Malicious litigation is a behavior in which a party files a lawsuit through legal means out of illegal motives, causing some damage to the other party.

The constituent elements and manifestations of malicious litigation

Malicious litigation can be defined from the constituent elements:

1. Subjective elements: violation of the principle of good faith. The principle of good faith is a basic principle for citizens and legal persons to engage in civil activities and civil litigation activities. Whether the motive of the litigant's lawsuit is to protect its own legitimate rights and interests or to maliciously damage the legitimate rights and interests of others is the criterion for determining whether the litigation behavior violates the principle of good faith and is also the criterion for identifying whether the litigation behavior is malicious litigation.

2. Conduct requirements: lack of legitimate cause of action. The substantive criterion for judging a malicious lawsuit is that it lacks a legitimate and reasonable cause of action under substantive or procedural law. Such as (1) forging or altering evidence in order to meet legal prosecution conditions without the right to sue; (2) failing to meet the prosecution requirements or the parties have no substantive dispute but deliberately filing a lawsuit to achieve an illegal purpose; (3) taking actions that do not meet the requirements for prosecution; There is also no legal basis for litigation to delay the performance of debts.

3. Result elements: constitutes double infringement of power and rights and double substantive and procedural violations. Malicious litigation achieves the purpose of infringing on the legitimate rights and interests of others by deceiving courts and judges who enjoy public power. On the one hand, it not only infringes on the legitimate rights and interests of others, but also wastes judicial resources, damages judicial authority, and disrupts the normal order of litigation. On the other hand, malicious litigation achieves illegal benefits in substantive law and abuses litigation procedures to achieve its illegal purposes. It not only has the judicial actionability and illegal punitiveness of substantive compensation, but also has the judicial preventive and procedural aspects. Illegal and punitive. That is to say, the perpetrator must carry out prosecution, defense or other litigation actions in bad faith and without factual and legal basis to constitute a malicious lawsuit.

Based on whether the party initiating the malicious litigation procedure has the right to sue, malicious litigation can be divided into malicious litigation without the right to sue and malicious litigation with the right to sue. The former refers to the act of suing a civil case without the right to sue in an attempt to pursue the other party's civil liability, which is mainly a false lawsuit; the latter refers to the improper litigation behavior that is pursued for illegal purposes other than the legitimate right to sue despite having a legitimate right to sue, which is an abuse. right of action.

1. False litigation refers to the behavior of parties who, for illegal motives and purposes, fabricate facts, conceal the truth, and use false litigation subjects, facts and evidence to file civil litigation, which is civil malice. The most common form of litigation. False litigation often occurs in property dispute cases, mainly including: transferring divorce property through false private loans; transferring corporate property through false private loans to avoid bankruptcy risks; transferring property that is about to be executed by the court through false private loans; identifying well-known trademarks through false litigation; Destroying a competitor's business reputation through false litigation.

2. Abuse of the right to sue refers to having a legitimate right to sue, but engaging in improper litigation for illegal purposes other than pursuing legitimate rights to sue, which violates the natural law that "rights must not be abused". It usually manifests itself in the following five forms: (1) Abuse of counterclaim rights; (2) Abuse of property preservation and pre-litigation interim measures of intellectual property for the purpose of damaging others’ business reputation or other illegal purposes; (3) In order to delay litigation and debt performance Abuse of the right to appeal due to time or other improper purposes; (4) Abuse of intellectual property litigation rights to damage competitors’ business reputation or achieve other illegal purposes; (5) Abuse of procedural rights such as the right to apply for advance enforcement, the right to avoid, and the right to appeal. behavior.

The application of civil and criminal laws involving malicious litigation in my country

1. The application of civil laws involving malicious litigation in my country

Although there is no mention of this in my country’s current civil laws As for the concept of malicious litigation, there are no substantive and specific provisions on malicious litigation. However, this does not mean that malicious civil litigation is not regulated by my country's current civil laws. On the contrary, according to the principle provisions of Article 51 of our Constitution prohibiting the abuse of rights, and Article 106, paragraph 2, of the General Principles of the Civil Law, "If a citizen or legal person infringes upon the property of the state or the collective, or infringes upon the property and person of others due to fault, Should bear civil liability" provisions, we have sufficient basis to punish malicious civil lawsuits for infringement.

The general tort theory requires that the subject of the action has committed an illegal act, and that this illegal act has caused damage to the counterparty. According to the theory of civil tort law and the aforementioned provisions of paragraph 2 of Article 106 of the General Principles of Civil Law, the tort of civil malicious litigation should meet the following elements: (1) Malicious litigation. The determination of malicious litigation should adhere to the principle of unity of subjectivity and objectivity. The subject of malicious litigation is subjectively malicious and objectively carries out litigation actions that damage the legitimate rights and interests of others because of its malicious intent. (2) Damage consequences. The establishment of malicious litigation infringement still requires the occurrence of actual harm. However, it should be noted that this kind of damage should not only include direct property damage, but also include damages to reputation, spirit and other interests that are sufficient to be determined based on the current evidence. The identification of these damages should still be based on existing civil legal norms. (3) Causal relationship. That is, the damage suffered by the victim was caused by a malicious lawsuit filed by the perpetrator. Therefore, when it comes to determining causality, it is sufficient that in accordance with general social opinions and the knowledge and experience achieved by society at that time, the average person believes that the same expected results will occur under the same circumstances, without requiring that there must be an effect if there is a cause. cause and effect.

2. The application of my country’s criminal laws involving malicious litigation

my country’s current criminal law does not directly provide for the crime of litigation fraud, but there are many crimes involving the punishment of false litigation, including Criminal Law 200 The crime of fraud stipulated in Article 66, the crime of insurance fraud stipulated in Article 198, the crime of forgery and alteration of financial instruments stipulated in Article 177, the crime of forgery and alteration stipulated in Article 178 The crime of forging state securities and the crime of forging or altering stocks, companies, and enterprise bonds; the crime of forging, altering, or buying and selling official documents, certificates, and seals of state agencies as stipulated in Article 280, and the crime of forging companies, enterprises, institutions, The crime of sealing of a people's organization and the crime of forging or altering resident identity cards; the crime of forging, altering, or buying and selling official documents, certificates, and seals of the armed forces as stipulated in Article 375; the crime of obstructing testimony as stipulated in Article 307; The crime of helping to destroy or alter evidence, and the crime of refusing to execute a judgment or ruling as stipulated in Article 313.

The Legal Policy Research Office of the Supreme People's Procuratorate issued the "Reply on the Application of Legal Issues in the Act of Possessing Other People's Property by Forging Evidence to Defraud the Court of Civil Judgment" (hereinafter referred to as the "Reply") in 2002. For the purpose of possession, the act of possessing other people's property by forging evidence to defraud the court of civil judgment should not be held criminally responsible for the crime of fraud; if the actor forges the seal of a company, enterprise, institution, or people's organization, or instructs others to give perjury, it constitutes a crime If any, criminal liability shall be investigated in accordance with the provisions of Paragraph 2 of Article 280 and Paragraph 1 of Article 307 of the Criminal Law. The "Reply" advocates that the forgery of the false litigation method should be used to determine the nature of the overall act of false litigation, and excludes the possibility that other forged behaviors (such as forging personal signatures of citizens) for false litigation constitute a crime. Although the "Reply" is not equivalent to the law, the procuratorate, as the public prosecutor's office, forms a public prosecution caliber for false litigation, which plays a decisive role in the trial process of the entire public prosecution case. Therefore, in current criminal trials in our country, false litigation is still rarely characterized as fraud and related crimes, but more often as the crime of forging the seals of companies, enterprises, institutions, and people's organizations, and the crime of forging or altering resident identity cards, etc. Convicted and punished. Of course, if the conduct involving false litigation fully meets the basic characteristics of the crime of fraud, it will also be convicted and punished as a crime of fraud in judicial practice.

The current procedural laws applicable to malicious litigation in our country

Ancient Roman law attached great importance to punishing malicious litigation discovered during litigation procedures. According to the Emperor's Constitutional Order, during the litigation process, any party can require the other party to take a "false accusation oath." If the plaintiff refuses to take the oath, his right to sue will be invalid; if the defendant refuses to take the oath, it is tantamount to self-admission. The defendant can also file a "false accusation" against the plaintiff. If the plaintiff loses the lawsuit, he will be fined 1/10 of his claim; if the lawsuit is based on bribery, he will be sentenced to four times the fine once it is verified. Article 32 of the French Code of Civil Procedure stipulates that anyone who delays litigation or conducts litigation in an abusive manner may be subject to a civil fine of 100 francs to 10,000 francs, without affecting any damages that may be claimed.

Article 2 of Japan’s current Civil Procedure Code stipulates that “the parties shall abide by fiduciary duty and conduct civil proceedings honestly.” Article 384, paragraph 2, further stipulates: “In the case where a complaint is dismissed in accordance with paragraph 1 of the preceding article, the complainant shall be deemed to have filed a complaint. , for the sole purpose of delaying the conclusion of the litigation, the court may order it to pay less than 10 times the amount of the amount paid as the filing fee." It can be seen that the litigation laws of various countries have varying degrees of malicious litigation discovered during the litigation process. The behavior is punished by legislation.

1. my country’s current procedural legislation punishes malicious litigation

There are many provisions in my country’s current Civil Procedure Law and related judicial interpretations that still have a clear punitive effect on malicious litigation. Article 102 of the Civil Procedure Law stipulates: If a litigation participant or other person commits any of the following acts, the people's court may impose a fine or detain him or her according to the seriousness of the case; if a crime is constituted, criminal liability shall be investigated in accordance with the law: (1) Forgery, destruction important evidence, hindering the People's Court from hearing cases; (2) using violence, threats, or bribery to prevent witnesses from testifying or instigating, bribery, or coercing others to give false testimony. Article 163 of the Supreme People's Court's "Opinions on Several Issues Concerning the Implementation of the General Principles of the People's Republic of China and the Civil Law (Trial)" stipulates: If illegal acts related to this case are found to require sanctions during litigation, Article 1 of the General Principles of the Civil Law may be applied. Paragraph 3 of Article 134 stipulates that the offender shall be admonished, ordered to declare repentance, property and illegal gains from illegal activities shall be confiscated, or shall be fined or detained in accordance with the law. Article 25 of the "Measures for Litigation Fees of the People's Courts" stipulates that the expenses incurred by a party due to improper litigation behavior shall be borne by the party concerned.

2. Applicability of procedural laws regarding malicious litigation

Some people advocate that malicious litigation should be handled when the case is filed, which is unrealistic. According to the provisions of my country's Civil Procedure Law, as long as the lawsuit meets the conditions for case acceptance, the court should file the case. Moreover, when suing, the vast majority of plaintiffs are motivated by safeguarding their own rights and interests, and are not maliciously suing. There is no need for the court to conduct too strict examination when accepting a case and prolong the litigation period, nor does it have the time and energy to strictly grasp the case. Therefore, withdrawals should be subject to strict scrutiny and restrictions.

After a party launches a malicious lawsuit and finds that its improper litigation purpose cannot be achieved or has been achieved, it often files an application to withdraw the lawsuit to avoid possible adverse legal consequences. Therefore, the review of the abuser’s application to withdraw the lawsuit is an unavoidable issue. The right to withdraw a lawsuit is a litigation right granted to the plaintiff by the Civil Procedure Law, but whether it is allowed or not shall be decided by the People's Court after review. When the other party files a claim for damages for malicious litigation, given that whether the earlier lawsuit can be established is actually related to the later claim for compensation, if it can be determined after trial that the earlier lawsuit constitutes an abuse of rights, the court should directly The judgment rejects the claim of the abuser; if it cannot be determined after trial that the earlier lawsuit constituted an abuse of rights, the earlier litigator should be allowed to withdraw the lawsuit and the claimant's claim for compensation should be rejected. Of course, out of respect for the right to dispose of the case, the court has clarified that when the other party only defends the malicious litigation but does not request damages, the court should allow the lawsuit to be withdrawn and should not continue the trial ex officio.

In addition, during the trial of the case, it was found that there were falsifications and destruction of important evidence, obstruction of the People's Court hearings, and malicious litigation behaviors such as instigating, bribing, and coercing others to give false testimony through violence, threats, and bribery. , relevant personnel can be reprimanded, ordered to repent, fined, detained, etc. in accordance with the provisions of the Civil Procedure Law and relevant judicial interpretations. If it is discovered that malicious litigation may constitute a crime, relevant materials should also be handed over to the public security organs for processing.

(Note: The authors of this article are judges Xin Yuangang and Chen Jiaqiang of the People’s Court of Ninghai County, Zhejiang Province)