Rus Articles Journal

Abuse of the right: what is it? we Will begin

with the fact that according to article 10 of the Civil code of the Russian Federation (Civil Code of the Russian Federation) abuse of the right is not allowed. In general, it is clear: what normal code will allow the evil?! Now things are easy, it was necessary to find out - what mysterious abuse is.

The mention of abuse of the right can be met even in works of ancient Roman lawyers. For the first time the ban on abuse of the right was established in the French Declaration of human rights and the citizen of 1789 where it was specified: “Freedom consists in an opportunity to do everything that does not do harm to another“. such precedent Is known to

. In 1855 in the French city of Colmar (Colmar) that near Strasbourg, the owner of the house laid out on a roof the huge furnace without withdrawal of a smoke, with the secret purpose to stand in light to the neighbor. The court decided to destroy the furnace, having considered that its device is inspired by rage.

Subsequently in the legislation practically of all European countries was the concept of so-called “shikana“ (harm, oppression) which is meant as use of the civil rights doing harm to other person is established. To same intended excessive noise, artificial creation of unjustified obstacles in use of grounds and easements, the direction of water on others land plot and other similar actions belong.

In the English civil law it is told about abuse of the right in the sphere of justice. Such concepts as of Malicious Prosecution (malicious prosecution) and of Abuse of Civil Process (abuse of civil trial) which mean intended undermining reputation of any person by prosecution are entered.

It is possible to give examples from the Islamic world still. Abuse of the right is forbidden by the Koran, and here it is necessary to call the corresponding ayata from the sura 2 “Cow“ and suras 4 “Women“. And in far 1913 in the Islamic world the composition under the name “The Muslim Doctrine about Abuse of the Right“ was published.

In the USSR the term “abuse of the right“ was not used. Instead of it it was told about “implementation of the right in a contradiction with its appointment“. For example, the similar definition belonged to the conclusion of fictitious marriage with the purpose to evade from performance of duties of the young specialist - work on distribution in other district.

In today`s Russian realities it is possible to refer convocation of meeting of shareholders in the far abroad where minority shareholders will hardly arrive to abuse of the right. In fact, thus it blocks access to participation in meeting. It is possible to mention other abuse: repeated requirements about carrying out extraordinary meeting for the same question that becomes for infliction of harm to joint-stock company as will cause essential organizational expenses.

So thin matter as abuse of the right, in trial lawyers with the purpose to protect interests of the client quite often use. However the good purpose cannot excuse unusable means.

There is a right of citizens for the statement of branch to the judge, and the bases for removal of the judge are specified in the procedural code (Art. 16 of GPK Russian Federation). After the declared branch the judge has to leave to the consultative room, make written definition, leave and announce it. Most often the judge (having conferred with itself) declares that there are no bases for branch. And so one remarkable Russian lawyer composed 70 written branches and handed over them in expedition of court that they consistently were considered in one process. You represent, what is the time it would borrow the judge? Whether there is an abuse of the right here?

Personally I think what is. First of all from the Russian judges who practically never grant applications for branch (and here it is possible to speak about abuse of a judicial discretion in the sphere of the procedural relations). Vicious behavior of judges leads to what is handed over by nerves at other participants of process.

Generally speaking, always it makes sense to discuss balance of interests. For example, there is a right for freedom of expression (Art. 29 of the Constitution of the Russian Federation) and there is a right for protection of honor, advantage and business reputation (Art. 152 of the Civil Code of the Russian Federation). Sometimes it happens so that these two rights resist each other. If the balance of interests is broken, then abuse of the right of one of the parties is available.

... Many jurists consider that abuse of the right is special type of tort. However at the theory of the right there is also other point of view according to which it is impossible to abuse the right as it is impossible to abuse what is given to the person from the birth by God and society.

I do not know what look is one problem closer to truth and to justice. Another pleases: in modern Russia for abuse of the right for the present do not put in prison.