恶意诉讼背景下的民事诉讼法

On the Civil Procedural Law in the Malicious Prosecution Context

恶意诉讼类型多样,隐蔽性强,严重侵犯他人权益,破坏司法权威及司法公信力。人的逐利本性、社会诚信缺失、司法政策偏颇以及相关法律制度存在缺陷等是恶意诉讼泛滥的主要原因。恶意诉讼具有实体侵权与程序违法双重属性,其甄别取决于法理基础上的政策考量。旧《民事诉讼法》已有大量规范可用于预防和制裁恶意诉讼行为,新《民事诉讼法》在旧法基础上,通过引入诚实信用原则、强化检察监督、设立第三人撤销之诉、加大对恶意串通行为的惩处等的修改来加大打击力度。不过新法还存在可操作性不强、忽视受害人赔偿权等多重问题。

Malicious prosecution has diverse types and easy to be concealed. It seriously violates other＇s rights ,judicial authority and credibility. The causes of malicious prosecution include selfish human nature, lack of social honesty, biased judicial policy, defec- tive related legal system, and so on. Malicious prosecution not only violates the substantive law, but also violates the procedural law. Identifying malicious prosecution needs policy consideration on the base of jurisprudence. In the old civil procedural law, many rules can be used to regulate malicious prosecution. In the new civil procedural law, principle of good faith was introduced, prosecutorial su- pervision was strengthened, the third party opposition was established and the punishment of malicious collusion also was increased. However, the new law also has some problems such as operability inadequate, ignore victims＇ rights, and so on.