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Research on Tort of Malicious Lawsuit

Author: ZhouJinPeng
Tutor: LiHongWu
School: Shandong University
Course: Civil and Commercial Law
Keywords: malicious lawsuit malicious prosecution in criminal suits malicious prosecution in civil suits abuse of procedure
CLC: D915.1
Type: Master's thesis
Year: 2008
Downloads: 276
Quote: 3
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Abstract


Malicious lawsuit refers to the act which is conducted by maliciously using the suit procedure and causes damages to the others. However, because of lack of legislation, the actor of malicious lawsuit can not be punished effectively, and the phenomenon of malicious lawsuit is becoming more and more severe. The article takes the act of malicious lawsuit as the object of research, and discusses the problem of how to regulate the act of malicious lawsuit in entity law from the visual angle of tort law.In the part of preface, the author enumerates three typical cases of malicious lawsuit, which give the readers an intuitionistic understanding about"what is malicious lawsuit". The author then briefly reviews the development of the phenomenon of malicious lawsuit in China, and points out the importance of establishing the legal system for preventing malicious lawsuit.The text of the article is divided into four parts. Part one is the general theory. First, the author reviews several relating concepts of malicious lawsuit and presents the definition of the author. Second, the author distinguishes the differences between malicious lawsuit and the other relating concepts, and further definitizes the concept of malicious lawsuit and the research object of the article. Third, the author discusses the illegality of the act of malicious lawsuit from four aspects. Last, the author points out how to regulate the act of malicious lawsuit, i.e. "paying equal attention to entity law and procedure law".Part two is the comparative research on the tort of malicious lawsuit. The author investigates the relative system of malicious lawsuit in both civil law and common law, and summarizes the different characteristics of them.Part three is the civil liability of the tort of malicious lawsuit. The author expounds the system info of civil liability of the tort of malicious lawsuit from four aspects, which are the actor, the constitution, the types and liability forms. Then, the author discusses whether malicious lawsuit can exist in administrative procedure and expounds the malicious lawsuit existing in the domain of intellectual property.Part four is the idea of the mode of legislation on the tort of malicious lawsuit in China. First, the author investigates the legislative circumstances about the act of malicious lawsuit. Second, the author reviews the regulations on tort of malicious lawsuit in three scholars’ proposing drafts. Last, the author presents his own legislative proposal by the above review.In the part of postscript, the author calls on more people to do research on the legislation about tort of malicious lawsuit.

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CLC: > Political, legal > Legal > UNIVERSITY > Procedural Law > Litigation system
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