The Regulation Of Malicious Litigation

As the state litigious society developing, many cases of malicious litigationshowing a rising trend, and it has become China’s judicial practice which is gettingmore serious problem. It is a serious impact on the credibility of justice, interferingwith the normal trial order, waste of judicial resources. The legislators and thejudiciary practitioners have attention on this issue. With the the new "Civil ProceduralLaw" enacting of malicious litigation legal regulation, it is a big preliminaryprogress.Many scholars and legal experts and judicial workers put forward their ownviews and opinions on malicious litigation regulation problem. Malicious prosecutionis a malicious collusion between the two parties, one of the parties in the lawsuit orusing illegal means such as the fictional facts, fabricated evidence. It interfere thenormal judgment of the court’s activities, which make the mistake of court judgmentor mediation. Malicious litigation behavior persons ues "legal" the referee and theconciliation statement violates the victim’s legitimate rights and interests. Maliciouslitigation has four constitutive requirements. They are subjective intentional, behaviorof illegalityactor implementation of malicious lawsuit behavior resulting in harmfulconsequences and malicious litigation behavior and damage result having a causalrelationship.A legal system requires theoretical basis to support behind it. Maliciouslitigation regulation theory basis from principle of honesty and credibility, litigationright theory, the interest of litigation theory. Principle of honesty and credibility iswrited in the civil procedure law, which has a special value in terms of regulatingmalicious prosecution. The law gives litigious right is the right of every citizen, and isan effective means for maintaining the lawful rights and interests of the parties. Theexercise of the litigation should be correct, otherwise you will waste valuable judicialresources, more importantly infringe on the legitimate rights and interests of the otherparty or a third person. The interest is the basis of judgment of malicious prosecution, reflect ing the interest measure between both parties. For the plaintiff, it is based oncertain interests to court filed a civil lawsuit, requesting the court decision. In thisarticle, through the empirical analysis of the actual state of legislation in theregulation of malicious litigation and the problems in the judicial practice aresummarized and analyzed. The main reflected in the legislative situation in ourcountry. First, civil action increasingly rampant, but now there is no relevantsubstantive law rules only on the procedural law regulation in our country. And in thefield of the civil procedure law and regulation on malicious litigation is notcomprehensive, not finished, not into the system. Second, malicious litigationregulation terms are the civil procedure law with paragraph1of article13of theprinciple of good faith, under paragraph3of article56of the third person to cancel v.Rules, and article112article113and for the malicious collusion between the partiesthe rules of the damage the legitimate rights and interests of others. There are twoproblems with judicial practice, which are malicious litigation being difficult and thedamages of the victim.Based on the research of the comparative method, I summarise the civil lawcountries and common law countries and regions on malicious litigation regulationrules. The civil law countriesfor malicious prosecution use public law and theprocedural law and regulations, and also has a small number of rules in thesubstantive law. This is decided by special features of the civil law procedure.Because of the open legislative structure, common law countries make it more focuson to solve practical problems. Practice in a large number of malicious prosecutionmaking they realize, a single procedure regulation way and can not effectively curbthe occurrence of malicious prosecution. Tort law of common law countries, as apowerful tool to solve basic problems in real life, naturally becoming the program inthe field of regulation of malicious prosecution.Drawing lessons from civil law countries and common law countries about thelegislative and judicial experience of malicious litigation regulation. Combined withChinese actual conditions, I provide proposals to effectively regulate maliciousprosecution. Article112of the legislation of the civil procedure law. On legislation,the advices are addition to the112thof the civil procedure law, setting up a malicious litigation compensation system and improve the system of the third person cancel thesuit. The proposal on the judicial are to perfect the rules of court before the trial,strengthening the case review; the perfect pre-trial preparation procedure; setting upthe guarantee system of litigation, perfect the rules and regulations incourt,strengthening the right to judge, perfect the regulation in case the court judge,and constantly strengthen the procuratorate’s legal supervision.