Research On The Tort Liability Of Malicious Litigation

In recent years, awareness of the rights of citizens and the rule of law with the social development process of continuous improvement and enhancement, exercising the rights to safeguard their legitimate rights and interests is an important right remedies. However, the development of anything has its negative nature, litigation is no exception. Inherent limitations that some people use this form of litigation against the legitimate interests of others. Perpetrator to infringe upon the legitimate rights and interests for the purpose in the absence of factual basis and reasonable grounds in the case, civil or criminal proceedings instituted maliciously and abuse of rights in the proceedings, resulting in damage to the opposite party or another person’s behavior is malicious lawsuit. Frequent occurrence of malicious litigation has become law then in theory and practice community issues of common concern. Malicious lawsuit against the Constitution shall not abuse the rights specified in the basic principles of substantive law is a violation of the principle of good faith, but also a departure from the procedural law suit against the perpetrator exercising rights requirements. Moreover, the malicious conduct of litigation not only to the victims caused the damage, but also intensified social numerous conflicts, undermining public order and good morals, but also challenged the authority of law, wasting our country already had been strained and scarce judicial resources and disrupt the social order.Malicious litigation has become a common practice tort type, to have some legislation and practice were analyzed and summarized malicious litigation is an integral part of research. Two legal proceedings against malicious Legislation was two different routes, common law countries against malicious litigation issues more in-depth research in the substantive law and procedural law in both of its provisions have focused; while civil law countries but rarely to the substantive law in the form of malicious litigation conduct regulation, only to procedural law or jurisprudence way to solve real-life occurrence of malicious litigation. But our legislation, only in the new "Civil Law" in the malicious lawsuits were provided, and the July2010 implementation of the "Tort Liability Act" is not explicitly malicious tort litigation, which allows a malicious tort litigation in our country areas of civil substantive law has not yet been effective recognition. Such legislation, the shortcoming allow a malicious conduct of litigation can not be effectively discipline and containment of the legitimate interests of the lack of relief, social contradictions can not be effectively resolved, although procedural law but also on the abuse of the right to regulate some of the provisions, but no physical responsibility procedural regulation often only a mere formality. We should learn from common law countries, a useful research results, procedural law and substantive law to take parallel way, according to those who make malicious tort liability litigation.This article is based on the theoretical basis of tort law, tort liability system against malicious litigation conduct a comprehensive and systematic analysis. Specifically, the paper is divided into four parts, namely, the basic concepts of malicious litigation, features as well as other aspects of discrimination related concepts to be studied on the basis of two legal systems draw further comparative analysis of the composition of malicious tort litigation elements and tort liability in the form of malicious tort litigation for damages range-depth study.The first part of malicious litigation related concepts are analyzed, and gives the definition of science. Malicious litigation means:party knew or should have known that its proceedings improper purpose, while still sue to protect, so that the occurrence of improper action, to others acts that infringe upon the legitimate rights and interests. There are three main forms of its manifestation, that malicious civil, criminal and malicious abuse of process. Malicious litigation behavior is value fairness and justice, order value and efficiency value against. This section is based on malicious litigation hold, is to understand the key malicious tort litigation.The second part is about the malicious actions of Comparative Law. Malicious action against the relevant foreign legislation and doctrine to sort, summarize, comparative analysis of two legal systems in their respective norms malicious litigation outcomes analysis reveals that:common law countries imposed against malicious litigation dual substantive law and procedural law of regulation worth our reference.The third part discusses the malicious constituent elements of tort liability litigation. This paper argues that a malicious litigation actions not only violated the litigation order, but also a violation of the legitimate rights and interests of relevant parties infringement. Infringement proceedings against malicious Elements theoretical analysis is built on the premise of malicious litigation system, but also realize the need for tort liability; both theoretical significance and practical aspects of significance. Theory of tort law, the responsibility of the general elements include composing subjective fault, harm behaviors result of damage and causation. It is worth noting that malicious litigation tortfeasor subjective factors as "malicious" and the only direct intent does not include gross negligence.The fourth part of the lawsuit against malicious tort liability assumed for depth. Malicious bear tort liability litigation in having its own unique side: the main aspects of the main qualifications malicious litigants non-controversial, especially for party agents conducted a lawyer’s qualification situation analysis. In damages, including legal fees, including into the property and moral damage compensation.The author believes that China should learn from common law countries, the advanced experience, combined with China’s actual situation develop in line with national conditions and malicious tort litigation system, to curb the occurrence of acts of malicious litigation, and maintain social harmony and stability.