Abuse of subjective civil right: essence and mechanism of implementation

Volume 8 (2023), № 1, P. 4–20

[ JURIDICAL SCIENCES ]

Article (file: pdf, size: 379 KB, downloads: 121)

Abstract:

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.

Keywords:

civil law; subjective right; the limits of the exercise of the right; abuse of the right; abuse
mechanism

Authors:

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

For citation:

Vanteeva A.S., Pakharukov A.A. (2023) Abuse of subjective civil right: essence and mechanism of implementation. Sotsial’naya kompetentnost’ = Social Competence. Vol. 8. No. 1. P. 4–19. (In Russ.)

References

  1. Agarkov M.M. (2002) The Problem of Abuse of Right in Modern Civil Law. Agarkov M.M. Selected Works on Civil Law: in 2 vols. Vol. 2. Moscow: JSC Center YurInfoR, 452 p. (In Russ.).
  2. Anokhin V.S. (2009) On the Abuse of Right in Arbitration Proceedings: Theory and Judicial Practice. Vestnik Voronezhskogo gosudarstvennogo universiteta. Seriya Pravo = Bulletin of the Voronezh State University. Series Right. No. 2. P. 96-118. (In Russ.).
  3. Akhmadullin R.I. (2013) The Mechanism for Exercising the Rights of a Shareholder. Yuridicheskaya praktika: Vestnik Nizhegorodskoy akademii MVD Rossii = Legal Practice: Bulletin of the Nizhny Novgorod Academy of the Ministry of Internal Affairs of Russia. No. 24. P 186-190. (In Russ.).
  4. Vavilin E.V. (2016) Implementation and Protection of Civil Rights. Moscow: Statut, 415 p. (In Russ.).
  5. Vagizova E.R. (2014) Abuse of the Right by Participants in Land Legal Relations. Moscow: Statut. 158 p. (In Russ.).
  6. Volkov A.V. (2009) Theory of Views on the Problem of Abuse of Civil Rights. Zakon i pravo = Law and Law. No. 1. P. 30-33. (In Russ.).
  7. Gorshenkov G.N. (2014) Politicization of Evil. Kriminologiya: vchera, segodnya, zavtra = Criminology: yesterday, today, tomorrow. No. 3. P. 14-25. (In Russ.).
  8. Emelyanov V.I. (2002) Reasonableness, Conscientiousness, Non-abuse of Civil Rights. Moscow: Lex-Kniga., 160 p. (In Russ.).
  9. Kamyshansky V.P., Veter N.Yu. (2013) Circumvention of the Law and Abuse of the Right: General and Special (Questions of Correlation). Vlast’ zakona = Power of Law. No. 4. P. 19-23. (In Russ.).
  10. Naumov A.E. (2010) Abuse of Right: Theoretical and Legal Aspect. Moscow: Moscow State University. 144 p. (In Russ.).
  11. Novikov M.V. (2018) Unfair Competition as one of the Forms of Abuse of Civil Right. Saratov: Saratov State Law Academy. 270 p. (In Russ.).
  12. Pakharukov A.A. (2019) The Structure of Scientific Knowledge: Empirical and Theoretical Levels (on the Example of Legal Science). Kul’tura. Nauka. Obrazovaniye = Culture. The science. Education. No. 3. P. 23-57. (In Russ.).
  13. Samoshchenko I.S. (1963) The Concept of an Offense Under Soviet Law. Moscow: Legal Literature. 286 p. (In Russ.).
  14. Sergeev A., Tereshchenko T. (2010) Precontractual Liability: Grounds for Protecting the Interests of a Party Affected by Unfair Negotiation. Korporativnyy yurist = Corporate Lawyer. No. 11. P. 26-31. (In Russ.).
  15. Tkachenko A.A. (2012) The Concept and System of Principles of Civil Law. Politematicheskiy setevoy elektronnyy nauchnyy zhurnal Kubanskogo gosudarstvennogo agrarnogo universiteta = Polythematic network electronic scientific journal of the Kuban State Agrarian University, No. 84. (In Russ.).