On Malicious Civil Action

Misuse of process is the extreme phenomenon of change from "shameful lawsuit" to "graceful lawsuit" in social law awareness, it is an ill phenomenon in the lawsuit. But the highlighted legal values are to pursuit and achieve justice, these people offend the others' rights by means of misuse of process. Also this kind of actions not only wastes the limited national judicial sources, but also damages the justice of law. It is definitely a mock to the value of judicial justice.The main body of this paper consists three parts: The first part discusses the fundamental issues concerning misuse of process, analysis on the original concept of misuse of process, understanding of this concept in our country and comparison with interrelated concepts. On the basis of this, the writer points out why we should adopt concepts from UK-US laws to treat misuse of process as a tort. The second part mainly analyses the social and system background of misuse of process, and its relevant damages. In this part, through intensive analysis on changes of people's attitude toward lawsuit and law awareness, combining the conflicts in the transformation of society and shortcomings of laws, the writer gives us the reasons of misuse of process, its damages to the achievement of justice and operation of civil procedural systems. The third part mainly discusses the precaution measures against misuse of process, it is the most important part of this paper. In this part, the writer makes a comparison among precautions measures against misuse of process in different countries. On basis of this, the writer suggests that we should adopt foreign laws to improve the shortcomings in our law systems. So we can adopt substantive law and procedural law against misuse of process. The writer holds views that the measures against misuse of process should be diverse. First, it should treat misuse of process as a special tort. So, misuse of process has to be dealt with through tort injury compensation mechanisms in substantive laws. Second, in order to precautions come first, we have to depend on procedural laws to keep a lookout against misuse of process. And, not only we should improve the mechanisms against misuse of process, but also we should pay attention to the construction of moral awareness. Combining both of these, a defending line can be built up against misuse of process.