Rule On The Malicious Civil Prosecution

With the rapid development of China's economic and social progress, the aware of civil rights and the social function of law increases, the civil rights litigation as the ultimate means of achieving legal rights become more important. However, there are two sides of things. To protect the right of appeal, but not to be reasonable restrictions on the right here it is bound to the risk of abuse. Once the abuse to be a reality, it will get rise to malicious litigation which growing day after day. It is not only against specific legal rights and interests of legal subjects, but also disrupts the normal order of proceedings, and harms the justice and authority of law.This paper is to mainly study the basic problem about legal regulation of the malicious civil prosecution, and makes some recommendation. The main body of this paper consists four parts: The first part studies the basic meaning of the malicious civil prosecution, including the concept, nature, characteristics and elements of it. The second part shows phenomena and damages of the malicious civil prosecution in China, and focuses on analyzing its causes in order to prescribe the right medicine. The third part discusses the necessity of regulating the malicious prosecution and introduces the legal measures on civil law and common law in the major countries in order to build and perfect the regulation system in our country. In the fourth part, the author gives us rational suggestions on improving the legislations based on the judicial practice in China and the successful experiences in other countries and regions. It is from the macro to the micro, the general to the special codes, to build the concrete, scientific and rational system of regulation by using procedural and substantive law, civil and criminal regulation. In reviewing the prosecution, the court can filter down some malicious prosecution by denial or rejection. In the trial process, the court may directly refuse the claim or confirm the act invalid, or inform the interested parties to be directly involved in the proceedings for their rights. After the negative adjudication is given by the court, the victim or the public prosecution also can file a lawsuit for tort liability or other legal responsibility . If damage is a lesser, the court may directly give the offender fine, detention, apology such as procedural measures to regulate them; if losses exceeded costs of the legal proceedings, then the injured party can bring a lawsuit for tort damages to the other's civil liability; if having infringed the penal law, criminal responsibility shall be given.