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The Research On Malicious Litigation Law Regulation In The Civil Action

Posted on:2013-06-07Degree:MasterType:Thesis
Country:ChinaCandidate:J LiuFull Text:PDF
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Malicious prosecution is a legal action for illegal purposes. It carries on by violation ofthe principle of honesty and the lawsuit goal, or by exaggerated or fabricated legalrelations or legal facts. It uses legal means to seek illegal interests or intention to do illegalviolations to relative people. Malicious litigation is harmful. It not only infringes upon therights of the qualified people, but also destroys the normal social order and the authority ofthe law. It is a kind of behavior which must be regulated. However, the current laws ofChina do not definitely provide specific regulations of malicious prosecution. Instead, theyare mere provisions of principle. In recent years, the Supreme People’s Procuratorate andthe Supreme People’s Court have regulated some relevant contents with the forms of"Reply" or" Judicial interpretation". Particularly, the trial supervision procedure explanationof the Supreme People’s Court has provided Anwairen objection. It is documented that toprotect the rights of the outsiders is an important reformation. In judicial practice, differentcourts have also developed prevention and treatment measures of malicious litigationaccording to their actual situations. But the above approaches for effective regulation ofthe malicious lawsuit are far from enough. The main reason is that there is a serious lackof legislation of malicious litigation in China. Whether the malicious litigation constitutes acrime according to criminal law, and what kind of crime it is. It is not considered tort by civillaw, either. And the existing measures employed by the lawsuit can’t deter maliciouslitigation. Therefore a pressing matter at the moment is to solve the problem of vacancy oflegislation. According to foreign advanced legislation experiences, we should perfectlegislation and reform the trial mechanism in two aspects. On the one hand, we shouldperfect the legislation. Firstly, in the civil procedure law, the principle of honesty and credit,the penalty system and the procedure guarantee system should be established; thecharge dropped after the same subject of litigation lawsuit right reasonably should belimited. And the third lawsuit system and the pretrial procedure should be perfect.Secondly, in the substantive law, the malicious litigation has great social harm, so it isnecessary to identify it as criminal in criminal law. I have a suggestion of adding crime offraud in a lawsuit; In the civil law, since malicious litigation has all the elements of tort law,it’s necessary to recognize the malicious prosecution, and the victim should have therights to go to law to ask for the compensation. And the new tort of malicious false shouldbe added. To establish the malicious prosecution action damage compensation systemfor victims, there should be relief for the victims. On the other hand, the court systemshould be reformed in the trial mechanism to strengthen the judge’s initiative andcontrollability, and to improve judicial capacity, judicial reform, the reform of trialmanagement evaluation system and the performance appraisal system, establish caseinformation mechanism, be strict with review of the prosecution case. Additionally, payattention to strengthen the coordination and cooperation of the Public Security and the Procutatorate. With the above aspects, it is believed that the malicious litigation can beeffectively curbed.
Keywords/Search Tags:malicious litigation, civil action, legal regulation
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