Analysis Of Malicious Litigation

Litigation is a basic right of legal system gives citizens for requesting the state tosafeguard their legitimate rights and interests by law suiting. With the rule of law hasgained and the consciousness of law of the citizens gradually raised, people are from“anti-litigation”,“shame suit” in the past to safeguard their legitimate rights andinterests by law suiting, but it appears some phenomenon such as false litigation,abuse of procedural rights, transform lawsuit qualifications and creates actionelements at the same time. Especially GanJianhua Was Prosecuted Case and ZhouMou and Ye Mou Sue Themselves Case happened in recent years, because peoplepay more attention to malicious prosecution. Since2000, China law community andpractical departments have gradually investigated and researched of maliciouslawsuit and have obtained certain researching results, and proposed maliciouslitigation into civil code several times. But about the growing legal problem ofmalicious prosecution, our country is still in the condition of the theory-researchedlagging, legislation-loss and limited-response of legal practice. To solve the problemof malicious litigation, is not only the legal security thinking question of restrictingmalicious litigation, but also the double meanings of conceptions of law andjuridical practice.This article through verifying the concept of malicious litigation, integration theresearch situation of legal scholars and practical departments, and through theanalysis of the case, and after a general investigation and the research of the relatedconcepts of malicious litigation, extend the legislation thoughts of malicious lawsuit.About the analysis of malicious prosecution, this paper analyzes the intension andextension of the relate concepts, and emphasize the legal concepts should be basedon facts and behavior, not on the basis of subjective intention. In order to furtherillustrate that malicious litigation is an manifestation of abuse of litigation right andfalse litigation, this paper gets through anglicizing several typical cases, andinterprets malicious litigation cannot exist as a separate legal concept. About thephenomenon of malicious litigation in practice, to take regulatory measures tomalicious litigation, we cannot think about the problem from point to area, and weshould grasp the phenomenon and essence of the malicious lawsuit on the whole. Look from the reality situation of malicious lawsuit, malicious litigationis multiple in the prosperous area of private economy, and malicious litigation oftenhas the characteristics of the conspiracy sex and not easy to be found, this makes themalicious lawsuit behavior become abnormal to “normal” in the civil lawsuit. Afterthe further discuss about malicious litigation, we found that the concept of maliciouslitigation actually has a certain ambiguity, and it can be used as a term in judicialwork in order to complete the expressive tasks of special circumstances, but it isused within a certain range.