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On the malicious tort litigation

Author: DiaoJunZuo
Tutor: WangWeiGuo
School: China University of Political Science
Course: Civil and Commercial Law
Keywords: Torts abuse of procedural rights malicious prosecution
CLC: D923
Type: Master's thesis
Year: 2006
Downloads: 654
Quote: 9
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Abstract


Malicious prosecution is a new type of tort, which has not been formally accepted in Chinese civil law yet. By analyzing the legal policy and structure of malicious prosecution, this dissertation aims to discuss its definition, inscapes, classification, and scope of compensation etc., and probes on the criterion of malicious prosecution, looking forward to providing an alternative solution to the design of tort obligation institution of malicious prosecution in Chinese Civil Code.The body of the dissertation includes four parts.Chapter One is an analysis of the legal policy of malicious prosecution institution, in another word, why a state should choose to regulate malicious prosecution by law. After the introduction of real-life cases, it concludes that it is absolutely necessary to limit malicious prosecution in law. In addition, it demonstrates that remedy in tort law is an efficient means in the regulation of malicious prosecution, by comparing with other methods and analyzing the reasons for the emergence of malicious prosecution.Chapter Two mainly focuses on the criterion, the core of malicious prosecution. The author reasons by discussing from angles of definition, inscapes, classification, and scope of damage etc., in order to seek a balance between the protections of litigation parties. Also, several issues implemented in the last part are argued here.Chapter Three draws on the insights of remedy scope of malicious prosecution, intending to offer a good framework for the protection of victim in malicious prosecution.Chapter Four starts with a brief outline of the situation of legislation and judicature nowadays in China. It then views the two versions of Draft Civil Code about regulations of malicious prosecution, and ultimately gives suggestions on specific articles by integrating the former arguments.Finally, there is a conclusion of the whole dissertation

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