The so-called malicious litigation refers to the litigation behavior of the parties who file a lawsuit with false facts and use the lawsuit to obtain their illegitimate interests. The impact of malicious litigation on the judicial system and social stability is obvious. If the judicial organs, especially the courts, do not handle this properly, it will inevitably lead to the public's distrust of litigation and social resistance. Personally, malicious litigation is often a lawsuit in which malicious parties gain their illegitimate interests at the expense of the other party's interests. Therefore, whether the judicial organ can correctly handle the case is very important to the other party, and a little carelessness will infringe on their personal interests. But at the same time, malicious litigation has great concealment. Formally, this kind of litigation behavior often meets all the requirements of procedural law, and the subject qualification and factual reasons often meet the requirements of procedural law. In particular, before the parties file a lawsuit, they will make full preparations and pave the way for the trial of future cases. Therefore, it is difficult to judge malicious litigation at the initial stage of litigation. Even after the trial of a case begins, the trial of the case is easily confused by the careful planning of malicious parties. It can be said that how to detect and completely eliminate malicious litigation is a major problem for judicial workers.
As we know, China is a country that advocates the idea of "harmony is precious", so what makes the parties who have always been afraid of litigation use litigation instead, while malicious lawsuits that were rarely heard of in the past have been frequently reported in newspapers in recent years? We think the main reasons are as follows:
First of all, years of publicity and education on legal awareness have made the concept of "ruling the country according to law" deeply rooted in people's hearts, people's legal awareness has become stronger and stronger, the cultural quality and knowledge level of judges, lawyers and parties have also been rapidly improved, and the deep-rooted litigation fear of most China people has been greatly improved. Admittedly, this phenomenon is gratifying, but the construction of legal system is a systematic project, and the construction of system and the cultivation of consciousness should be coordinated and indispensable. So what is the current situation of China's judicial system? It should be said that China's civil litigation system has been deeply influenced by feudal autocracy and the legal system of continental law system, and it is a kind of ultra vires litigation mode, which has many disadvantages in both legislation and trial practice. On the one hand, the legislation is imperfect and unstable, and many laws and regulations are still in the stage of revision and further improvement; On the other hand, in judicial practice, there are cases where the trial judge takes over all judicial activities. Since the 1990s, China has carried out a massive trial mode reform in view of the defects in judicial practice, and the legislative activities have gradually matured, but it still belongs to the stage of further construction and gradual improvement of the legal system. At this stage, loopholes in laws and systems are easily exploited by people who have gradually become accustomed to using legal weapons.
Secondly, the current legal education and publicity lack sufficient attention to honesty. Honesty is the moral principle of economic activities under the market economy system, and it should also be the moral principle of solving civil and economic disputes under the market economy system. He asked people to pay attention to credit, keep their promises, be honest and not cheat, and pursue their own interests without harming the interests of others in the process of market activities and dispute resolution. The principle of good faith in litigation should include the good faith between the parties and the judge, and the good faith between the parties. Not only should the judge not occupy his own position in the litigation and give the litigants their due status as the subject of litigation, but also the litigants should pay attention to honesty and credit, and should not use improper means that violate the principle of honesty and credit to use litigation laws and regulations that are beneficial to them and avoid litigation laws and regulations that are unfavorable to them. Due to the restriction of traditional litigation concept, litigation system and historical inertia, the principle of good faith is not stipulated in China's civil procedure law. Since the reform of civil trial mode, the principle of good faith has not been paid enough attention in litigation theory, which has led to the gradual enhancement of the legal awareness of the parties, but it is not perfect and has become the ideological source of malicious litigation.
Thirdly, there are many loopholes and defects in China's judicial system, which have become the objective reasons for the frequent malicious lawsuits. In the traditional mode of ultra vires litigation in China, the authority of the judge is very strong, which plays a vital role in the occurrence, development, change and elimination of litigation. It happens from time to time that judges personally contact the parties in private, and the result of litigation is likely to be affected by the actions of the parties that violate conscience and moral standards, so it is not surprising that malicious litigation occurs. Based on this, the reform of civil trial mode will shift the focus of hearing cases from the court to the trial. However, because the trial mode is still in the reform stage, many loopholes exposed in the reform process will be exploited by parties with ulterior motives, so one of the conditions for completely eliminating malicious litigation is to improve the litigation system as soon as possible and eradicate the objective soil of malicious litigation.
Finally, the unclear punishment measures for the parties to malicious litigation are also one of the reasons for the increasing proliferation of malicious litigation. In view of the huge negative impact of malicious litigation on the parties and the whole judicial practice, the parties to malicious litigation should be given corresponding punishment measures, combining economic punishment with criminal punishment. However, the lack of regulations in this respect in China has accelerated the growth of malicious litigation on the other hand to some extent.
It can be seen that there are many reasons for the breeding of malicious litigation, both ideological and institutional. In view of the above problems, we think we should solve them from the following aspects:
First, since the root of malicious litigation lies in the defect of consciousness, let's start with consciousness first. In the process of cultivating and educating legal consciousness, we should strengthen the propaganda of honesty and credit thought. At the same time, the principle of good faith should also be stipulated in the civil procedure law and implemented as a statutory principle. Market economy is both a legal economy and a moral economy, which means that the settlement of disputes between the subjects of market economy should not only follow the specific legal provisions of procedural law, but also reflect the content of bona fide and honest litigation. In fact, the timeliness and rationality of civil litigation itself contains the moral content of public order and good customs, so it has its practical basis to bring the moral requirements closely related to dispute resolution into the category of civil litigation principles. In addition, the function of the principle of good faith is irreplaceable by other principles. Although the principles of disposition, equality of parties and debate in civil litigation reflect the requirements of litigation justice to a certain extent, they all focus on one aspect of civil litigation, especially on procedural norms. The principle of good faith is not only a supplement to other principles, but also plays a unique role in the field of consciousness. From a global perspective, national legislation has also made provisions on this. For example, Austrian Civil Procedure Law 1985, Hungarian Civil Procedure Law191,and German Civil Procedure Law 1933 all stipulate that if a party or his agent ad litem maliciously states false facts, the court may impose a fine. And with the development of society, the application scope of the principle of good faith has gradually expanded in the practice of civil litigation in many countries.
Second, speed up the reform of China's current civil litigation system, plug the loopholes in trial practice, and prevent malicious litigants from using litigation to infringe on the interests of others. For example, there are many defects in the collection of legal fees in China's current litigation mechanism. A common problem in practice is that once the malicious parties in malicious litigation lose the case in the first instance, they still appeal knowing that the judgment in the first instance is correct and there is no possibility of winning the case. After the appeal, the court of second instance evaded the law on the pretext that it was difficult for it to serve the notice of paying the legal fees, and failed to pay the appeal fees according to law within the prescribed time limit, so that the parties who won the first instance could not apply for enforcement, the intermediate people's court could not quickly file a case for the second instance, and could not make a ruling to automatically withdraw the appeal. The case has been pending for a long time. So in view of this situation, we should formulate corresponding countermeasures, and clearly inform the parties about the expenses and the amount of expenses that should be paid. In this regard, some courts have taken corresponding measures, for example, the provisions of the Notice of Appeal Fees paid in advance by the parties issued by the Intermediate People's Court of Nantong City, Jiangsu Province, which have played a good role in practice. There are many similar situations, such as imperfect pre-trial preparation system, imperfect party debate system, and untimely execution of civil trial, which have laid hidden dangers for the emergence of malicious litigation, and these are in urgent need of reform and improvement.
Thirdly, the punishment measures for malicious litigants are not clear, so legislation should be improved and perfected, and the punishment measures for malicious litigants should be clearly stipulated in civil litigation laws and regulations. We believe that we should start from the following aspects: First, it is clearly stipulated that once the court determines that this case is a malicious lawsuit, the plaintiff may not withdraw the lawsuit. This is because the plaintiff filed a lawsuit with false facts, which caused certain influence in the environment where the original and the defendant were in the same place. If the plaintiff is allowed to withdraw the lawsuit, the case has no substantive conclusion, and it is likely that the defendant will be adversely affected by this lawsuit. Therefore, considering that the plaintiff's behavior may affect the legitimate rights and interests of others, the law should prohibit him from withdrawing the lawsuit. In addition, malicious litigation is actually a contempt for the national judicial system, and prohibiting it from withdrawing is also a maintenance of the national judicial authority and a warning to the parties who abuse their litigation rights. Secondly, it provides economic punishment for malicious litigants. As we mentioned before, the civil procedure laws of Austria, Hungary and Germany all stipulate that if the parties or their agents maliciously state false facts, the court may impose a fine, which we should learn from. In practice, most courts often only sentence malicious litigants to bear the litigation costs, which is far from enough to punish malicious litigants and warn the general public. The law should have a reasonable and unified regulation on the standard of economic punishment measures according to the object of litigation and the degree of influence of the case, and give the court certain discretion so as to have a correct handling according to the actual situation of the case. Finally, for cases with extremely bad nature and great influence, the law should stipulate criminal punishment measures for malicious parties. Of course, the adoption of criminal sanctions in civil cases itself requires reasonable provisions in the system and cooperation between departments. The law can adopt the way that the civil court points directly at the criminal court, or suggest that the parties who have suffered losses in malicious litigation should initiate criminal proceedings. In short, only when the punishment measures are gradually improved can we put an end to the further growth of malicious litigation on the other hand.
What needs to be made clear here is that there is an essential difference between malicious litigation and the litigation behavior defects of the parties. The defect of the litigant's litigation behavior refers to the litigation behavior that is not implemented in accordance with the provisions of the procedural law because of the subjective or objective reasons of the litigant. The focus of legal investigation is whether the litigant's litigation behavior is legal in form, and whether the content of litigation behavior itself is reasonable and legal is not the scope of litigation behavior defects. In contrast, malicious litigation focuses on whether the nature of the parties' litigation behavior is legal and whether the motives for implementing the litigation are correct. There are subjective and objective reasons for the defects of litigation behavior, which cannot be generalized. Therefore, as a court, it should be carefully considered when examining and judging the effectiveness of the parties' defect litigation. Litigation is a man-made behavior, which is related to the vital interests of the parties. It is impossible to ask the parties not to make any mistakes in litigation. In fact, the opportunity for the litigant's litigation behavior to appear defects is given by the current legal system to some extent. Therefore, it is necessary to make a wise choice after comparing the interests of the procedure and the interests of the parties on the premise of considering the stability of the procedure and the smooth progress of the lawsuit. As for malicious litigation, although the legal system is not perfect and there are loopholes, malicious litigation will bring extremely bad influence to citizens, the legal system and society, and will only cause harm to social stability, so malicious litigation is absolutely intolerable. [