Research On Malicious Prosecution

The paper analyzes that why malicious prosecution should be treated as a tort. Malicious prosecution violates the basic principle that rights should not be abused and principle of the constitution that one should not infringe social welfare and others' rights. And malicious prosecution also violates the good faith principle of civil law. Besides the civil law , malicious prosecution also acts a departure from the procedural law in exercising their rights.Although there have been numerous cases of malicious prosecution, there are no rules of malicious prosecution in China. So it is very important to learn from other countries. Malicious prosecution is actionable in tort if the proceedings are initiated both maliciously and without reasonable and probable cause and they are the malicious institution of legal proceedings against a person in accordance with the result that the other party suffers losses. As one of an essentially general violation, the elements of malicious prosecution tort liability are:the proceedings are initiated both maliciously and without reasonable and probable cause,the proceedings or negative obligation not to carry out actions that violate the law, causing damage to others and causal relationship between the offense and damage.As an academic society, the ultimate objective of law is to serve the community. Research on malicious prosecution is also to protect people's rights and interests , to exercise the rights in accordance with the law, to resolve disputes in society timely, and safeguarding social order and promoting social development. Although malicious prosecution occurs frequently and causes great damage, legislation has been lagged behind. So we should establish specific system in the civil law code in the future in order to forbid malicious prosecution. And according to the foreign experience and our practice, the paper designs a specific clause in order to solve this problem.