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近年来,恶意诉讼的发案率有逐年上升的趋势,民事和行政制裁手段已经无法有效预防和控制恶意诉讼,而又由于我国《刑法》相关条文的不完善,不能对恶意诉讼行为进行有力的刑法规制,导致恶意诉讼行为人违法成本过低,更加肆无忌惮,因此,对恶意诉讼行为进行刑法规制具有现实必要性。恶意诉讼行为违背诉的利益原则、诚实信用原则和程序正义原则,应当受到刑法规制,但是由于司法实践的情况太过复杂,以及受到各种司法解释和理论学说的束缚,对于恶意诉讼刑法规制的发展始终停滞不前。在我国《刑法》现有规定的基础上,可以将恶意诉讼分为财产性和非财产性两种情况分别定罪量刑,为更有效遏制恶意诉讼行为,可以在妨害司法罪一节中设置专门的罪名,对恶意诉讼行为进行规制。
In recent years, the incidence of malicious litigation has been increasing year by year. The means of civil and administrative sanctions have been unable to effectively prevent and control malicious litigation. However, due to the imperfect provisions of the Criminal Law of our country, we can not force the malicious litigation Due to the regulation of criminal law, it causes the illegal act cost of the malicious lawsuit to be too low and more unscrupulous. Therefore, it is necessary to carry out the regulation of criminal law to the malicious lawsuit. However, due to the complexity of judicial practice and being bound by various judicial interpretations and theoretical theories, the criminal procedure of malfeasance, the principle of good faith and the principle of procedural justice, Development has always been stagnant. On the basis of the existing provisions of “Criminal Law” in our country, we can separate the criminal prosecution into two types of property and non-property crimes respectively. In order to more effectively curb the malicious acts, we can set up a special Convicted of malicious acts of litigation to regulate.