The Study On The Abuse Of The Right Of Action

With the social development and the transfer of Chinese individual's the right view, litigation has been the method to solve the dispute which people are familiar with. Accordingly, the issue of the abuse of processes has manifested itself gradually. Socialism harmony society should be a society that the right can not be infringed and a society that right should be protected efficiently, and even the society that the right should not be abused which can not meet the standard of socialism harmony society. The abuse of processes has great harmfulness to the society which not only infringes the specified bodies'lawful right and be a waste of judicial resources, but also harms the proper right of action and dashes the judicial justice and power.The abuse of the right of action refers to perform his/her act of procedure based on misuse of scope of right for the purpose of infringing other parties'legal right, so this article defines the abuse of the right of action as the parties has the subjective intent which means that being fully aware of having no right to sue or lacking the reliable evidence, but perform his/her right of action for the purpose of infringing others'lawful right, in order to unlawful litigation interests which cause harmfulness to others and society. The abuse of the right of action can be divided into the abuse of the title to sue, the abuse of the right of appeal and the abuse of the right of the petition for retrial and the abuse of the title to sue is the most important one. The abuse of the right appears the subject applying sue is improper, the lack of the object of process and lack of reasonable fact and reliance. The abuse of the right of action causes harms to the innocent citizens, legal persons and other organizations, destroys the social order and wastes the precious judicial resources. On the one side, the abuse of the right of the action is a kind of behaviors which unproperly use the right rented by the constitution law and other laws. On the other side, the abuse of the right of the action usually means the infringement of the defendants'legal right, so the abuse of the right of the action is kind of infringement act. The standards for determining the abuse of the right of action can be divided into the principles standards and constitutive requirements standards. The former include good faith principle, due process principle and public order principle and the later include the subjective intent of the actors and the behavior standards.Continent law countries and common law countries have different retional concept of litigation. However, the rules of the two laws concerning the abuse of the right of the action hamper nothing for the reference value. The definition of the right of action and the requirements of the right of action is meaningful to the definition of the abuse of the right of action. The good faith principle and its descendent principles have been generally used by other countries in order to soleve the issue of the abuse of the right of action. In China, the there is no provisions about the abuse of the right of the action in the civil procedure which is one of the basic procedure laws, and there is no provisions about what the abuse of the right of act is and what the accurate standards are which is the regret for Chinese legislation.No matter from the point of the constitution status of the right of action, and the purpose of civil procedure and legal value, or even the limitition of procedure resources and the constructon of socialism harmony society, Chinese legislation should have regulations for the behavior of performing the unlawful right of action. To improve the systems about the abuse of the right of action, should be based on the principles of good faith principles, the rational concepts of due procedure and the rational concept of forbidding abuse of the right, regulate it from the procedure law and material law respectively and punish some behaviors accordingly.