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Research On The Tort Liability Of Malicious Prosecution

Posted on:2009-11-25Degree:MasterType:Thesis
Country:ChinaCandidate:L F LiFull Text:PDF
GTID:2166360275468788Subject:Law
Abstract/Summary:PDF Full Text Request
The malicious prosecution is only actionable in tort if the proceedings were initiated both maliciously and without reasonable and probable cause and they were the malicious institution of legal proceedings against a person . which is different with some similar concept such as abuse of procedural rights . we should borrow the states of common law to classify the malicious prosecution. It has three exhibitions which includes malicious prosecution, malicious abuse of civil proceedings and abuse of process.The malicious prosecution is an essentially general violation, the element of their tort liability are: the proceedings were initiated both maliciously and without reasonable and probable cause, the proceedings or negative obligation not to carry out actions that violate the law, Causes damage to others. Established causal relationship between the offense and damage results. Malicious prosecution in tort liability of the special on its own. First, the main responsibility, for the malicious acts should litigants, attorneys for the actors especially the lawyers, I think that should be jointly and severally liable, but not too broad scale. In view of the case of damage caused by judicial officers who can cover positions infringement, should not be included in this type of infringement; Secondly, the scope of damages, including legal fees of property damage and mental damages. Our current law only has some law principles about malicious prosecution and has not specific authority in substantive law. But according to judicial practice the rules on principle are different in application on malicious prosecution directly which is bad for protecting the people's right properly and largely, the author analyzes the rules about malicious prosecution in the two civil law code drifts, and we should establish specific system in the future civil law code in order to forbid malicious prosecution. So according to the foreign experience and our practice ,the author designs a specific clause in order to solve this problem. Legislative definition of malicious content, the main clearly malicious litigation, the three tort litigation reflects malicious form tort damages for malicious litigation to clarify the scope of this topic is the author of the innovative thinking.
Keywords/Search Tags:malicious prosecution, abuse of the right to appeal, tort liability, damage
PDF Full Text Request
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