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The Abuse Of Procedure Rights And Its Regulation

Posted on:2013-05-28Degree:MasterType:Thesis
Country:ChinaCandidate:Y P LiFull Text:PDF
GTID:2246330374456815Subject:Litigation
Abstract/Summary:PDF Full Text Request
With the social progress promoted by the economic development,China has established a relatively complete rights protection mechanism.The issue of abuse of rights which plagued the western countries havebegan and intensified in China, especially in the civil procedure. Delayand the high cost of litigation have raised growing concern which mostcaused by the abuse of procedure rights. While the abuse of procedurerights does not raise the same attention as malicious litigation in China.The purpose of this paper is tried to draw more concern to this issue andtake actions to regulate this issue.The paper is divided into five chapters:The first chapter set forth the concept of the abuse of procedure rights,in order to help people better defined this issue, also analyze the charactersof the abuse of procedure rights which are: first, the performer shall beparticipants in proceedings; second, the performer has the intent or grossnegligence; third, abuse of procedure rights damages the benefits of theother party and the state; fourth, the abuse act must be positive act; fifth,the abuse act achieve the unlawful purpose by use the civil procedure. Atlast, the author compare the similar concepts of the abuse of procedurerights, which are abuse the rights of action and malicious litigation.The second chapter deals with the manifestation of abuse ofprocedure rights and the harms caused by it. The manifestation are: first,abuse the right to sue and abuse the right to counterclaim; second, abuse ofthe right to appeal and the right to retrial; third, abuse of the right tochallenge jurisdiction; fourth, others. The harms caused by abuse ofprocedure rights of the author appear to be mainly concentrated in thefollowing areas: Against the interests of the relative parties, waste ofjudicial resources, damage the credibility of the justice.In chapter third, from the view of comparative law, review the theoretical development and the legislative practice of abuse of procedurerights in western countries. The experience of Britain, France, Spain andother countries will provide a reference for construction in China.In chapter four, the author discusses the following aspects of thetheoretical basis of the regulation of abuse of procedure rights and madesome suggestions about how to build the system of regulate the abuse ofprocedure rights in China. The theoretical basis includes: principle of goodfaith, principle of prohibit the abuse of rights, corrective justice theory.Through the exposition of the theoretical basis provide legitimacy toestablish a system of regulation of abuse of procedure rights. Thesuggestions are divided into three areas: law, alternative dispute resolutionand the autonomy of the legal profession. Abuse of procedure rights is asocial issue more than a legal issue; multi-areas system is needed to solvethis issue.
Keywords/Search Tags:abuse of procedure, rights malicious, litigation rightsbody
PDF Full Text Request
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