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Research On The Tort Liability Of Malicious Litigation

Posted on:2013-04-19Degree:MasterType:Thesis
Country:ChinaCandidate:J L ZhaoFull Text:PDF
GTID:2246330374956613Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
With the development of society, the rule of law in our country continuous process, the awareness of the right of citizens is also growing, make litigation to be a legal weapons to protect their legitimate rights from infringement has become an important means. However, litigation has its inherent limitations, in practice, more and more people use this form against the legitimate interests of others. How to prevent and sanction such behavior, countries adopt different approaches. Common Law system have a depth study on malicious prosecution, they make nature-oriented provisions both in the substantive law and procedural law; Civil Law system seldom provide the behavior of malicious prosecution in substantive law, but only resolve disputes about malicious prosecution in real life by procedural law and jurisprudence. Specific to our country, there is no clearly provision about malicious prosecution whether In terms of substantive law or procedural law, the judge usually deal with similar cases can only be applied the basic principles of Civil law and general clause of Tort law. This situation of no law to abide not only creates problems for victim and judge cite the chapter and verse what the law says, but also allows malicious actors became more unscrupulously. So, system and in-depth research on malicious litigation can promote our theoretical and legislative developments better, and then serve the judicial practice for our country. This article investigates the malicious litigation behavior by using the methods of empirical analysis and comparative analysis, the purpose is to provide recommendations for our country to build legal system of tours liability of malicious litigation.Chapter one gives a general overview of the tours liability of malicious litigation. First, by listing the real-life case what happened in our life, to illustrate there are a lot of malicious litigation phenomenons in our country, then describe the connotation and types of malicious litigation, pointed out that it is absolutely necessary to regulate malicious litigation in law. Finally, described the present situation about our country’s malicious litigation.Chapter two is about the comparative analysis of the relevant provisions on malicious litigation between the civil law of Rome, France, Germany, Japan, Portugal, China Macao and the common law of the Britain, United States, as an important reference for studying the malicious litigation tort liability in China.Chapter three discusses the principle of culpability for malicious litigation tort liability. The author reasons by discussing from subjective requirement, objective behavior, harmful consequences,and causality, in order to discusses the composition of the malicious litigation tort liability. It is the key to maintain and look into the tort liability of malicious actors.Chapter four mainly focuses on the matters about malicious actors’ bearing liability. This part aims to discuss the legal subject, methods of bearing liability, the scope of damage of malicious litigation, pays close attention to research whether take punitive damages and attorneys’ fees into the scope of compensation for damages or not.Chapter five wants to build a system framework for tort liability of malicious litigation, to point out that we must pay special attention to some parts about malicious litigation, and design some provisions for regulating malicious litigation behaviors.To sum up, malicious litigation behaviors make countries and citizens a lot of damages, with serious social harm. We should regulate these behaviors, but our laws in this regard has a serious lag, can not effectively protect the legitimate interests of citizens. Therefore, the author recommends that our country should learn the advanced experience from common law countries, and combining Chinese idiographic practical circumstances, clear the meaning, type, formation, responsibility and other issues of malicious litigation, make a malicious litigation tort system suited to China’s actual conditions which can curb the occurrence of malicious litigation behavior and ultimately maintains social harmony and stability.
Keywords/Search Tags:Malicious litigation, Abuse of procedural, Tort liability, Damages
PDF Full Text Request
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