Research On Tort Liability For Abuse Of Litigation Rights

In the rule of law society,the exercise of litigation rights is an effective way for citizens to safeguard their legitimate rights and interests,but the exercise of any right has its limits.With the development of economy and the increase of civil disputes,the abuse of litigation rights appears and presents growth trend.In judicial practice,malicious litigation,false litigation and abuse of specific litigation rights are the main manifestations.The abuse of litigation rights not only disturbs the normal judicial order,damages the judicial authority and the credibility of the judiciary,but also seriously infringes upon the legitimate rights and interests of others.From the function of the tort law and the scope of protection,the fact of the damage to others and the useful exploration in the judicial practice,it is necessary and feasible for the abuse of litigation rights.On the basis of protecting the legitimate rights and interests of the citizens,we should achieve the joint efforts of the tort law and procedural law for the abuse of the litigation rights.On the basis of protecting the legitimate rights and interests of the citizens,we should achieve the joint efforts of the Tort and procedural law for the abuse of litigation rights.For abuse of litigation rights infringement responsibility regulation of our country,the legislation level mainly tort law provisions of the general terms and conditions and part of the abuse of litigation rights in the civil procedure law behavior of the damage compensation liability rules,the practice of the Supreme Court released some related judicial explanation and guidance.Through the retrieval and analysis of a large number of related refereeing documents,there exists the problem of identifying confusion in practice.First of all,there are still a few cases in which the courts refuse to accept the abuse of litigation rights.Secondly,in the case of the court's acceptance,there is no uniform standard for the determination of the tort liability of abusing litigation rights.Through the investigation of the tort liability regulation on the abuse of litigation rights outside the region,there are different development paths and methods in the regulation of the abuse of litigation rights in the two legal system countries.The civil law countries have the regulation of damages for abuse of litigation rights,but there is no systematic tort liability system.The abuse of litigation rights by the Anglo-American law system countries will be identified as an independent civil tort type,through a lot of jurisprudence gradually formed a clear form and relatively complete system of three kinds of behavior theory of constitutive requirements.Aiming at the problems of the abuse of litigation rights and the regulation of tort liability in our country at present,Combined with comparative law research and practical case studies,the following recommendations are put forward.First of all,it is clear about the constituent elements and identification standards of the tort liability of abuse of litigation rights.Abuse of litigation rights tort applies to the principle of fault liability.The particularity of its identification lies in the determination of subjective fault and the determination of damage facts.Due to the protection of citizens' litigation rights,the subjective fault in malicious litigation and false litigation should be called "malicious".The subjective fault of abuse of specific litigation rights is identified as deliberate or gross negligence.In practice,they are respectively examined as "the real duty" and "the duty of care" for the actor.Pure economic loss is the main content of abuse of litigation rights and infringement.From the perspective of the core of damage relief and the guidance of the Supreme Court,we should adopt a protective attitude.Secondly,it makes clear the orderly connection between the lawsuit and the lawsuit against the abuse of litigation rights.As for the type of abuse of litigation rights that produces wrong effective judgment,the original judgment shall be revoked through the trial supervision procedure,the third party's revocation action,etc.,and the infringement lawsuit shall be filed separately.Finally,in view of the loopholes and shortcomings of the legislation in the regulation of the right of abuse litigation rights,it is suggested to continue to use the general tort clauses of the tort law from a variety of realistic perspectives,but to supplement the general provisions through the formulation or improvement of the relevant judicial interpretations and the establishment of an independent cause of civil lawsuit.