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On The Procedural Regulation On The Civil Malicious Litigation

Posted on:2014-02-25Degree:MasterType:Thesis
Country:ChinaCandidate:L YangFull Text:PDF
GTID:2246330398479213Subject:Procedural Law
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With the rapid development of China’s economy, the law catches the express train of the economy, speeds up its process. Recently years, the number of litigations entering into people’s court is more and more, lawsuit has become an effective way to resolve the contradictions and disputes for people. But malicious litigation appears, especially in the civil and criminal field. This paper will focus on studying the civil malicious litigation.About the definition of civil malicious litigation, the professors and scholars, have their own views, I think civil malicious litigation is that one party deliberately brings a civil action without legal reason and factor evidence, intends to get their illegal benefits by using the justice administration of the court, damage the legitimate rights and interests of the other party or the Third Party, or in order to obtain some benefit, undermines the legitimate rights and interests of the other party or the Third Party. There are three characteristics of malicious civil cases, that is illegal, concealed and diversity damage. Civil malicious litigation contains four main constituent elements:deliberate mentality, the behavior of malicious litigation, the damage caused by the malicious behavior and the relationship of the two aspects.After discussing the basic problems of the civil malicious litigation, I introduce it from the legislative status and the judicial status. In terms of legislation, the Constitution and Civil Procedure Law have provisions in regulating the civil malicious litigation, for example, article112of civil procedural law, which is revised in2012shows, the malicious collusion appears between the two parties, attempt to infringe others’legitimate rights and interests through litigation, mediation, the court should reject the request, and according to the seriousness of the malicious litigation, the court have right to fine and detent the deliberate parties. If their action is crime, then criminal responsibility is undertaken by themselves. The Civil Procedure Law of China’s Taiwan and Macao regions made detailed provisions on this issue. In the trail, due to lack of specific legal basis for the judge to hear the case, there are no specific reference regulations to tell the judge how to compensate the victim and how to punish the malicious party. The harm caused by the malicious civil action is great, not only damages of the legitimate rights, the normal order of trial, distort the functions of the civil action, but also reduce people’s faith in the law and reduce the national jurisdiction of the authority.Civil malicious litigation is not an unique phenomenon in our country, it exists in civil law and common law countries. In those countries, some preventive and regulatory measures are made in the laws. Civil law countries take measures base on good faith principle, like taking civil penalty against malicious litigation behavior according to the court judgment, the victim sues the malicious party to the court for compensation, the good faith principle is stimulated in the civil procedural law, the malicious party shall bear the cost for the malicious action, also, the court shall decide that the malicious action is invalid. Common law countries take measures base on due process principle, the court shall decide that the malicious action is invalid, the true obligations of the both parties and the lawyers, the malicious party shall bear the cost for the malicious action, the victim sues the malicious party to the court for compensation.According to the judicial practice and basic theory in our country, and at the same time, learning from the civil law countries and common law countries about the measures on process to prevent and regulate the civil malicious, we can regulate the behavior from the following six aspects:improve the evidence exchange system, in order to effectively regulate the malicious litigation, the deliberate motive of the party is exposed timely, so it is necessary to improve this system; improve the existing withdrawal system, give the defendant the right to against the plaintiff’s withdrawal right, limit the right to apply for a second prosecution of the plaintiff; the court should strengthen to review the legality about the mediation cases; improve the right protection system for person who is not involved in the case, for this, we can learn from Japan’s system, improve the provisions of the third party in the civil procedural law, and improve the objection system of the person other than involved in the case; create the civil penalty system to punish the malicious party in economy; create the lawsuit guarantee system, because now, the punishment in the law is light, maybe we can achieve a preventive effect by creating this system.
Keywords/Search Tags:Civil Malicious Litigation, Evidence Exchange System, AppealRight, Withdrawal System
PDF Full Text Request
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