On The Identification Of Malicious Litigation And Regulation

Malicious Litigation is a tort whose purpose is to damage the other people's personal rights and property rights by inventing legal facts, using judicial procedures, forging evidences in a fault lawsuit. Malicious litigation wastes a lot of judicial resources, and makes judicial authority and judicial fairness reduced. How can we regulate malicious litigation? There is no answer in the current law in our country. So, we must create legal system to regulate malicious litigation. In the substantive law, the malicious litigation includes four parts: one, the actors have maliciousness subjectively; second, malicious behaviors were implemented objectively; third, it makes damage in facts; fourth, there is cause-and-effect relationship between the behaviors and the result. So, malicious litigation should be realized as a tort the substantive law. Malicious litigation can be divided into six types, abusing of the right to sue, abusing of the defensive right, abusing of judicial proceeding, false lawsuits, mendacious suit and repeated suit. Malicious litigation should be recognized as a behavior abusing actio and litigation rights. In the concrete suit, malicious litigation represents several kinds, just as malicious civil prosecution, malicious criminal delating, false lawsuits, false mediation, and so on.To regulate malicious litigation, we can base on two considerations. On substantive law, we can define it as a tort, create institution of punishment and compensation, and improve the criminal law. On procedural law, we must regulate the balance between protecting the legitimate litigious right and regulation of malicious litigation by using self-control rule. To regulate malicious litigation, we should create related system which can prevent and reduce malicious litigation, such as the risk-warning-reporting system in the phrase of registration, special investigation system in the pre-trial preparing phrase, special focus system in the phrase of trial and special restrictions in closing phrase, and so on. Besides, we should create the system of examining and approving before appeal and give the interested party the rights of rescission.