The Abuse of Right in Constitutional Law: Problem Statement
https://doi.org/10.22394/3034-2813-2024-4-88-101
EDN: YBUONY
Abstract
Abuse of law is generally considered to be a legal phenomenon most inherent to private law. Historically, it first appeared in private Roman law; it found doctrinal development and application in legal sciences associated with private law. This issue and even the possibility of its existence are not paid due attention in constitutional legal regulation and the science of constitutional law. This article attempts to substantiate the existence of abuse of rights (powers) in the spheres that were mentioned, and to identify the problem of the insufficiency of appropriate legal regulation, which gives rise to the preconditions for abuse of rights. The current paper highlights distinctive elements of the legal phenomenon under study, and also gives a definition and assessment to the “gray zone” in which abuse of law in constitutional and legal relations is possible.
Supporting agencies: This article is an output of a research project implemented as part of the Basic Research Program at the National Research University Higher School of Economics (HSE University).
About the Author
A. I. Evstafyev
National Research University Higher School of Economics
Russian Federation
Russian Federation
Andrej I. Evstafyev, intern researcher at the Centre for Basic Research; postgraduate student of the Department of Public Law, Faculty of Law,
Moscow.
References
1. Bondar’, N. S. (2006) Decisions of the Constitutional Court as a measure of freedom and responsibility. Constitutional and municipal law. No. 10. Pp. 2–5 (In Russ.)
2. Burmistrova, S. A. (2019) On the application of good faith in the resolution of conflicts of interest. Russian juridical journal. No. 2 (125). Pp. 135–143. (In Russ.)
3. Valiev, R. G. (2011) On the status of the dispositive principle in the mechanism of public legal regulation. Scientific notes of Kazan University. Series: Humanities. No. 4. Pp. 22–29. (In Russ.)
4. Volkov, A. V (2010) Abuse of civil rights: problems of theory and practice. Dis. abstract … Doctor of Law. 53 p. (In Russ.)
5. Gadzhiev, G. A. (2002) Constitutional principles of good faith and inadmissibility of abuse of subjective rights. State and law. No. 7. Pp. 54–62. (In Russ.)
6. Gordeev, P. A. (2018) Dispositivity in the regulation of civil legal relations. A theoretical and methodological analysis. Russian law: education, practice, research. No. 4 (106). Pp. 79–86. (In Russ.)
7. Gribanov, V. P. (2001) Implementation and protection of civil rights. Statute. 410 p. (In Russ.)
8. Zaykov, D. E. (2019) Inadmissible appeals of citizens: problems of qualification and law enforcement practice. Actual problems of Russian law. No. 8 (105). Pp. 68–74. (In Russ.)
9. Ioffe, O. S., Gribanov, V. P. (1964) Limits of the exercise of subjective civil right. Soviet state and law. No. 7. Pp. 76–85. (In Russ.)
10. Malein, N. S. (1992) Legal responsibility and justice. Manuskript. 204 p. (In Russ.).
11. Malinovskii, A. A. (2007) Abuse of subjective rights: (theoretical and legal research). Yurlitinform. 350 p. (In Russ.)
12. Mal’ko. A. V. (2012) Incentives and restrictions in law: information-theoretic aspect. Sarbruken: LAP LAMBERT. 363 p. (In Russ.)
13. Mikhailov, S. V. (2002) Category of interest in Russian civil law. Statute. 205 p.
14. Novitskii, I. B. (2006) The principle of good conscience in the draft law of obligations. Bulletin of civil law. No. 1, T. 6. Pp. 124–181. (In Russ.)
15. Panchenko, V. Yu. (2014) On the issue of the relationship between interests and goals in legal interaction. Current theoretical and practical issues of development of legal science: national and regional aspects. No. 1. Pp. 89–99 (In Russ.)
16. Pashin, V. M. (2003) Institute of abuse of subjective rights de lege ferenda. Current problems of civil law. Norma. No. 7. Pp. 28–62. (In Russ.)
17. Pokrovskii, I. A. (2001) Main problems of civil law. Statute. 349 p. (In Russ.)
18. Radchenko, S. D. (2007) Abuse of law in civil law of Russia: Dis. ... Ph.D. of Jurid ical Sciences. 202 p. (In Russ.)
19. Sasov, K. A. (2021) What should be a general rule on tax abuse. Statute. No. 8. Pp. 102–106. (In Russ.) 20. Sovetnikov, I. V. (2006) Abuse of rights in the electoral process: Dis. abstract ... Ph.D. of Juridical Sciences. Moscow. 26 p. (In Russ.)
20. Tourishcheva, N. Yu. (2020) Public-legal and private legal principles of election campaigning regulation. No. 1. Pp. 89–100. (In Russ.)
21. Tyurin, S. E. (2021) The concept of public law abuse (abuse of power). Constitutional and municipal law. No. 9. Pp. 8–11. (In Russ.). DOI: 10.18572/1812-3767-2021-9-8-11
22. Filippova, S. Yu. (2013) Instrumental approach to the science of private law. Statute. 347 p. (In Russ.)
23. Sajo, A. (2008) Abuse of fundamental rights or the difficulties of purposiveness. Comparative constitutional review. No. 2 (63), pp. 162-182 (in Russ.)
24. Ehkimov, A. I. (1984) Interests and law in socialist society. Leningrad University Publishing House. 134 p. (In Russ.)
Review
For citations:
Evstafyev A.I. The Abuse of Right in Constitutional Law: Problem Statement. Theoretical and Applied Law. 2024;(4):88-101. (In Russ.) https://doi.org/10.22394/3034-2813-2024-4-88-101. EDN: YBUONY
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