Study On The Regulation Of Malicious Civil Litigation

With the rapid development of modern society, more and more malicious lawsuit are becoming the tools to seek illegitimate interests, not only violated the legitimate rights and interests, but also undermines the court's normal working order and authority. Therefore, this article discusses five parts from the malicious actions to regulate this issue.First, an overview of malicious litigation. The definition of the malicious action on the connotation and extension, different scholars have different perspectives. However, their interpretation has its imperfections, drawing on the basis of interpretation, this article definites the malicious action as: the so-called bad faith lawsuits, is unfounded in fact the parties, the law deliberately brought no right of appeal to for their own improper benefit or harm the interests of others in the legal action, which includes malicious prosecution, malicious and bad faith counterclaims appeal. However, malicious litigation and abuse of rights and actions of fraud are different. Malicious actions not only violated China's "Constitution", "Civil Law" requirement, and in violation of " Code of Civil Procedure " ,provides that the essence of a substantive and procedural legal acts are not legitimate.Second, the reasons of studying malicious litigation. In the traditional pattern, the harm shown by malicious litigation are enormous. Malicious action litigation functions alienation, contrary to the purpose of litigation; malicious actions that the opposite party or a third person suffered unwarranted damage the legitimate interests; malicious action on scarce judicial resources and caused great waste, contrary to the principle of legal efficiency. Malicious action at this stage also presents new features: enhanced hidden malicious action; malicious purpose of those proceedings and against the legal interests are diversified; malicious litigation and intellectual property rights in the media more and more serious in these two areas . Therefore, the study of a malicious action becomes very necessary.Third, civil litigation Regulation malicious trace the origin and the guiding philosophy. Right of Action is a malicious action regulation theory. First of all malicious litigation resulting soil is a modern society the right to appeal the attention and protection. Second, the regulation is a prerequisite for malicious litigation the right to appeal is being abused, the abuse of the right to appeal the existence of constitutional guarantees and the right to appeal not only conflict but also a prerequisite for malicious litigation. Finally, the regulatory action of the deepest levels of malicious reasons should also be returned to the right not to abuse this idea up. Therefore, the establishment of regulations guiding philosophy of malicious litigation, we must also protect the right of appeal to the premise, another way to find other ways to regulate against malicious litigation. Threshold is too high because of the conditions for prosecution difficult problem caused by the prosecution, has been growing criticism. So, if further substantive review of the prosecution of a tight control on the citizens right to appeal would be greatly compromised, it must be another way to regulate it.Fourth, the perspective of comparative law regulating China malicious action on the preliminary ideas. The civil law procedure act is the main way to supplement the substantive law. Common law is to take both procedural and substantive way. Why is there two different results, This is a series of laws and two legal concepts and laws related to the different cultural traditions, and whether the sharp distinction between substantive and procedural law relating to, and whether more emphasis on the stability of the law. In comparison, this article made a choice: China should take substantive and procedural law both ways. First, the malicious nature of the response action for both its substantive and procedural law to regulate it. Second, malicious actions violated the interests of both determines should apply to both its substantive and procedural law to regulate it. Again, only the procedural and substantive law to the dual regulation of the malicious actions before and after the formation of the full constraints.V. Regulation of bad faith on our specific ideas for further proceedings. From long-term goal, China should be established in good faith in the principles of civil procedure. As one of the fundamental principles of civil law principle of good faith, has been more and more countries into the field of civil law, in civil law has been applied and developed. The introduction of the principle of good faith throughout the litigation stage could have played all kinds of behavior guidelines for the role. The principle of good faith can make up for the lag of the existing laws and rigidity. The principle of good faith in specific applications, including three constraints: constraints on the parties; constraints on judges and courts; of other participants in the proceedings of the constraints. Civil action to establish the principle of good faith with the long-term. Should gradually improve in the future and improve the legal system, increasing awareness of civil law, and there are a lot of good quality and well used to enrich the discretion of the judges of the judicial team, the principle of good faith then the introduction of civil procedure. From short-term goal, China's main substantive and procedural law should be two levels of the malicious action to regulate it. At the level of substantive law, not only in civil law proceedings to establish a malicious tort liability system, but also to additional criminal law crime of malicious litigation. In the process level, through fines and the withdrawal of the provisions prohibiting lawsuits against malicious conduct before and after regulation. For the prosecution by dismissing the abuse of the right to sue the manner regulation, because both the action shall be brought against malicious punishment of those who can not play a role, they easily lead to abuse of discretion to judges, so I do not think that one of its methods into the regulations. In addition, when necessary, inspection and supervision mechanisms can be introduced and allow the parties to a counterclaim. From practice, the setting up of a third party to the legal supervision of civil proceedings, not only outside help to resolve the dispute more clearly view the entire dispute resolution process, found the offense, the judge acts more conducive to strong oversight , the judge accepted the parties to avoid bribery and collusion damages the interests of another party. The author believes that malicious proceedings of the injured party should be allowed to appeal in the act on malicious litigation and filed a counterclaim, protect their legitimate rights and interests of a number of reasons, but the most important reason is to conduct timely relief to the injured party.