On The Tort Liability Of Civil Malicious Litigation

The new civil procedure law in the first paragraph of article thirteenth general"provisions of the civil procedure should follow the principle of honesty and credit",and added 112nd,113rd,giving legal negation and inflicting Judicial enforcement measures to the behavior.which is malicious collusion,through litigation.mediation and other ways to infringe upon the legitimate rights and interests or through litigation,arbitration,mediation and other ways to escape to fulfill the obligations of the legal document.Although the above provisions suppressed malicious acts of collusion and fictional facts to a great extent,alleviate the judicial resources because of malicious actions lead to a waste of the situation to some extent,maintain the effect of judicial public letter,but only the procedural aspects of prevention and control,not provide relief way of the malicious lawsuit on the entity rights,imbalance of litigation rights.And it can not be ignored strong publicity also triggered the case whirling,advantage of litigation exaggerate one-sided,and the public put the actions equal to anything in wrong,exclude and discriminate against the defendant,so that the individual legal knowledge and legal concept of imbalance,provides an opportunity for have an ulterior motive,encourage the laws of the malicious prosecutions wind.Therefore,in order to comprehensively regulate the malicious litigation behavior,and to curb the malicious litigation prone,frequent trend,this paper makes a discussion on malicious litigation.First,this article discusses the definition of malicious litigation,through the analysis of many scholars on the definition of malicious prosecution,limit the scope of the discussion in the field of civil malicious litigation,in combination with the different forms of civil malicious litigation behavior based on the practice,the definition of civil malicious litigation made.To define the starting point,this paper further analyzes the characteristics of malicious litigation,combined with the case,from the status of the implementation of the subject divide the civil malicious litigation into three types of false litigation,abuse of the right of action,delay in litigation.Secondly,in view of the civil malicious infringement of the legitimate rights and interests,disrupting the order of the proceedings,the waste of resources,reduce judicial efficiency,damage to the judicial authority,the civil malicious litigation to be quasi certainty is necessary.This paper draws on the definition of malicious litigation and compensation legislation in Macao,comprehensive civil law and common law all adjuste the malicious litigation as a tort,the theory circle of our country qualitativing civil malicious as tort is no controversy,and the effect of only program adjustment in practice is not obvious,qualitativing the civil malicious litigation as tort Into the scope of the substantive law adjustment has practical significance,it is concluded that the civil malicious lawsuit should be characterized as tort.Third,through the tort theory as the foundation,this article combined with typical cases,analysis specitiey:iie constitutive elements of the tort of civil malicious litigation,in-depth analysis of the special legal nature of ci vil malicious litigation.Fourth,this paper argues that the malicious civil litigation should make into the scope of adjustment of China's tort liability law,make a concrete analysis on liability principle,subject of liability,liability means,scope of damage compensation of the civil malicious litigation,put forward the civil malicious litigation behavior should apply the principle of fault liability,subject of responsibility is the plaintiff and the defendant as general acceptance,under special circumstances the legal agent,witnesses,expert witnesses and inspection personnel,the translator should be identified as common tort,shall not apply to the exclusion of liability in the manner of liability,the category of non compensation for mental damage compensation.