Development of scientific concepts on abuse of law in national jurisprudence
Abstract
The article defines the abuse of law as one of the most important problems of modern legal science, as well as a complex and controversial legal category, the relevance of which is directly related to the level of development of democracy, stability in the state and society, traditions of law-abiding and strict observance of human and citizen rights, research which have both theoretical and applied interest for the development of domestic legal science.
The main approaches to the interpretation of the definition of “abuse of law” available in national science and historical sources are analysed, and the main features of abuse of law as the exercise of a subjective right which causes harm to another person and may contradict his/her conscience and moral standards are identified.
In a retrospective perspective, an analysis of the development of scientific ideas cientific concepts on abuse of law in national jurisprudence in the pre-Soviet and Soviet periods has been carried out. In addition, normative legal documents that determined the specifics of law enforcement of this category during the formation of domestic law have been considered. It is noted that since the end of the 19th century, the problem of abuse of law has been considered as a question of the limits of behaviour of a subject exercising a subjective right granted by law. It is concluded that since this period, legal scholars and legislators have focused on the study of the need to prohibit the abuse of law at the legislative level. The article demonstrates that the establishment of the prohibition of abuse of law through appropriation of subjective rights was inherent in Soviet civil law with the simultaneous absence of clear signs of this legal concept at the legislative level throughout the Soviet period, and also the widespread view that the use of the term “abuse of law” should be conditional and require a clear distinction between it and the implementation of law.
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References
Rohach, O. (2011). Abuse of law: theoretical and legal research. Lira.
Rumiantsev, V. P. (2014). From the history of the preparation of the judicial reform of 1864 in Russia. Bulletin of Luhansk State University of Internal Affairs named after E. O. Didorenko, 2, 23–31.
Kaliuzhnyi, R. A., & Andrushchenko, I. H. (2006). Abuse of law: the essence and ways of counteraction. Bulletin of the Ministry of Justice of Ukraine, 8, 16–21.
Rubashchenko, M. (2010). Abuse of law as a general legal category: permissibility, essence, qualification. Law Journal, 4, 110–119.
Karnaukh, B. (2020). Abuse of right and its legal consequences. Entrepreneurship, Economy and Law, 9, 31–36. https://doi.org/10.32849/2663-5313/2020.9.06.
Brovchenko, T. I., & Myrgorod, V. O. (2020). Abuse of civil rights. Scientific notes of Taurida National V. I. Vernadsky University. Series: Juridical Sciences, 3, 51–55. https://doi.org/10.32838/TNU-2707-0581/2020.3/09.
Polianskyi, T. T. (2013). Abuse of law (general theoretical research). Right.
Kharitonov, E. O. (2011). Dynamics kontsetsptsiyi Soviet civil law and display it in the Fundamentals of Civil Legislation of the USSR 1991. Research Papers of National University “Odessa Law Academy”, 10, 313–323.
Tereshchenko, V. V. (2014). Comparative legal analysis of the Constitution of Soviet Ukraine. http://dspace.pnpu.edu.ua/bitstream/123456789/3645/1/Tereshenko.pdf.
Yuldashev, O. Kh. (2005). Problems of improving state regulatory policy in Ukraine. MAUP.
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