The body has four chapters.The first chapter will give a general introduction of malicious litigation. It expounds the definition and character of malicious litigation, and further analyses the reasons for abuse of malicious litigation, and then makes distinctions of relevant definitions.Chapter two is the comparison and analysis of Chinese and foreign malicious litigation systems. It compares and analyses relevant regulations of the Continental legal system, Anglo-American law system and ancient time law, modern law and present law of our country applied in malicious litigation, and puts forward that we should regulate malicious litigation by drawing on theories and experiences of Anglo-American law system and combine substantive law with procedural law.Chapter three is the affirmation and obligation taken of malicious litigation. As to the ineffective regulation of malicious litigation in our substantive law, it expounds the subject, subjective factor, the object, objective factor, consequences of harm and cause-and-effect relationship of tort liability of malicious litigation and points out that we should take malicious litigation as one type of tort liabilities to regulate individually, and analyses the scale, duration and way of taking tort liability of malicious litigation.Chapter four is the reflecting on building and improving our malicious litigation system. In this chapter, it comes up with building law-built punishment system that combining law of tort, criminal law with procedural law. In order to perfect our legal system of regulating malicious litigation, we should definitely stipulate in the civil substantive law that malicious litigation is one kind of civil tort liability action; we should build and improve systems relevant to malicious litigation in civil litigation and further definite the criminal liability of serious malicious litigation in criminal law.