Rules And Regulations Of Litigation Right Abuse

All rights have the possibility of being abused. Litigation, which is the basis forcivil lawsuit is no exception. Early in our country legal system construction, wemainly focus on the protection of citizens to exercise their litigation rights andencourage them to solve their disputes through litigation. But with the deepening ofthe process of China’s legal system, the citizens become so familiar with the litigationthat in the field of civil procedure there appears a phenomenon of the abuse of theright during the judicial practice. The abuse of litigation makes an undignified retreatfrom the aim of civil litigation, which is also possible to affect the rule of faith formedin China’s legal construction. Especially that the behavior has posed a great threat topeople’s legal rights, and leads to a great deal of limited judicial resources of thecountry. But there still exists a blank about the certain regulations and relevantprovisions in the existing legal system of China about the abuse of litigation. On theother hand, the concept, identification, and classification of right abuses is alsocontroversial in terms of the theorists. Therefore, this thesis attempts to construct thelegal system of China’s regulation about litigation on the basis of an analyze of theconcepts of rights abuse.This thesis is divided into five sections described as below:The first chapter is to define the abuse of civil litigation right theoretically. Thecontinental law system is to define the right of appeal from the civil subject, severalaspects of subjective malice and the principle of honesty and credit abuse. And thecountries of Anglo-American law system are mainly based on the due process, theabuse of litigation procedure, rules and the inside of the proceedings to the definitionof abuse of procedural rights. This paper will abuse of litigious right is defined as incivil litigation, the parties have subjective fault, not in accordance with therequirements of the exercise of litigation proceedings, or while the right exerciseelements, but contrary to the actions of the implementation of the principle of goodfaith.The second chapter mainly demonstrates the types of appeal rights abuse.Litigious right abuse in judicial practice in the specific manifestations varied,classification of academia is complex, there are the more common malicious litigation,fraudulent litigation, repeat the procedure, rash action.The third chapter is on the analysis of the necessity and theoretical basis ofregulating the abuse of civil litigation. In order to guarantee the citizen’s right toappeal, to achieve the purpose of civil litigation and save litigation resources must bethe regulation of the civil litigation right abuse, provides the theoretical basis for theprinciple of honesty and credit and the principle of prohibition of abuse of rights butalso for the regulation of abuse of litigious rights.In the fourth chapter, the author mainly makes a comparison between the east and west and summarize from different foreign legislations for the regulation of theabuse of action right, especially from the perspective of civil law system. Thetreatment of right abuse behavior and the basis of each are not identical, France is theabuse of litigation penalties, Japan based on good faith principle on the prosecutiondismissed, Germany provides the obligation of truthfulness in the proceedings, theAnglo-American law system is mainly based on the citizen’s legitimate rights andinterests are violated, the infringer shall be an infringement claims.The fifth chapter is to offer some proposed ideas to the misuse of litigationaccording to the legal regulation system construction which is based on thecontemporary phase of China. In our existing legal provisions of the principle of goodfaith, with relevant regulations on the false lawsuit, the lawsuit the withdraw of thethird person, but also not comprehensive enough, in order to protect the right of actionas the premise, from the procedural law and the substantive law in two aspects, toconstruct the regulation system of China’s abuse of procedural rights.