The principles of law are the fundamental foundations that determine the main directions of development of legislation. In practical terms, they are a kind of bridge between the laws of the movement of society and the legal system that is formed by this society. It is the principles that ultimately adapt the system of law to the realities of public life.
Legal principles are classified into general legal, intersectoral and sectoral. Each of these groups contains principles that reflect the content of law at an appropriate level. The general legal ones include:
- the rule of law, which affirms the general law of law before all other norms of regulation of public relations;
- the principle of legality, providing that the state is obliged to clearly and clearly articulate its limitations in order to exclude the possibility of their subjective talk by someone;
- the equality of all before the law implies that, despite the different political, social and material conditions, citizens and the state bodies themselves are equal before the law;
- the principle of reciprocity means that the state itself assumes obligations to ensure individual freedoms, but at the same time, the person takes on the responsibility to obey the general rules established by law;
- the principle of liability in the presence of guilt lies in the fact that liability can only occur if it is legally proven.
Intersectoral principles reflect the logical and meaningful connections between different branches of law or the general that is contained in several related branches.
Industry principles reflect local specific features of the content of law in a particular industry.
As the experience of law enforcement shows, the balance of interests, the equilibrium state, the “golden mean” are those ideal situations in which the principles of law provide for the opportunity to equally observe the interests of subjects involved in relations. The general principles of law establish that any deviation has its own expression and is characterized positively or negatively. Deviations can be dependent on the will of those involved, as well as on objective reasons. A kind of “deviation” from the ideal state of legal regulation is the abuse of law, which completely depends and arises at the will of the subject participating in the relationship, which completely violates the basic principles of law.
A literal interpretation of the rules qualifying the abuse of law allows us to conclude that the legislator does not give at least an approximate list of any forms, but merely indicates that abuse of the law may take place “in other forms”. By itself, this approach violates sectoral principles of law, in particular, such as the principle of the equality of all before the law.
The narrowness of this norm logically raises the question for scientists and law enforcement: is abuse of law an offense or not?
Legal science has not formed a single point of view on the nature of abuse of law, and the answer to the question of whether it is lawful to attribute it to offenses or not remains open. This does not reflect the fundamental principles of law, which include supremacy, legality, mutual responsibility of the individual and the state, equality, the presence of guilt. There is no consensus on this issue in legal theory.
Russian researchers A. Sergeev and T. Tereshchenko consider abusiveness in the conduct of negotiations as a form of abuse of the right to negotiate, and, in general, abuse of the counterparty’s trust is a special type of offense. This opinion on the qualification of abuse is supported by A.V. Volkov, referring to how the principles of law are interpreted.
A similar position is held by O.A. Portikov, considering abuse as an offense and highlighting four conditions that qualify him in this way:
- the illegality of the act;
- establishment of losses (harm);
- the presence of a causal relationship of an unlawful act with harm;
- the fault of the abuser.
A number of researchers qualify abuse of law (shikan) as “a certain type of offense”, which, however, does not entail the application of liability measures, but allows us to characterize the consequences of abuse of rights as a court refusing to protect the law. Others are critical of the abuse of the right as an offense, believing that the act of the abusive right is in the field of the subjective right granted to him by law. One of the arguments in defense of this point of view: in case of abuse of the right there is no delicate obligation, and the subject is only refused judicial protection.
Moreover, such a denial of judicial protection is considered as a direct sanction for an offense, but it is understood as a sanction from the standpoint of the generally accepted construction of the legal norm itself: if there is a hypothesis, then there must be a sanction, and this does not correspond to the content that contains the principles of law. There is an intermediate interpretation: abuse of the right is not possible to attribute either to the offense or to lawful behavior.
The variety of approaches to abuse as an offense, meanwhile, allows us to evaluate the positive and negative sides of each of them. If the law provides for a special rule on liability when going beyond the law, the specified legal consequences apply to the subject, if the law goes beyond the norm and the court qualified the act as an abuse of the right, then the measure applied to the abused right is a refusal of judicial protection.
It is also important that such a refusal is the only legal consequence of the abuse of the right in establishing this fact. In fact, this means that other consequences are not applicable.