The Historical and Intellectual Roots of the Right to Litigation and Abuse and Malicious Use of it
Dr. Abdullah Essa Al-Rumh
Assistant Professor of Procedure Law,
Kuwait International Law School
This research paper deals with the study and analysis of the historical and intellectual roots of the right to litigation as a right that was legislated to enable everyone to resort to their natural judge for judicial protection. It is recognized that it is a permissible act that does not result in harm to others, culpability or incitement to legal liability, unless it is intended to involve maliciousness, stubbornness, error or negligence. The new challenges that often accompany development in all walks of life have posed legal problems to the use of the right of litigation, as some litigants deliberately abuse it through the lawsuit at any stage of litigation, hence the importance of this study, as it is an issue that represents a challenge before the legislator and before the judge to search for the existence of abuse in the use of the right to litigation, whether this abuse is the intention to harm others, or the intention to deviate in its use or even by malicious lawsuit.
To demonstrate this, the research included three sections: the first deals with the consolidation of the right to litigation and the prevention of defrauding the law historically and in Kuwaiti law, the second shows the scope and areas of abuse in the use of the right to litigation, and the third presents the penalty for abuse of the right to litigation. The researcher has adopted the descriptive and analytical approaches to establish this right, and to explain its organization in Kuwaiti law through extrapolation and analysis of legal texts and judicial rulings related to the scope of abuse in the use of the right to litigation, and the consequent civil sanction in the form of fines and compensation.
The research concluded that the right of litigation for the Romans was a way to achieve an interest if the right holder used the litigation mechanism without arbitrariness or circumvention of the law. The Kuwaiti legislator stipulated constitutional guarantees for this right and legally organized it comprehensively and effectively. Considering this, the study recommended to the legislator that the right to litigation should be fortified with more guarantees and procedures to ensure that it is not violated. The maximum fine is obligatory in the cases that the legislator has provided exclusively and subjected its assessment to the court, to periodic review to urge the litigants to be serious, and not to intentionally offend in the procedural field. It also recommended reviewing the value of civil compensation as a penalty for maliciousness and arbitrariness.
Key words: Roman law, law circumvention, Financial fine, civil compensation, Kuwaiti law.