Volume 8 (2023), № 1, P. 4–20
[ JURIDICAL SCIENCES ]
Article (file: pdf, size: 379 KB, downloads: 19)
It has been established that the absence of clear signs and criteria for the abuse of subjective civil law in the civil doctrine and judicial practice leads to the fact that conflict resolution is carried out by the courts, as a rule, on the basis of judicial discretion. In addition, the uncertainty of the signs of abuse of the right causes significant risks for the security of doing business and the administration of justice. It is concluded that special attention in science is paid to the study of signs of abuse of civil substantive law, while the issue of signs of abuse of civil procedural law has not been studied enough. It is proposed to divide the limits of the exercise of civil rights into subjective and objective. Objective limits are set in the form of specific restrictions, regulations and legal regimes. Subjective limits are determined by the goals of granting rights in the performance of assigned duties. The abuse of the right is proposed to be defined as the result of formally lawful actions consisting in the exercise of an objective right in violation of objective and subjective limits and in contradiction with their goals and corresponding duties. Attention is focused on the fact that the definition of the mechanism of abuse of the right is of fundamental importance for judicial practice. The mechanism of abuse of the right involves the identification of appropriate methods and means.
civil law; subjective right; the limits of the exercise of the right; abuse of the right; abuse
Anna S. Vanteeva
Office of the Ministry of Justice for the Irkutsk Region, Irkutsk, Russian Federation
Aleksandr A. Pakharukov
Irkutsk National Research Technical University, Irkutsk, Russian Federation
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