Study On The Tort Of Malicious Litigation

With the rapid development of society, the cultural qualities of the people is increasing than before, awareness of rights has awakened, our traditional " peaceful is better","Ending of litigation," is under attacked, the concept of Fight for rights" deeply roots in everyone heart. However, in the awareness of their rights awakening, at the same time, people use litigation to protect their interests, some people are making use of litigation such a cloak of legitimacy to gain an unfair advantage, infringement the legitimate rights and interests of others. Thus, Theorists pay enough attention to the tort of the malicious litigation, they consider that it is very necessary to regulate the behaviors and phenomenon. The academic does not have a uniform definition of the concept of malicious litigation, in this article the author start form on the meaning of "malicious" defined and then put forward the concept of malicious litigation. Malicious litigation refers to that is the behavior infringement that the perpetrator knew or should have known that their behavior is not lawful or proper legal basis, for the purpose to seek illegitimate interests, do not enjoy the right to appeal the case, deliberately filed criminal information, civil litigation, or abuse of right in the proceedings, causing others property or mental damage.This article the author uses the comparative method, logical analysis, semantic analysis and other research methods to a more in-depth study of malicious litigation infringement. The first part introduces our current legislative status quo in the malicious litigation, related regulations, as well as the contrast of the current law on malicious litigation infringement defects, in order to have a system of our current legislation and regulations on malicious litigation knowledge and understanding; The second part, the main write malicious litigation illegal analyzed, through its illegality analysis, let us know how it is illegal, this regulatory reasons; The third part is malicious litigation identified, to determine malicious litigation epitaxial connotation, the specific type, constituent elements to the subjective state of mind of the tort of malicious litigation directly intentional awareness of the tort of malicious litigation type accurately identify malicious litigation through the analysis of the constituent elements for the judiciary to provide standards and basis; The third part is mainly identified malicious litigation concept, determined malicious litigation epitaxial connotations specific type of constituent elements, understood malicious infringement litigation subjective state of mind is directly intentional, recognized the type of malicious litigation infringement, at the same time analyzed the constituent elements in order to identify accurately malicious litigation and provide criteria, evidence for the judiciary; The fourth part, the author mainly study the main responsibility of the malicious litigation infringement and damages range infringement, the research purpose is to give victims legal remedies, safeguard their legitimate rights and interests, and Who should be responsible for his behavior infringement, and what extent commitment to make the victim relief can be carried out, essentially safeguarding the legitimate rights and interests of the victim; The last part of the core of the article, the author raise the malicious litigation infringement legislative proposals by analyzing the existing legal laws and expert advice issued, major recommendations of the following aspects:to define the malicious litigation connotation, clear the responsible body, divide into the specific types, determine the compensation range, write malicious lawsuit as a class of specific infringement into "Tort Liability Act" etc., malicious litigation is fixed in form of law, improve the "Tort Liability Act".