Malicious litigation is a kind of typical tort, which can be classified as false litigation, malicious litigation based on the abuse of rights and unwarranted prosecution. At present, the principle of good faith in civil procedure law, the sanction system of false lawsuit court and the crime of false lawsuit in criminal law all regulate malicious lawsuit. However, without the regulation of civil liability, it is impossible to fundamentally curb and punish malicious litigation. Our country should in the legislation think malicious litigation as a kind of special infringement behavior. The malicious litigation tort's fault is direct intentional and its damage including expected benefits losses. The damage to the malicious lawsuit tort should include the expected benefits. The punitive damages should be applied to the malicious litigation tort.