Study On Civil Malicious Litigation And Its Regulation

The development and prosperity of the economy and the intense competition in the market have stimulated people’s consciousness of seeking legal protection for rights. People’s litigation ideas have changed from being ashamed or tired of appeal to being good at litigation. At the same time, litigious or malicious litigation phenomenon increasingly grows and malicious civil action have bad influence on national law, the public power of the judiciary and citizen’s own rights and interests. In recent years, professionals from academia and judicial practice have made many efforts and accomplished some achievements on the issue. New "Civil Procedure Law" has made provisions on malicious civil action from perspectives of the basic principle, behavior subject, way of behaviors and treatment measures. But these theories and practical experiences are not mature enough to deal with the complex or difficult cases. Therefore, this thesis will discuss and research on civil malicious litigation and its regulation hoping to provide reference for the establishment and perfection of the Malicious Civil Litigation System in china. It will explain specifically from four chapters followed:The first chapter exposes basic issues on the malicious civil litigation action including the basic connotation of the malicious civil litigation, dialectical analysis of malicious litigation, different forms of malicious civil litigation action in reality, patterns of malicious civil action in different stage of the proceedings and the essence of the malicious civil prosecution to provide foundations for following discussion.The second chapter clarifies causes of the malicious civil action from the perspective of the social environment, the legislation system, the judicial system and litigation system itself etc. It finally reveals the harm of the malicious civil action.The third chapter mainly discusses the legal background of excluding the malicious civil action. The legal analysis of the background theory includes four basic theories namely litigation protection, the principle of honesty and credit, the process justice and the legalism of process. Besides, by referring to mature law system and judicial practices of Anglo-American law system and civil law system, this part analyses present law system and provisions and unifies China’s national conditions to conduct the comparative analysis and carried on reference to improve the national malicious civil action system.The fourth chapter mainly focuses on problems and defects in China’s current related law on the regulation of malicious civil action system to provide some recommendations and solutions. It expounds attentions in the process of improving the malicious civil action system and discusses the related solutions in the legislative, judicial and social fields; puts forward specific regulatory suggestions and solutions to regulate and constrain the malicious civil litigation action from different angles including prevention, punishment, legal relief and the judicial administrative organs etc. It emphasizes the establishment of accountability mechanisms to produce the source to prevent and put an end to the behavior of the malicious civil prosecution from the perspective of procedure law and entity method.