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Tort Liability Of Malicious Litigation

Posted on:2013-03-05Degree:MasterType:Thesis
Country:ChinaCandidate:Z H KuangFull Text:PDF
GTID:2246330374998339Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Contrary to the importance of civil litigation consisting in the legitimate protection of rights, malicious act could result in the violation of a private party’s legitimate rights and the disturbance of formal litigation. Moreover, malicious act would pose danger in the effective usage of limited judicial resources, as well as harm the country’s authority in trial and contribute to the destruction of people’s faith in law. According to China’s current legislation, malicious act is not regarded as a tort action. This is to say that judicial authorities have no access to the available regulation, and hereby the emergence regard to malicious act is prevailing now. This Article looks briefly at, in future, the explicit legal governing upon malicious act as the Article’s central object. For this Article with a division of four parts, I further disccuss the civil liability arouse by malicious act.By introducing two typical cases, Part I of this Article, gives a brief overview of malicious act, followed by a more in depth categorical analysis regard to China’s malicious act. Part I also analyzes its causes and detrimental effects.Part II applies a method of comparative analysis to the studies of malicious act in China and other countries in categorization and conception. This Part also distinguishes malicious act form other similar conceptions and, in particular, compares malicious act to a litigation act in which a plaintiff loses. Based on the descriptions above, it firstly offers a reasonable concept of malicious act. Secondly, taking the stage of litigation as a standard to define malicious act, and suggest a widened application of malicious act to administration procedure law. Thirdly, Part II proposes a doctrine of Five Elements used as the criterion of civil liabilities for malicious act.Part III utilizes a positivism analytical method in the synthesis of three aspects of malicious act’s liability-subject, coverage and means. Detailed attention is given to the extension of subject into other participants, such as attorneys and judges in proceedings, and bringing mental compensation and punitive damages into the coverage of liability.In Part IV, I concluded by proposing contextually appropriate legal provisions under the analysis of China’s legislation, current judicial condition and scholars’legal proposals upon malicious act.
Keywords/Search Tags:malicious act, tort, civil liability
PDF Full Text Request
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