The Regulation Of Civil Action And Prevention

With the development of China’s economy and the strengthening under the rule of law. to protect their own interest people began through litigation. However, in order to achieving an illegal purpose, some of people use proper proceedings to damage the interests of others. These bad manners not only damage the others’legitimate rights, against the value of the procedural law, but also waste judicial resources, severely trample justice image.At present, during the judicial practice, Judicial circle malicious litigation phenomenon is showing a growing trend. Therefore, how to regulate the civil litigation has become the urgent problem. Although "Civil Procedure Law" of China112and113defines the malicious collusion behavior and sanctions, the provisions of Article56the third person prescribes remedies to the malicious collusion type of litigation. But the malicious acts are diversity and complexity, and also the new provisions added three lack of specificity, which make it unable to play the punishment, remedy and prevention at the same time. It is difficult to form civil sanctions and criminal sanctions mate, substantive and procedural sanctions combining regulatory system. Therefore, this article starts with the concept of civil malicious litigation, nature, constituent elements and other aspects of analysis to explore the primary causes and the dangers of a civil lawsuit arising from malicious, and then analyzes the judicial practice of typical cases, proposes specific measures. Finally, by drawing on the experience of developed countries judicial, the ideas of regulation and prevention of malicious civil litigation are proposed.The thesis is divided into four chapters:The first chapter focuses on fundamental issues of malicious. First, define the concept of malicious litigation, and distinct with similar conceptual, following by an analysis of malicious nature and constitutive elements of civil litigation.The second chapter focuses on regulation of civil malicious litigation theories. Mainly includes two aspects of judicial restraint and balance, and coordination dynamic limit the right to appeal and the right to appeal judicial protection.The third chapter focuses on judicial practice in civil cases common types of malicious litigation, focusing on the case of judicial practice common types, such as: private lending category, class divorce cases, insolvency class, well-known trademarks kind of malicious lawsuit and proposed regulation and preventive measures such cases.The forth chapter discusses the regulation and prevention of civil legal countermeasures of malicious litigation. By studying the continental law system and Anglo-American law system of civil action to prevent and regulate the phenomenon of the malicious civil prosecution, combined with China’s judicial live, the appropriate regulatory measures are proposed.