Legal Regulation Of Civil Malicious Prosecution From The Perspective Of Procedural Law

The development of the civil society and the enhanced awareness of the rule of law notion have given birth to more individuals utilizing legal means to protect their legitimate rights. There are individuals, however, who would take advantage of the legislative loopholes caused by legal hysteresis and limitation to reap illegal benefits, to an extent that they would game the due process to enrich themselves unjustly, which has resulted in the birth of malicious prosecution.Not only does malicious prosecution, which is known as malicious use of process, exist in the civil suits, but also the criminal and administrative proceeding. In China, most of the malicious prosecution cases exist in civil proceeding and the number of cases appears to be rising. An unintended consequence is that malicious litigants manage to gain unjust benefits through due process. Such act damages the interest of the parties to and outside an action, disturbs the social order, wastes judicial resources and harms the authority of the judicial body.In some jurisdictions, malicious use of process is deemed as a special form of tort action. Some countries regulate it through the substantive law, and some through the procedural law. Therefore, it is advisable to look into both the substantive law and the procedural law to find a solution which can effectively regulate malicious litigation. In civil law jurisdictions, the proper use of process is. achieved through the regulation of civil procedural law. The procedural law, comparing with the substantive law, is more effective in regulating malicious prosecution in a sense that it can identify the act during the proceeding, and prevent it from success before the conclusion of the proceeding. With the promulgation of the new PRC Civil Procedure Law, it is first time ever that rules regarding the regulation of malicious prosecution are established in China. Though this represents a breakthrough taken by the legislative body, there still exist drawbacks and blind spots in the laws and regulations which fail to address the worsening reality of malicious litigation. In light of the above, this thesis examines the regulation of malicious prosecution from the perspective of procedural law, and hopefully, through the learning from the research of the Chinese scholars in this area and the advanced legislation in foreign jurisdictions, proposes suggestions which aim to improve the mechanism and rules that regulate malicious prosecution.At the beginning of this thesis is preface, which introduces the research background and the far-reaching implications which a systematic research of malicious prosecution may have in relation to the legislative development of the PRC Civil Procedure Law and the guidance to the judicial practice of civil adjudication.This thesis is consists of four chapters. The first chapter is the analysis of juridical logic in the civil malicious prosecution. The chapter takes a three-fold approach, i.e., legal concept analysis, the essential elements of the act, and the manifestation of the act, and defines malicious prosecution as an act of tort brought by one against whom a civil suit has been commenced in bad faith and a judgment has been entered into, for the purpose of obtaining unjust benefits or infringing the property or the psychology of the civil respondent. The act takes three typical forms, including malicious filing of an action, collusive lawsuit, and misuse of due process.The second chapter argues for the necessity of the regulation of malicious litigation through procedural law, and explains the damages of the act done to the property right, the dignity and freedom of the respondent, and the legal order of the society, compares the legislation of the major civil law jurisdictions with that of the common law jurisdictions in relation to the regulation of malicious litigation, and concludes that, on one hand, the civil law jurisdictions mainly rely on the procedural law to regulate malicious prosecution, and less on the substantive law; on the other, the civil law countries, in principle, do not classify malicious prosecution as a distinctive act of tort, whilst the common law countries prevailingly categorize it as a distinctive tort action.The third chapter reviews the legislative reality in China, and argues for the necessity of the regulation of malicious litigation through procedural law, and explains the damages of the act done to the property right, the dignity and freedom of the respondent, and the legal order of the society.