MISUSE OF THE RIGHT IN THE CIVIL LAW RELATIONS: ISSUES OF FORMATION OF THE UNITED CONCEPT OF DETECTION AND COUNTERACTION

The article is devoted to the problem of formation of the united concept of detecting and counteracting the misuse of the right in civil law relations. The methodological basis of the research is general philosophical (materialistic and dialectical), general scientific (logical, system-structural, axological), special (structural-legal, formal-legal) methods. The author draws attention to the directions and points of view existing in civil science, substantiating the concept of abuse of law from the point of view of its content and typical features, justifies that civil law, prohibiting the exercise of rights in certain ways that cause or may cause harm to third parties, at the same time, he uses evaluation concepts that do not allow to determine the legitimacy of an action with the necessary degree of clarity. A comprehensive analysis of the theoretical structure of abuse of law and judicial practice was carried out, a final conclusion was formulated that the typical signs of abuse of law in civil matters, on the basis of which they can be identified and counteracted as such, are the affiliation of the parties to the transaction, consistency actions in order to obtain unjustified benefits and advantages, the «realization of the right» by a person without proper legal basis, the use of legal constructions in order to unjustified property benefit, but not for the impletion rights or defense mechanism. These signs are of practical importance, since they serve to identify schemes for the abuse of law in judicial and other law enforcement practice. Their theoretical significance lies in the development of the concept of abuse of law by the example of civil law relations, where the term «abuse of law» by itself has legal affirmation, and the implementation of relevant schemes in law enforcement practice entails specific adverse consequences.

misuse, law, civil, right-relation, concept, detection, counteraction, judicial, practice, sign, implementation, use.

Komarova A. V. Misuse of the right in the civil law relations: issues of formation of the united concept of detection and counteraction. Business. Education. Law, 2019, no. 3, pp. 290–294. DOI: 10.25683/VOLBI.2019.48.369.