Concepts of understanding the essence of the “abuse of rights” category
Abstract
The research is devoted to defining the essence of the abuse of rights and highlighting the main concepts for understanding this category. It has been emphasized that in the legal literature the issue of the abuse of rights is considered ambiguously, and the publication authors have different opinions on this subject. There is a view that the very term “abuse of rights” is controversial. Approaches to understanding the essence of the category of “abuse of rights” are divided into two broad groups depending on the theory of right origin that is used to study this manifestation. Thus, supporters of the natural law theory consider the abuse of rights as a certain ethical minimum of a subject's behaviour, which allows him or her to commit certain actions for which he or she will not be held legally liable. Supporters of the positivist theory generally deny the existence of the category of “abuse of rights” because there is no clear definition of this concept at the regulatory level.
It has been identified the main signs of abuse of rights. Therefore, it has been noted that abuse of rights balances on a fine line with an offense. It is enough to take a minor step, and in some cases the reflection of the act committed by the subject can be found in the relevant article of the Criminal Code, which turns legally neutral behaviour into an offense.
Exploring the issues of approaches put forward by researchers to understanding the essence of the category “abuse of rights”, it is possible to distinguish the following concepts: abuse of rights does not exist; abuse of rights is socially harmful behavior which, however, does not violate the law; moral principle, performance of lawful behaviour; exercise of rights contrary to their purpose; types of abuse: those that are not characterized by obvious unlawfulness, which is expressed in the socially harmful behaviour of an authorized person who relies on a subjective right belonging to him/her; a type of legal nihilism; a special type of offense; a form of exercising a right contrary to its purpose, goal, social function or interests of other subjects.
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References
Akimova, A. O. (2015, November 27). Abuse of the right to apply to the court by the plaintiff in order to establish the most favorable conditions for the case consideration [Conference presentation abstract]. Round Table “Abuse of civil procedural rights: ways to counteract”, Odesa, Ukraine.
Barabash, O. O. (2016). Approaches to the classification of types of human behavior in the theory of law. Scientific Journal of Public and Private Law, 6(1), 3-6.
Bychkova, S. S., & Churpita, H. V. (2015). Abuse of civil procedural rights. Criminalistics Bulletin, 2, 12-18.
Chuvakova, H. M. (2011). Abuse of law as a type of legal anomalies. Current Problems of State and Law, 60, 440-445.
Drobotov, I. S. (2018). Abuse of procedural rights in administrative proceedings. State and Regions. Series: Law, 1, 187-192.
Drohoziuk, K. B. (2015a). Abuse of procedural rights during proof in the civil procedure of Ukraine and France. Jurnalul Juridic National: Teorie şi Practică, 6(16), 124-128.
Drohoziuk, K. B. (2015b, November 27). Abuse of procedural rights during proof in the civil process of Ukraine [Conference presentation abstract]. Round Table “Abuse of civil procedural rights: ways to counteract”, Odesa, Ukraine.
Drohoziuk, K. B. (2016). Modern sources of evidence in the civil procedure of Ukraine and France. Law and Society, 1, 52-63.
Dudorov, O. O., & Khavroniuk, M. I. (2014). Criminal law (M. I. Khavroniuk, Ed.). Vaite.
Khokhlova, T. S. (2020). Forms of abuse of law: theoretical and legal aspect. ScienceRise: Juridical Science, 4(14), 23-28. https://doi.org/10.15587/2523-4153.2020.216734.
Komarov, V. V., Bihun, V. A., Barankova, V. V. et al. (2011). Course of civil procedure (V. V. Komarov, Ed.). Right.
Miletich, O. O. (2011). Abuse of law: general theoretical aspect. The phenomenon of freedom in law. State and Law, 52, 60-64.
Oliinyk, A. (2013). Prevention of abuse of civil procedural rights: issues of theory and practice. Legal Ukraine, 7, 83-91.
Onyshchenko, H. (2007). The problem of the existence of the category “abuse of right”. Legal Journal, 1, 25-31.
Polianskyi, T. (2010). Abuse of law (general theoretical aspect). Law of Ukraine, 1, 128-134.
Poluektov, I. (2008). Abuse of right as a violation of the principles of civil law. Theory and Practice of Intellectual Property, 6, 32-41.
Rieznikova, V. V. (2013). Abuse of law: concept and signs. University Scientific Notes, 1, 23-35.
Rohach, O. Ya. (2011). Abuse of law: theoretical and legal research. Lira.
Rohach, O. Ya. (2013). Abuse of procedural rights by the plaintiff when using the legal mechanisms provided for in Article 207 of the Civil Procedure Code of Ukraine. Comparative and Analytical Law, 3-1, 148-150.
Rubashchenko, M. A. (2010). Abuse of right as a general legal category: admissibility, essence, qualification. Legal Journal, 4, 110-119.
Shtefan, A. (2017). Abuse of civil procedural rights as a procedural legal fact. Theory and Practice of Intellectual Property, 2, 62-70.
Shypilov, L. M. (2010). To the question of the concept and essence of abuse of law. Law and Safety, 1, 6-9.
Sverdlichenko, V. P. (2017). Analysis of the category “abuse of the right to honor, dignity and business reputation” in the conditions of emergency or martial law. Forum of Law, 5, 356-361. https://doi.org/10.5281/zenodo.1199304.
Tykhonovych, L. A. (2012). Abuse of law in the field of labor relations as a moral problem. Collection of scientific works of H. S. Skovoroda Kharkiv National Pedagogical University “Law”, 18, 19-27.
Vasileva, S. A. (2013). The problem of abuse of material and procedural rights: the concept and signs of abuse of law. Economics and Law, 2, 52-57.
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