Study On The Tort Of Malicious Litigation

Malicious proceedings are deceptive in themselves,in which a party,knowing that he or she lacks a legitimate cause of action,does not participate in the proceedings on the grounds of self-admission and good faith,but nonetheless puts the other person in an unfavourable judicial position through the proceedings or the specific conduct of the proceedings,thereby undermining his or her legitimate interests.This not only seriously damages the legal rights and interests of others,disturbs the litigation order of the country,but also dissimilates the action and function of litigation,and damages the impartiality and authority of the judiciary.Based on the increasing trend of malicious lawsuit,how to effectively regulate malicious lawsuit infringement is a big problem that needs to be solved.However,there are few provisions on malicious action tort in tort law of our country.Although other substantive laws or procedural laws sometimes involve the adjustment of malicious action,it is difficult to make effective adjustment to malicious action tort because of its inoperability or inpracticality.Obviously,the adjustment of this problem in our country appears a kind of blank state in law,although the theoretical circle has discussed this problem,but it is also in the primary stage of the study,and has not formed a unified view.Taking malicious action as the research center,taking tort liability law as the basic starting point,through the malicious action background,regulatory significance and domestic and foreign literature review,the paper makes clear the feasibility and inevitability of constructing tort liability system in the civil code system.By identifying the concept of malicious prosecution and related easily confused and summarizing the basic types of malicious prosecution,this paper deeply analyzes the constituent elements of tort liability in malicious prosecution,and thus produces legislative reflection on the regulation of tort liability in malicious prosecution.Through the study of the legal system of several typical countries in Anglo-American law system and civil law system,it can draw lessons from its beneficial experience in the legal adjustment of malicious action infringement.Moreover,on the basis of the actual and concrete judicial environment,the author puts forward some concrete suggestions to construct the liability system of malicious lawsuit and tort in the tort system of our civil code.This paper is made up of six parts,including four chapters,introductory remarks and concluding remarks.The introduction part of the article mainly studies the background of the tort liability of malicious litigation.It not only analyzes the background of the topic and the significance of the topic,but also analyzes the different theories and practical results of malicious action in China and abroad,which can not only deepen our malicious litigation.The understanding of tort related problems can also provide references for the development of malicious litigation tort liability in China.The last part of the introduction explains the main research methods of this article.The second part of the article is the first chapter of this article,which is an overview of the tort liability of malicious litigation.First of all,the article identifies the legal concepts of malicious litigation and the related very confusing.The purpose is to clarify the legal concept of malicious litigation.Secondly,from the judicial and social angles,it discusses the causes of the formation of malicious litigation tort and its harmfulness,which is to emphasize the urgency and necessity of regulating the tort of malicious litigation.The third part of the article mainly discusses three basic types of malicious litigation and the constituent elements of malicious litigation tort liability.The constitutive requirements of the tort liability for malicious litigation are composed of four parts,namely,the subjective content,the enforcement of the illegal action,the consequences of the damage,the illegal act and the consequences of the damage.Through the detailed exposition of the constitutive requirements,the system of tort liability for malicious litigation is regulated in our country.Put forward the reflection of legislation.The fourth part of the article focuses on the investigation of tort liability of malicious litigation.That is to compare the tort liability of malicious litigation in Britain,the United States,Germany and France,and then draw three points of Enlightenment from the adjustment of foreign malicious litigation tort law to our country,that is,the mode of the regulation by the procedural law alone,to the formula of the regulation by the substantive law and the procedural law,and more emphasis on the rules of the substantive law.To adjust the tort action of malicious litigation into the legal system of tort liability law,and to maintain the symmetry between the realization of the responsibility of malicious litigation and the protection of the right of action of the perpetrator in the balance.The fifth part of the article is the legislative construction of the tort liability system of malicious litigation,which focuses on three aspects.First of all,the article expounds and analyzes the current legislation on the regulation of malicious litigation in China;secondly,the article makes a preliminary exploration of the malicious litigation regulation of the civil code,and compares and analyses the two proposals of the Chinese Academy of Social Sciences and the Renmin University of China.Finally,it is a few specific suggestions on the regulation of malicious litigation on the legislative level: the scope of the infringed person is extended to explain the extent of the infringed;the mental damage to the infringed should be included in the scope of damages;the compensation scope of the infringer's property loss includes the lawyer's expense;the judicial personnel can not become malicious.The abuse of lawsuits is a form of malicious litigation.The last part of the article is the conclusion.