Study On Tort Liability Of Malicious Prosecution

As issues emerging from judicature, Malicious Prosecution has not been formally accepted in Chinese law yet. However, it is absolutely necessary to limit malicious prosecution in law. By method of normative analysis, the dissertation discusses malicious prosecution in Anglo-American Law. Then it uses the method of empirical analysis to probe on features and problems in judicature of malicious prosecution in China. The dissertation aims to draw experience from Anglo-American law to the design of tort obligation institution of malicious prosecution in China, to provide an alternative solution on regulation of malicious prosecution. Introduction of the dissertation introduces the background, purpose, research status and research methods of study on tort liability of malicious prosecution.The body of the dissertation includes four parts:Chapter one is an overview of malicious prosecution. It mainly discusses the definition and origin of malicious prosecution, and makes an analysis of the conflicts between malicious prosecution and the fundamental values of law.Chapter two starts with the regulation on malicious prosecution in Civil Law, concludes it mainly procedural law and public law. It then discussed the tort liability of malicious prosecution in Anglo-American Law, specifically with its definition, classification, inscapes and compensation. In the end it makes a comparison between them, and discusses the importance of enacting tort liability of malicious prosecution. Chapter three probes the current situation and future regulation of malicious prosecution in China. It first summarizes the features of malicious prosecution and problems from judicature in China. Then the dissertation discusses the current law and the two versions of Draft Civil Code about regulation on malicious prosecution, reaches the conclusion of enacting tort liability to regulate malicious prosecution.Chapter four combines the former arguments and tries to design tort obligation institution of malicious prosecution in China. First it defines the definition, scope, classification, subject and criterion of malicious prosecution. Then it discusses inscapes of malicious prosecution such as subjective fault, offense, harming behavior, injures and causal relationship, from the angle of comparative law. Ultimately it gives suggestions on specific articles by integrating the former arguments and on judicial recommendations according to the problems arisen from judicature in China, hopes to have the Supreme People's Court enact specific criteria to regulate malicious prosecution, to reach the better regulation on malicious prosecution from both legislative and judicial perspective.Finally, there is a conclusion of the whole dissertation, which covers the major arguments discussed before.