Research On The Constitutive Requirements Of Tort Damages In Civil Proceedings

Establishing a system of tort in civil proceedings is not only the dual needs of rights and interests relief and procedural rights protection,but also the practical needs of regulating litigation infringement.The assumption of tort liability by the infringer in civil litigation does not lack legal basis.Torts in civil proceedings are numerous and complex,and it is necessary to study the types.On the premise of defining the types of torts in civil proceedings,we should analyze the requirements of fault,damage and causation.The premise of classification is to determine the scope of tort in civil proceedings.The differences in the scope of tort in litigation are concentrated in two aspects: one is whether to include the situation that meets the conditions for exercising the right of action but is abused;The second is whether to include malicious collusive false litigation.Both cases should be included and the court’s wrongful acts of authority are not within the scope of tort in civil litigation.The problem of the existing classification is that the significance of various acts in tort law has not been thoroughly studied,or has not been consciously and clearly elaborated.This paper believes that there are two important criteria for the classification: first,whether there is legal or factual basis for exercising the right to initiate proceedings(including the right to sue and the right to counterclaim).The second is whether there is malicious collusion to completely eliminate the litigation confrontation structure.According to the above classification factors,there are three types of tort in civil proceedings: false litigation,malicious litigation and abuse of litigation rights.The focus of dispute on the elements of fault of tort in civil proceedings is accepting or rejecting recklessness.It may be enlightening to examine the reasons for existing viewpoints in the academic community and the considerations of recklessness tort liability in existing norms.The inclusion of recklessness is conducive to urging the perpetrator to carefully implement the litigation act,and can balance the interests between the litigant and those affected by the act.Recklessness and intent have a certain degree of homogeneity.Incorporating recklessness into the subjective elements of tort in civil proceedings is in accordance with the consistency of China’s legal system,and has theoretical and empirical basis.Therefore,the fault element of civil litigation infringement except for false litigation should include recklessness.With regard to the criteria for determining causation,although there are differences between “direct causation” and “equivalent causation” in the literature,in the judicial practice of civil litigation infringement in China,both have added legal value measurement.Regarding the determination of causation,this paper studies the cases with claims for breach of contract losses,and finds that the determination of causation is related to the type of tort in civil litigation.The malicious litigator who starts the proceedings without factual or legal reasons has a greater subjective malice,which can make up for the foreseeable possibility of breach of contract losses,but if the damage and the act do not meet the factual causation,the request for compensation for the damage will not be supported by the court.In the aspect of damage,the main manifestation of tort in civil proceedings,which is different from general tort,is the double damage of public power and private rights.It should be noted that not all improper litigation actions will cause damages that can be remedied by the tort law.These actions either will not cause damages to the civil subject,or the damages do not need to be remedied through the tort action.The types of damage caused by different types of litigation torts are different.Most scholars believe that the lawyer’s fees caused by litigation infringement should be compensated,but the issue of whether the lawyer’s fees in this lawsuit(an action for compensation brought by the victim of infringement in a civil action)should be compensated is controversial in judicial practice and has not attracted academic attention.Based on the fact that the lawyer’s fee in this lawsuit belongs to the property damage that can be remedied by the tort law and has a considerable causal relationship with the improper litigation behavior,the improper litigation behavior that generates the lawyer’s fee in this lawsuit and the behavior that the legal norms clearly support the lawyer’s fee need professional judgment,this paper believes that compensation should be made.