Malicious Prosecution Action And Its Precaution

Malicious prosecution is a kind of unlawful practice in which one party profits maliciously from the legal forms of lawsuit and damages others'benefits or seeks wrongful benefits for achieving some illegal intentions beyond legitimate intentions of lawsuit. It is an ill phenomenon in the domain of lawsuit. This kind of actions not only wears off the opposite party's manpower and financial resources, but also wastes the limited national judicial sources, meanwhile it violates the value of procedural law and damages greatly the justice of law. But presently, there are no specific provisions in our country's substantive law and procedural law, so it is hard to restrain the malicious prosecution in practice; and what's more, in the domain of procedural law, research on this problem is still in its infancy, and has an interminable argument. There are so many disagreements on the concept, the characters, the forms of malicious civil prosecution, etc. that we always confuse the malicious prosecution with similar concepts such as procedural legerdemain. So, studying this problem more systematically and deeply makes a positive sense on theory and practice, which helps us to better understand the idea and the want of our present civil lawsuit, and which impulses the improvement of our civil procedural law and the reformation of the system of civil lawsuit.We should start with fundamental issues for the study of malicious prosecution, so we should compare some interrelated concepts for determining the concept of malicious prosecution and summing up its present ordinary types. At the same time, we should pay attention to the institutional, social and cultural background of formation of malicious prosecution and to its relevant damages. Through a comparison between precaution measures of two genealogy of law against malicious prosecution and by using the studying fruits about the restraint of malicious prosecution in foreign countries, we can develop precaution measures against malicious prosecution. And the synthetic system of responsibility, which consists of responsibilities of procedural law and substantive law, is an effective means to restrain the malicious prosecution. So precaution measures against malicious prosecution should be considered from three aspects. Firstly, we should put emphasis on the improvement of present system, and make this system play a greater role against the malicious prosecution by strengthening appropriately functions of court, reforming rules of assumption of lawsuit costs and improving system of withdrawal of lawsuit; secondly, in order to accelerate the procedure of lawsuit, advance the efficiency of lawsuit and reduce finally the value of procedure of lawsuit which is profited maliciously, we should establish system of recompense of malicious prosecution, system of procedural fine and set up system of lawsuit assurance, procedure of lawsuit with small sum, according to the latest judicial practice and by technological means; thirdly, not only we should improve the mechanisms against malicious prosecution, but also we should pay attention to the development of culture of lawsuit of good faith. By combining both of these, we can build up a defending line against malicious prosecution.