Abuse of law: concept, types, forms

The concept of abuse of rights arises from a certain range of charters and obligations provided by law, during the implementation of which the action in question may arise.

What is it based on?

Civil obligations and rights arise on the basis of other statutory acts established by law. They also consist of the acts of legal entities and citizens, which may not be provided for by law or legal acts. But because of the general meaning and the beginning of the existence of civil law, they evoke civil duties and rights.

In accordance with civil law, entities have rights and obligations from transactions, agreements established by law, transactions and agreements not legally provided for, but not contrary to it, from meetings, events that a legal act or law associates with the onset of civil law consequences ( damage to another person, unjust enrichment, creation of scientific works, works of art, literature, as well as inventions and other results of intellectual activity, acquisition of s assets, the creation of acts of local self-government bodies and public authorities as provided by law, other actions of legal entities and individuals).

The principle of non-abuse of law

Despite the degree of concretization and detailing of the prohibitions that determine the framework for the implementation of subjective civil rights, this does not exhaust all possible manifestations of options and methods of implementation that are not directly prohibited by law, but which cause contradictions for the purpose of their implementation. In this regard, the principle of prohibition of abuse of law is applicable in civil law. It is fixed in the tenth article of the Civil Code of the Russian Federation. Since it is impossible to foresee all possible variants of abuse of the right and describe them in the form of specific prohibitions, the code defines the general requirements for the subjects.

The inadmissibility of abuse of law as a principle has a legal basis. And this is a universally binding criterion for determining the illegality or legitimacy of the behavior of subjects.

Definition of abuse of law

The problem of abuse of rights has been known since the time of Ancient Rome and until now has not lost its relevance. This is evidenced by numerous judicial practice.

The Civil Code under the abuse of law means the exercise of civil rights by harming another person, as well as other unscrupulous actions aimed at the fulfillment of their desires. Such behavior in the field of restriction of competition is not allowed. This is spelled out in law. The abuse of law in civil law is always carried out with direct intent. The negative effects caused by the action in question are not always a mandatory feature. By themselves, they have no legal value.

The judicial authority to identify the fact of legal abuse, taking into account the consequences and the nature of the action taken, may refuse the person partial or full protection or take other measures that are not contrary to law.

If the abuse of the right has led to a violation of the right of another person, the latter has the right to demand compensation for losses caused by this act.

Thus, actions of the nature in question are understood to mean such violations:

1. Realization of civil rights. If the goal is to harm another person.
2. Illegal actions bypassing the law.
3. The exercise of their civil rights is knowingly dishonest.

The concept of market dominance

The dominant position in the market refers to the exceptional position of an economic entity in relation to a certain product, work or service, which provides a decisive opportunity to influence competition. There is also the opportunity to make it difficult for other business entities to enter the market of goods, services or works or otherwise restrict the entrepreneurial or economic activity.

Abuse of the right of an economic entity that holds a dominant position in the market includes the following actions:

1. Their result is an infringement of interests and restriction of competition of other business entities.
2. The withdrawal of goods from circulation in order to maintain or create a shortage in the market.
3. The imposition of the terms of the contract to the counterparty, which are disadvantageous to him or not related to the subject of the contract, etc.

For actions that constitute an abuse of rights, certain sanctions may be imposed, which are prescribed in antitrust laws that regulate punishment for cases of this kind of behavior in the market.

Without purpose of harm

Abuse of law (Civil Code of the Russian Federation, Article 10), committed not with the aim of harming, but objectively delivering it to another person, is a rare occurrence. When solving the question of the reality of causing harm (without the purpose of causing it), one has to resort to an analysis of subjective and objective factors. It is necessary to consider them, if they took place in the exercise of law.

Harmful abuse

Damage to another person in the process of exercising his civil rights is a violation. Its specificity lies in the possibility of the holder of subjective civil law embodied in this privilege to realize it not with the aim of satisfying his needs. The point is to harm another person. That is, the copyright holder does not need a normative result when exercising the privilege. But he seeks his offensive in order to harm another person. Damage refers not only to losses incurred by another person, but also another negative result of the exercise of the right by an authorized entity.

Restriction of competition

The abuse of law by the Civil Code of the Russian Federation is determined in the form of restriction of competition. It is considered one of the forms of the violation in question and an act against antitrust laws. The regulation on the protection of competition in article 11 prohibits an agreement between business entities. We are also talking about their coordination among themselves. Coordinated actions on the product market of business entities, if these agreements and actions can lead to the following consequences, are also spelled out in this article:

• they lead to a decrease, maintenance or increase in prices at the auction;
• to maintain or establish tariffs, prices, surcharges, discounts, margins;
• lead to the division of the commodity market according to the principle of territoriality, the volume of purchases or sales, the choice of products sold;
• a change in the composition of buyers or sellers;
• conditions for participation or membership in professional or other associations are being established if these criteria can lead to or contribute to the elimination, limitation or prevention of competition.

Also, such actions lead to the establishment of factors that will be unreasonable and may be an obstacle to participation in payment systems. Or we are talking about other organizations, without participation in which financial institutions competing among themselves will not be able to carry out the necessary operations and sell their services.

Signs of abuse of law

Abuse of law has its essential characteristics, which are the following factors.

1. Legal uncertainty that causes the situation in question. At the same time, regulatory civil law norms cannot be used, or they are absent at all.
2. The real means of abuse of the right is not a subjective, but a subjective civic duty and privilege, which takes a pseudo-legal form for the realization of its goals.
3. The offender pursues a hidden illegal goal, that is, on the subjective side, acts with direct intent, but with the use of deficiencies in legal norms and formalism.

Forms of abuse

Forms of abuse of law can conditionally be divided into two main groups.

1. Abuse, the purpose of which is not to cause harm, but delivering it to another person.
2. Abuse of law when its purpose is seen as a desire to cause harm to another person. This is achieved by performing certain actions for this - the so-called chicana.

Shikana has in his actions a direct intention committed by the subject of the offense.

Types of abuse of law have certain characteristics. Acts that have no purpose and desire to cause harm to another person, but causing him harm, do not fall under the signs of chicanes, since this action is performed without direct intent. On the subjective side, this is expressed in the form of negligence or indirect intent.

Forms of neglect

Abuse of law has certain forms of manifestation, since the fact of the acts in question is an offense.

1. Denial of protection, for example, applies as a certain type of sanction. She is already expressed in concrete forms.
2. Recognition of an invalid transaction.
3. The loss of subjective law.
4. Assignment of damages.
5. Refusal of a certain method of protection.
6. The loss of authority to the result obtained as a result of abuse of the right in the course of its implementation, etc.

The concept of abuse of subjective civil law

The concept of abuse of rights implies the limits of personal freedom of the participant of violations. They include the ability to act independently, to require other persons to take certain measures. If necessary, it is allowed to contact the authorized bodies for protection. Subjective rights are an element of legal relations and serve to satisfy the interests of certain individuals. The exercise of the privilege in question is an action that is consistent with the law, if its limits are not violated

From a practical point of view, abuse of subjective right often manifests itself in corporate blackmail. That is, a participant in the business community is involved to achieve certain preferences. Most often, this is forcing a shareholder to redeem a share in the authorized capital of a company from a person engaged in corporate blackmail.

Judicial practice of the application of the legislation shows that abuse of the right has the features of misuse of the privilege belonging to the subject. Or we are talking about the lack of interest based on the law of the relevant person in the exercise of his right.

Subject

In the Civil Code, the abuse of law is carried out by a specific entity. These can be ordinary people and legal entities who, according to the civil law grounds, have the corresponding privilege. If the owner of this concept begins to abuse a right that does not belong to him or a right that does not apply to a civil factor, this is a tort.

Ways to protect your privileges

The ways to protect civil law include the following factors.

1. Compensation for damages or forfeit.
2. Recognition of the decision of the meeting as an invalid fact.
3. The award to fulfill obligations.
4. The implementation of the invalidity of a void transaction.
5. Invalidation disputed transaction and the implementation of the consequences of its cancellation.
6. Compensation for non-pecuniary damage from a change or termination of legal relationship.
7. Non-application by the court of an act of local self-government bodies contrary to the law or the norms of state authorities
8. Reinstatement of a situation that existed before the violation of the law.
9. Suppression of actions that create a threat of violation of privileges, or acts that interfere with their implementation.
10. Recognition of acts of local authorities or the norms of state systems as invalid events.

The presented list is not final, as other protection methods are established by law.

Abuse of procedural law

Neglect of the concept under consideration can be expressed both material and procedural assaults. Procedural law arises only for persons participating in the case after the acceptance of the statement of claim and its initiation. Neglect of procedural privileges can arise only from now on. It follows that the filing of a complaint or statement of claim, in which a case is brought in court, as well as the inclusion of any provisions in them, cannot be recognized as an abuse of law.

Neglect of the concept under consideration can cause consequences such as delaying the process or an adverse outcome for its parties.

In this matter, the Arbitration Procedure Code has surpassed the Civil Procedure Code. This is due to the fact that it contains rules governing the adverse consequences for those abusing their procedural right. For example, legal costs are borne by such persons. A penalty is also provided for a person or group of persons in case they abuse their rights or do not fulfill their procedural obligations.

Filing a statement of claim or complaint is not a breach of the law.

Judicial practice indicates that most often the abuse of procedural law is expressed in filing a motion to challenge the judges, to postpone the proceedings themselves or to suspend the proceedings.

Conditionally, the result of the considered action can be divided into two groups.

1. Payment of a certain amount of money by a person abusing his right.
2. A judicial refusal to a person who is found to have neglected the considered norms of the law to commit certain actions that this person asks for.

The first group is aimed at suppressing actions by the court that may delay the movement of the process. The second criterion is aimed at punishment in the form of court costs which applies to a person abusing his privileges. This issue is decided by the arbitral tribunal and ends with a legal act or determination.

Abuse Practices

Until recently, abuses were rarely applied. But the increase in the number of disputes increased the number of court decisions, where in the motivated part one can see a conclusion on the neglect of the fulfillment of his right by the defendant.

Such a norm as abuse of law in civil law does not have a detailed description. Exclusively at the discretion of the court, a decision may be made as to whether the fact of the violation in question was.

The practice of arbitration courts uses not only a denial of judicial protection as a consequence of the violations in question, but also recognition of an invalid transaction.

For example, in order to protect creditors in bankruptcy, a debtor's transaction may be invalidated. This happens if it is committed before the initiation of the case or after its beginning. The transaction is also canceled if it is aimed at violation legitimate interests and the rights of creditors, including an agreement on the alienation of property of third parties at a knowingly low price in order to reduce the bankruptcy estate of the debtor.What are the consequences of abuse of rights in this situation? Under the contract of sale as upon the fact of the action in question invalidation of the contract, drawn up by the debtor (seller) if the real estate is sold at a price lower than the market more than forty-eight times. Such a transaction is considered as an action aimed at the detriment of the interests of creditors.