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Study On The Problems Of Civil Malicious Litigation

Posted on:2015-02-14Degree:MasterType:Thesis
Country:ChinaCandidate:J J ChangFull Text:PDF
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Since China’s reform and opening up people’s concept of the rule of law and legal consciousness have been a lot of ascension, civil lawsuits in increasing number of cases in case involving the content is becoming more and more complex, the phenomenon of civil action has said. Although the latest amendment to the civil procedure law of the People’s Republic of China law on the emergence of new legal issues, but for malicious prosecution is still inadequate, the relevant provisions of the lack of substantive law and procedural laws. In order to prevent the occurrence of malicious litigation, we should take positive and effective legal measures to deal with, so as to continuously promote the development of the rule of law modernization in China. Specifically in this master thesis is divided into four chapters:The first chapter mainly discusses the overview of malicious litigation in civil litigation, including the use of legal rules to define the connotation of the malicious litigation first, action is defined as a comprehensive view of scholars both at home and abroad will be a person in subjective deliberately, in order to harm others or seek illegal interests, without reasonable cause and based on facts and civil litigation, criminal lawsuit abuse of litigation procedure, make the damage behavior of others, then the malicious litigation of the civil procedure law and litigation, civil litigation fraud abuse related concepts such as comparative analysis, compare the difference between the two, finally, further expounds the common types of malicious civil action and its identification, more in-depth analysis of the nature of malicious prosecution.The second chapter mainly discusses the present situation, the origin of malicious litigation and the necessity of regulation, including, for example in this paper, the form of malicious prosecution in our country and the current situation of legislation, and then expounds the cause of malicious litigation, including the action of the two sides, the limitation of the lag of legislation and law, jurisdiction of passivity and procedural, lack of legal authority, the lack of good faith system restriction, etc., and finally from the investigation mechanism, the lack of sanctions, social harmfulness expound the necessity of regulating malicious prosecution.The third chapter mainly discusses the scope of the relevant provisions of the civil action features and the enlightenment of our country, including, for example, this paper expounds the continental law system of Roman law, Germany, Japan and the legislation on malicious prosecution, Anglo-American law system and then from the perspective of comparative law, analyzes the scope of the characteristics of the malicious lawsuit system of rules and regulations, and enlightenment on regulating malicious prosecution in our country.The fourth chapter mainly discusses the building contain malicious litigation system in China, including the basic idea of contain malicious prosecution in our country should strengthen the legislation and justice, integrity rules regulation of malicious litigation system, and then expounds the basic principles of regulating malicious prosecution, and finally put forward concrete proposals against malicious litigation, only through the judicial and legislative way to solve it is not enough, also need to put an end to, from the malicious litigation occurs at the root of the between different application phase within the legal system, establishing reasonable allocation system.
Keywords/Search Tags:Civil litigation, Malicious litigation, Procedural law
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