The abuse of law has been known since ancient Rome. There it was framed in the form of a maxim "Higher law - the same injustice." This suggests that any of them should have its own range of application, otherwise there may be a violation of the rights of others, which would violate the principles of reasonableness and good faith for civil circulation.
Legislative Prohibition
The article on abuse of law in the Civil Code of the Russian Federation is numbered 10. It stipulates that actions that are carried out with the aim of causing harm to other persons or the manifestation of the phenomenon in question in other forms are not allowed.
Civil rights cannot be used to limit competition or to abuse the dominant position in a particular market in a business entity.
Despite the fact that the above norm seems declarative, it is widely used in practice to comply with the principles of civil circulation.
The provisions of Art. The Civil Code of the Russian Federation on the abuse of law a large number of times clarified by the courts of higher rank.
Law Enforcement Key Points
The abuse in question may be committed by a person who has such a right.
It wants to harm others.
If a fact of abuse is detected, the court may refuse the person who committed it in judicial protection.
In the arbitration process, with this fact, the transaction may be declared invalid.
To protect the rights of creditors, a loan agreement aimed at violating the legitimate interests and rights of the former is also recognized as invalid. One form of abuse of law is unfair competition. Appropriate legal sanctions may be imposed for her, including the refusal to protect subjective law.
The validity of this refusal
This issue is debatable. Many lawyers believe that the existence of failure is illegal. This is due to the fact that there is art. 46 of the Constitution, in which any person is guaranteed judicial protection. In Art. 56 of this document also states that its limitation is prohibited even in emergency situations. In Art. 55 it is written that it is impossible to issue laws that repeal this rule, except for federal laws aimed at protecting health, morality and constitutional foundations, the legitimate interests and rights of others, and ensuring the security and defense of the state. All other limits are illegal and should not be applied.
However, the denial of protection in case of abuse of rights in civil law has been fixed.
Classification of the phenomenon under consideration
All forms of abuse are diverse, however, for classification purposes they can be combined into the following types:
- abuse aimed at deliberately causing harm to any other persons (the so-called shikana);
- it is committed without the intention of causing harm, but causing it.
Shikan is given in the definition of "abuse of law" in the article of the Civil Code. It says that this phenomenon is aimed only at intentional harm.
In the second case, intent is absent. The abuse is committed through negligence or indirect intent. For this case, the compositions of the phenomenon under consideration can potentially be described in the relevant laws. The composition of chicanes is not regulated by them.
Thus, the concept of abuse of rights must necessarily include causing harm to another person, as well as intent.
In early 2013, Federal Law No. 362- came into force, which supplemented this list of forms with actions aimed at circumventing the law, with illegal purposes. Prove the commission of such actions should be the one who makes reference to this circumstance.
Division of abuse of procedural law from different perspectives
A more complete division can be seen in the classification according to various criteria.
In accordance with the stages of the civil process, the phenomena under consideration are divided into those committed in the courts of various instances, in the course of the review of a case related to newly discovered circumstances, as well as in the proceedings for the execution of court acts.
From the point of view of the subject attribute, these abuses are divided into institutional and general.
The first of them occur in those areas that are subject to regulation by the relevant rules of a particular institution of civil procedural law. The latter are characteristic in general for civil proceedings.
For the object to which the harm caused by abuse of procedural rights is directed, they are allocated that are aimed at the interests of justice, as well as aimed at both the above interests and the interests of participants.
According to the consequences for civil procedural legal relations, the abuses are divided into those that cause minor harm, as well as medium and substantial. The first of the types of damage considered may be the disruption of the hearing. The second is to increase the time limit for considering a specific case and increase court costs borne by the opposite side. Substantial harm is caused when the delivered unlawful decision is enforced. This is characteristic of abuse of law by the court.
According to the influence exerted on the formulation of the decision, the abuse is divided into influencing and not influencing the outcome of the case.
By the qualitative composition, all the phenomena under consideration can be classified into simple and complex. The former are quite easily recognized and qualified. The latter are disguised as legitimate behavior and are characterized by stealth.
According to the quantitative composition of abuse, they are divided into single and multiple. The former are characterized by one action, which is the phenomenon under consideration. The second consists of a series of procedural actions, and they are all aimed at abuse of the right. These offenses may be committed by one or several persons. At the same time, one can single out a separate line of counter-abuse, that is, responding to subjective rights presented with abuse, both from one side and the other.
In accordance with the nature of behavior, active and passive abuses of the right in civil law are distinguished. The former are committed by certain actions, and the latter by inaction. Most of those considered are active.
Depending on the number of persons committing abuse of procedural rights, they are divided into committed by one or more persons. The latter is possible if one of the parties to the process is multi-subject. This can occur in a situation of complicity, with the same interests of the parties with those in relation to third parties who do not participate in the process.
In the arbitration process, abuse of rights can be understood as this process in relation to the filing of a claim. But judicial practice shows a negative attitude to this issue.
Purpose of application
In most cases, courts rarely use this right on their own initiative. A refusal to protect a right may be considered from the standpoint of legal protection, a method of protecting the right, or as a sanction.
The first of the indicated categories means measures that should eliminate the causes of the offense and create conditions for the exercise of rights without restrictions. Thus, the denial of protection does not correspond to this position.
According to the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation, the purpose of Art. 10 of the aforementioned code is not to punish the person who committed the abuse of the right, but to protect the victim from this abuse.
It states that it should act as a backup tool, which should be used only in those cases, special rules to combat the offenses under consideration.
In addition, in the amendments to the Civil Code of the Russian Federation that entered into force in 2013, in addition to the stipulated refusal to protect rights, an indication of other protection measures appeared. This is because the application of the provisions of Art. 10 Civil Code was originally intended only to an unscrupulous plaintiff. Judicial practice, however, indicates that this provision must be applied to the same extent to other participants in the process, in particular, to the defendant.
Analogs of a similar phenomenon in the West
In some issues of introducing the concept of “abuse of law”, France is a pioneer in the court. Its Civil Code does not include a completely similar article in comparison with the Russian art. 10. Here, this term is used for certain legal relations and only for specific situations. This is due to the fact that the legislators of this state are concerned about the restrictions on the freedoms of their citizens.
In more detail this concept is deciphered in the section of this code devoted to torts. That is, the courts can take any action in identifying cases of abuse of law in the presence of damage. During the court hearings, the violated rights of any party are assessed, and the issue of infringing public interests in the case of the abuse in question is also considered.
In Switzerland, this phenomenon should be explicit. Judicial rights for abuse are aimed at recognizing them if the law does not allow these situations. Similarly to our requirements of the Civil Code, a similar Swiss code provides that a person who abuses the right must be denied protection. Unfair competition, as well as the lack of rivalry in the economic sphere, is considered to be one of the forms of the phenomenon under consideration.
Abuse of procedural rights
A similar phenomenon acts as one of the main types of civil procedural offenses. Parties involved in such processes should facilitate the proper resolution of the case, and when one of the parties deliberately delays the case, misleads the court, it abuses its rights.
Any unlawful person can apply measures of civil procedural coercion to an unscrupulous person, or the court can apply them on their own initiative. In this case, the consequences may be directed at applying sanctions to the person stipulated by the procedural legislation, or the court can suppress such actions by imposing appropriate penalties on the violator or refuse to perform those actions requested by the person who abuses his right.
Arbitrage practice
The abuse of rights enshrined in the Civil Code of the Russian Federation can be used by the court in the following actions:
- Incorrect designation of the address of the defendant, committed with intent;
- failure by the plaintiff to claim information about a person whose interests and rights are affected by the statement of claim;
- filing an unreasonable claim;
- an application for the recognition of a non-normative act in the field of the law of a state agency invalid due to the expiration of the limitation period.
The most striking examples of the use by the courts of Art. 10 of the Civil Code of the Russian Federation are bankruptcy cases, which is due to the fact that the courts must check the claims of creditors for validity.
A refusal of a creditors' claim may occur if, having examined the circumstances of the case, the court has concluded that the legal relationship justifying them may not meet the interests of the debtor or may not have economic feasibility.
Claims in the homonymous register of creditors are not included by the courts when studying contracts, if the following circumstances of the conclusion are established:
- no counter provision;
- there are signs of abuse of the right in relation to the actions of the parties to this agreement;
- Transactions are completed in order to harm the creditor.
In these cases, the courts invoke Art. 10 Civil Code, using specific criteria from the Federal Law "On Bankruptcy".
From arbitration practice, the following are recognized as abuse of law:
- statement by the buyer of real estate about the lack of state registration of the lease, if at the time of purchase he knew about it;
- inaction of the bankruptcy trustee on the search for debtor property;
- sale of movable property in case of dishonest actions of the buyer and the seller’s representative, as a result of which the seller could lose the opportunity to use the property necessary for him to carry out his core business;
- the case when the collector and debtor are affiliates, creating artificial payables, thereby causing harm to other creditors;
- inadmissibility of employees of business entities in the field of communications to attics and roofs of residential premises, as well as other cases where unreasonable restrictions are imposed on contractors or unreasonable conditions are created for the latter to exercise their rights.
In this case, it is necessary to apply arguments supported by evidence.
Consider judicial practice under the new provision of Art. 10, which provides for the misuse of the right to circumvent the law, performed with an unlawful purpose.
The shareholder at the general meeting acts in such a way as to harm other shareholders and gain corporate control over the business entity bypassing the law. The court excluded from the voting results the results that were obtained on the preferred shares of this shareholder.
There are cases when the writ of execution is not enforceable, but presented to him. In 2013, the Federal Antimonopoly Service of the Far Eastern District received illegal receipt of funds.
Moscow FAS acknowledged that ordinary business banking cannot imply activities aimed at violating the requirements of the Bank of Russia and applicable law.
In addition, courts abuse the right to recognize the conclusion of lease agreements by the municipality with business entities without obligatory tendering.
In some cases, the courts indicate that the circumvention of the law was perfect, but do not use Art. 10 GK.
It is necessary to distinguish between abuse of procedural and substantive law.
Finally
Thus, the abuse of law in civil law is aimed at causing harm to other people, while the person who carries out this action must have intent. In 2013, amendments were introduced to the Civil Code, which provided as a form of the phenomenon under consideration, circumvention of the law with the aim of pursuing unlawful actions. Abuse occurs in both substantive and procedural law. Courts rarely on their own initiative consider cases under Art. 10 Civil Code, and, using it, can rely on specific criteria of other regulatory legal acts.