The Boundary Between Regulation Of Civil Malicious Litigation And Protection Of Litigation Rights

Malicious litigation has increasingly arisen in Chinese judicial practice as the promotion of the registration system for case docket and the lag of law compared to social reality,as well as the interaction of other various factors,contributing to not only the severe waste of judicial resources but also the degradation of judicial credibility and authority.By the analysis of the theory of civil malicious litigation and civil right of action,as well as the introduction of model cases,it is discovered that no consensus on the definition of malicious litigation has reached in China,and the understanding on the boundary between the control and regulation of malicious litigation and the protection of civil right of action is far from clear,which affects the effective regulation of civil malicious litigation.From the perspective of restricting the abuse of rights,through theoretical research,analysis,comparison,induction and other methods,combined with the proposed definition of malicious prosecution,the author holds that the regulation of Civil Malicious Prosecution is,to a certain extent,a restriction on the right of action,and the main problems of current civil malicious litigation lie in the flaws of pre-trial procedures,the lack of damage compensation system,and the difficulty of identifying the subjectivity of "malice",thus from which the thinking on civil malicious litigation arises.As for the defectiveness of the pre-trial procedure system and the damage compensation system,namely the choice of the regulatory methods,it is considered that it is necessary to stand on the improvement of the system of opening before court,the constitution of preventive elements,and the strengthening of punishment.Considering that the subjectivity of "malice" is difficult to identify and the exercise of the right of action,it is discovered that the control and regulation of civil malicious litigation is not meant to weaken the right to action,but to enhance its legitimate exercise.Based on subjective faults,it is divided into "malice" and "bona fide".Malicious litigation is essentially a manifestation of the exercise of the right to action in "malice",and it is stipulated the exercise of the right to action is based on legitimacy or "bona fide".At last,discussing the boundary of the protection of right of action,it is concluded that this can be determined by constructing constitutional theory about it.