Civil Identify Malicious Litigation And Legal Regulation

Malicious litigation is a litigation in civil damage the interests of the state, the collective and individual behavior. Trend has intensified in recent years, this kind of behavior disturbs the normal order of judicial, make legitimate lawsuit behavior violate the interests of others. The cabin tails and harmfulness of civil malicious lawsuit phenomenon should arouse our attention, the our country present the evasion of the law but not to the strong, it cannot protect the legitimate rights and interests of victims, and run counter to the requirements of the rule of law society. The specific regulation measures could not specify out a big reason is that civil malicious lawsuit behavior is hard to identify in practice, strong concealment of this kind of behavior. This requires judicial workers in the normal judicial activities in the use of a variety of ways to identify it and regulation, this also is the purpose of this paper to create.This article focuses on malicious litigation in judicial practice, through the historical analysis, value analysis, case analysis, the research methods such as law, by analyzing the malicious lawsuit behavior what nature? Why this kind of behavior is illegal? Illegality is the negative evaluation of malicious litigation, why must it be in the form of legal regulation? Through in-depth analysis of specific cases in the judicial practice carries on the analysis of malicious litigation of illegality, combing how malicious litigation against the law.This paper takes the procedural law as the Angle, through the new revision of the civil procedure law comparing with the old method. Research of recognition and regulation of the civil action, the main research content is made up of three parts. Place for the innovation of this paper: first, combining the theory of tort law, judicial typical cases in China and major countries of two important legal systems of legislative cases, fully expounded how to identify the civil action; Second, from the concrete system of each section of civil litigation, and draw lessons from foreign related legislation example, consummates our country comprehensive argument path of malicious litigation civil procedural law regulation. Plans through specific case studies for the civil action is defined, the constitutive requirements, causes, characteristics, harm, differentiating, and its relevant concepts and analysis field inside and outside the relevant legislation and judicial practice, summarized the common types of malicious litigation and identification, the argument on the procedural law should avoid the pitfalls of rules and regulations, improve the comprehensive argument malicious litigation civil procedural law regulation in our country, in order to civil action of theoretical knowledge and practical solutions to help.The first part, from the academic debate, the meaning, characters analysis of malicious civil lawsuit, analyze the specific cases in the judicial practice carries on the analysis of malicious litigation of illegality. Malicious litigation and abuse of civil rights and litigation fraud to similar concepts, thus carries on the preliminary definition for civil malicious lawsuit behavior.The second part, the subjective and objective to malicious violations, harmful consequences and the causal relationship between the four elements as the Angle, illustrates how to identify malicious litigation, civil and sums up the various types of civil action recognition. Through the new revision of the civil procedure law comparing with the old method combing typical judicial cases, fully expounded how to recognize a civil action.Before and after the third part, by comparing the new civil procedure law enacted to malicious litigation legislation rules and regulations, and the continental law system and Anglo-American law system of major national（regional） regulation of civil action legislation example, fully demonstrates how malicious litigation in civil procedural law regulation in our country. By comparing the analysis of legal regulation of our country’s civil action.The fourth part, by comparing the existing laws under the background of legal regulation, put forward effective prevention of malicious prosecution and tackle is a great challenge to the current judicial work. Think should give full play to the initiative in the judicial practice, this paper take the case review stage of regulation, increased costs and strictly in the form of decision for review and judicial regulation, make malicious prosecution person at bay.This article will through the three most ideas of civil action system of induction and summary, and put forward corresponding legal regulation. Hope to the recognition of civil action and regulation play a role in the development.