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Assume Tort Liability Of Malicious Litigation

Posted on:2016-06-21Degree:MasterType:Thesis
Country:ChinaCandidate:C H SunFull Text:PDF
GTID:2296330470954235Subject:Civil and Commercial Law
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Litigation is to resolve the dispute and contradictions. Litigation has got the fear of people for a long time. In recent years, however, appearing in the judicial practice, some people used litigation harm others, won the illegal interests. Therefore, the regulation of malicious litigation is imperative. The malicious lawsuit is one kind of tort, at present, our country law has no clear rules about their. In foreign laws, there are a variety of regulation of malicious prosecution action, our country should establish the liability of malicious prosecution sharing mechanism. This article disscusses the problems about the malicious litigation, puts forward some relevant suggestion.This paper consists of four parts. The first part from four aspects of malicious lawsuit behavior person, the victim, the scope and ways of expression in detail elaborated what is malicious litigation, and analyses the difference between the malicious litigation and litigation right abuse, abuse of procedural rights, litigation fraud. The basic second parts discusses the constituent elements of malicious litigation. Malicious litigation is essentially the general tort. But malicious litigation is different from general infringement. Mainly manifested in the offender is directly intentionally subjective fault shall, not ordinary negligence and gross negligence as its subjective constitutive requirements. Second, the offender to malicious harm behavior to start up, operation for the characteristics of the judicial process. The third part in reference to civil law and common law regulation on malicious litigation different approach, put forward our country should be in the legal system of the inner, combined with China’s specific national conditions, the appropriate use of foreign legislative experience and beneficial, two aspects should be the substantive law and procedural law to regulate malicious litigation perspective. The fourth part discusses the main problems of malicious litigation liability. Again, lawyers and other participants in the proceedings and the judiciary under special circumstances are likely to become a malicious prosecution responsibility main body. The author thinks that the damage compensation scope of malicious litigation should not including attorney fees and punitive damages. The author put forward the suggestion on regulation of malicious prosecution. The author thinks that our country should adopt substantive law and procedural law to regulation the malicious prosecution tort. Malicious prosecution tort liability system should be established in our country, and on the procedural law to improve the system of pre-trial preparation procedures and dropped.
Keywords/Search Tags:Malicious litigation, Tort liability, Damage compensation, Legalregulation
PDF Full Text Request
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