The Procedure Regulation Of Civil Malicious Lawsuits

Civil malicious lawsuit problem was said to be born from the civil trial in judicial practice, and the new theory research was gradually established from the summary of lots of reality case experiences and lessons. On the basis of it has big vacancy in legislation and increasing incidence in practice, this paper argues that it's just the right time to study on the program regulation of this problem.In the view of the widespread controversies about current concept of civil malicious lawsuit, the paper attempted to define its concept systematically first, including its connotation, denotation, manifestation and parts of the features in our certain judicial environment. The paper believes that to regulation the civil malicious lawsuit by our civil procedural law is decided by its necessity. This necessity is specific displays in four respects: program regulation adapts the international legislation trend; meets the needs of judicial practice in China; approaches the requests of the economy principle; comes up to the goal of setting up the judicial authority and credibility in our country. This part of our argument can be regarded as the declaration of the necessity of research, but also the topic outline of the main theoretical significance.The second part is the discussion about its theoretical basis before the specific procedures regulation design. This part is the premise elements of this paper. The paper argues civil litigation theory is equivalent to the'mean spirit axes of the legislation and practice during the evolution and development. Only the scheme or design which fits the basic theory would eventually goes well with the current practice, so as to realize the initial design goal. After demonstrated, some of the basic civil litigation theories can be defined as the solid theoretical foundation to the program regulation. Such as the Civil Litigation Teleology, the Theory of Civil Petition Right, and the Theory of Party's Procedural Act, the Theory of Res Judicata of Civil Judgments, the Theory of Procedural Liberty's Relativization and the usage of the Rule of Thumb and so on.As the third part, on the condition of the distinct concert, this paper summarizes the current law about the problem of civil malicious lawsuit in the civil and criminal substantive law and the civil procedure law field. In general, there hasn't been enough attention in China's legislation survey of civil malicious lawsuit problem. While the civil malicious lawsuit was identified as a sort of tort cases, the substantive law especially《The Law of Tort》has still been absence. And the study of the procedural law is even less for malicious lawsuit. This situation of legislation is clearly not enough to cope with the malicious lawsuits in our practice. And therefore, based on the analysis of the legislative situation, this paper summarized and concluded the problems and defects reflected from our regulation practice.The final part is the conclusion and the emphasis of the paper, this part focuses on how to improve the regulation of our civil malicious lawsuit, and divided the problem into two parts for advices, include the procedural principles and the important aspects in improving the procedural system.