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RESEARCH PRODUCT

L'abuso del processo: una ricerca comparatistica

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description

Abuse of process, and related expressions, such as abuse of procedural rights, have in relatively recent times become part of the legal language of continental countries, such as Italy. But, since the introduction of the use of the concept, it has increasingly been an object and aim of several doctrinal contributions, which are here scrutinized. The essay concentrates upon the evolution of legal proceedings amounting to abuse of process, according to the definition which bases itself on the unfair and inadequate use of the process for purposes profoundly differing from those typical of the individual right to the access of justice. Initially, it was the state, when prosecuting a defendant for a criminal offence, to be regarded to be acting in an abusive way whenever the process was destitute of the attributes of a fair trial. Those times have been egregiously explored by Winfield in a well renowned book. But as time went by, the notion of abuse of process developed so as to comprehend all instances of an improper, vexatious, meritless beginning of actions, aimed at harassing the other party rather then pursuing a lawful end. The judicial and legislative response to this state of things, especially since the late days of the 19th century, has been progressing towards more and more severe measures which resulted in the limitation, prohibition, striking out of vexatious, abusive actions through the conferring upon the courts of efficient discretionary powers. The description and illustration of this trend, and its most updated results, especially obtained in the English Court of Appeal, constitute the main core of this research.