Throughout history, people have tried to find the best means of social regulation. Initially, this was violence. It was due to its use that empires and kingdoms coordinated the activities of their subjects. Later it became clear that violence does not provide true control, but only intimidates society, making it embittered. Thus, this method of regulation was gradually supplanted by law. The latter has a number of unique advantages. The main thing is the fact that people themselves can, without any dictate, realize their interests. Therefore, today, law is the main way to regulate public relations in any state.
It should also be noted that the institute presented has developed so much that it became necessary to divide it into several elements or sectors. One of them is civil law, which regulates the most important relations of human life in the field of private life. This industry has a rich history, a fairly developed structure and a lot of additional institutions. In addition, when exercising their rights in this industry, entities very often abuse their competencies. Therefore, it is simply necessary to study the concept of “abuse” and its negative impact.
History of Civil Law
Before considering the subject of this article, which is set out in Art. 10 of the Civil Code of the Russian Federation, you need to familiarize yourself with the history of the emergence of the civil branch of law. Civil law takes its direct roots from the most ancient and developed part of Roman - civil law. Initially, this industry was understood as the sphere of the rule of law of the Quirites, that is, the citizens of Rome. In this case, the word "citizens" means people who were born within the walls of the city of Rome. Thus, civil law regulated relations exclusively between them. Later, Roman law began to develop and reach a new, more professional, so to speak, level. Therefore, civil law has fully entered the private sector, or rather, has become its basis.
Sources of Roman Law
Today among legal scholars there are ongoing discussions about the sources of Roman law. There are many controversial issues in this matter. Nevertheless, this fact did not prevent the identification of the most classical sources, namely: customs, practice of magistrates, normative acts of rulers. It should be noted that the split and the subsequent defeat of the Roman Empire influenced the law of this state in a completely unimaginable way. It did not disappear, but, on the contrary, developed even more, adopting the features of neighboring peoples. The development of Roman law itself took place on the basis of reception and territorial ramification. One part of the law "went" to Europe with the barbarian conquerors, the other - to the East with the help of Byzantium. Monuments of Roman private law played an important role.
Monuments of the Roman industry
Private Roman law developed and evolved throughout human history thanks to the key monuments of the activities of legal practitioners. Firstly, it is necessary to note the code of laws of the XII tables. This peculiar normative act was the starting point for the development of Roman private law. It was in him that the basic principles of this industry were formed. Of course, in addition to the code of laws, there were also all kinds of other codifications and normative acts of private law. However, the most famous became Corpus juris civilus. On the basis of this particular codification, reception of Roman law was made. The provisions of this normative act are still used in the legal systems of various states.
Civil law: concept
Thus, having analyzed all the above stages of the historical development of the prototype of civil law (Roman), we can single out the concept of this industry. In the scientific literature, civil scientists say that civil law is a set of legal rules governing property and personal non-property relations directly related to them . The industry is based on the equality of parties, their property independence and dispositiveness. Civil law is one of the guarantors of the development of normal and stable economic relations in the Russian Federation.
But as mentioned earlier, civil law, like other industries, has a certain framework for its action. In simple terms, the scope of application of the norms of this industry is limited. This principle is most clearly displayed in Art. 10 Civil Code of the Russian Federation. It should be borne in mind that going beyond the limits authorized by law entails a phenomenon called “abuse of law”, which, in turn, has negative consequences.
The concept of abuse of law
Going beyond the existing framework of civil law is provided for by Art. 10 Civil Code of the Russian Federation. Abuse of law is a legal construct that was known in ancient Rome. The lawyers of that distant time were sure that the implementation of any competencies should have its own framework. Any kind of going beyond these limits is "the highest injustice." As regards Art. 10 of the Civil Code of the Russian Federation, then it establishes restrictions on the activities of citizens, as well as legal entities, carried out with the aim of causing harm to other persons. In this case, the prohibition of abuse of law and its inadmissibility due to the possibility of harm are fully manifested. The presented norm is perfectly used in practice, although at first glance its applied character is practically invisible. However, Art. 10 of the Civil Code of the Russian Federation in many situations allows you to observe the principle of reasonableness, justice, dispositiveness, etc.
The issue of applying the presented norm for a long time remained a lock. But Art. 10 of the Civil Code of the Russian Federation with comments today is increasingly appearing in the editions of scientific and practical amendments to the Civil Code of the Russian Federation. An explanation of the provisions of this norm is necessary so that in practice lawyers have an idea of the ways and possibilities of its direct application. It should be noted that understanding this or that article is a scientific field of activity for which practitioners very often do not have enough time. Therefore, quite often, lawyers incorrectly implement the provisions of Art. 10 of the Civil Code of the Russian Federation, the practice of which is complicated by doctrinal "omissions".
Commentary on the first part of Article 10 of the Civil Code of the Russian Federation
Application of Art. 10 of the Civil Code of the Russian Federation is entirely based on the fact that civil law is based on the idea of justice and a fair court decision. These consequences can exist only subject to the legality and dispositiveness of legal relations of the civil industry. These factors make it possible to achieve a balance and distribution of risks between parties to public relations of a certain type. However, despite the fact that in the process of exercising their rights, the parties use the principles of autonomy, this does not allow them to carry out their activities to the detriment of others. It should be noted that Part 1 of Art. 10 of the Civil Code of the Russian Federation includes the following types of manifestations of the negative institution of abuse of law:
- the exercise of rights in order to cause harm to other persons;
- the use of civil rights in order to exclude competition from other persons;
- abuse of a dominant position in a particular market;
Thus, the first part of the article shows the very essence of the institution of abuse. It should be noted that in addition to the presented species, there are many other ways of abuse of law that are periodically used by people to achieve certain goals.
The reaction of the courts to the fact of abuse
It should be noted that in paragraph 2 of Art. 10 of the Civil Code of the Russian Federation, the legislator enshrined the appropriate reaction of individual courts (courts, arbitration courts, arbitration courts) to the fact of abuse of the right. According to this part of the norm, the courts refuse to protect the right if facts of abuse of it have been revealed. In this case, the principle of fair conduct of judicial activity is used. It is on its basis that the courts evaluate the activities of the parties and other persons in the process of resolving certain disputes.
It should also be noted that judicial practice in this area has proven not just the reality of using Art. 10 of the Civil Code of the Russian Federation, but also its effectiveness in the process of protecting violated rights and contested interests.
Commentary on the third part of article 10
Before characterizing paragraph 3 of Art. 10 of the Civil Code of the Russian Federation, it should be noted that abuse of law can be carried out in many forms. In this case, we are not talking about the direct harm to another person. After all, abuse is expressed in the implementation of various actions. Nevertheless, such acts almost always have a property benefit for the person committing them. However, abuse of law in all cases has a negative effect on third parties. The only problem is that the legislator cannot take into account absolutely all possible forms of abuse, since this is in principle unrealistic. Therefore, paragraph 3 of Art. 10 secured the same actions of the courts as paragraph 2. On the other hand, the existence of this paragraph is largely inconsistent with the principles of fairness and good faith, but this is no longer the subject of this article.
The ability of third parties to claim compensation
In all cases of abuse, affected persons have the right to demand compensation for losses incurred by them. However, to use this norm, a clear qualification of abuse of the right is necessary, otherwise it will not be possible to link the fact of abuse itself with existing losses. Of course, paragraph 1 of Art. 10 of the Civil Code of the Russian Federation provides an approximate list of possible methods of abuse, but this norm does not provide a mechanism for determining this negative phenomenon. In practice, it is quite difficult to prove not only the fact of illegal use of the norms, but also to relate them to the damage caused. Therefore, in many cases, the implementation of compensation is almost impossible, despite the effectiveness of Art. 10 Civil Code of the Russian Federation. Judicial practice in this matter also does not give a clear answer. In many cases, judges use the provisions of the commented article to correctly qualify certain actions as abuse of law. Case law court decisions also play a large role, although they are not a source of law at all.
Conscientiousness and reasonableness of actions of the parties in civil law
It should be noted that paragraph 5 of Art. 10 of the Civil Code of the Russian Federation shows the presumption of good faith and reasonableness of actions of participants in civil relations. In theory, this norm is quite acceptable and understandable, since the basic principles of civil law are the dispositiveness and autonomy of the will of the participants. However, in the practical sphere, clause 5 complicates the identification of facts of abuse of law. In most cases, the parties refer precisely to the good faith and reasonableness of their actions, completely denying the fact of abuse.
Highlights of abuse
Considering all the above points, as well as comments on all paragraphs of Art. 10, it must be said that the key institution and subject of this article is the abuse of law. When analyzing existing legislation and judicial practice, the following features of abuse can be distinguished:
1) Only the person who directly possesses it may abuse the right.
2) The exercise of the right is aimed at causing harm to others, which makes the implementation process illegal.
3) One of the consequences of the abuse of the right is the refusal of the person who committed it in judicial protection.
4) Also, the consequence of abuse may be the recognition of the transaction invalid.
5) Unfair competition is a specific form of abuse.
It should be noted, however, that abuse can take quite a variety of forms. Because the evolution of social intelligence is happening almost constantly. Therefore, the legislator does not fix a strict list of existing and possible forms of this negative phenomenon.
In conclusion, it should be noted that the practice of applying Art. 10 of the Civil Code of the Russian Federation should not be limited only by the legislative norm due to the existing principle of dispositiveness. In addition, the development of theoretical principles in this area is necessary, because people tend to create various methods of breaking the law. Therefore, the author tried to delve into the essence of the question as deep as possible with a view to its practical application not only in judicial, but also in legal practice. For this, the provisions of Art. 10 Civil Code of the Russian Federation with comments.