Principles of law and abuse of law: the theoretical aspect

The principles of law are the fundamental grounds that determine the main directions of the 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, in the final analysis, that adapt the system of law to the realities of public life.

Legal principles are classified into general legal, interbranch and sectoral. Each of these groups contains principles that reflect the content of the law at the appropriate level. Common law includes:

- the rule of law, which establishes the universality of the law in front of all other burrows of public relations regulation;

- the principle of legality, which stipulates that the state is obliged to clearly and clearly formulate its limitations in order to exclude the possibility of subjective takings by anyone;

- equality of all before the law presupposes that, in spite of different political, social and material conditions, citizens and the organs of the state are equal before the law;

- the principle of mutual responsibility means that the state itself assumes the obligation to ensure the freedoms of the individual, but at the same time the individual assumes the duty to obey the general rules established by law;

- the principle of responsibility in the presence of guilt lies in the fact that liability can only occur if it is legally proven.

Cross-sectoral principles reflect the logical and informative 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 possibility to equally observe the interests of the actors participating in the relationship. The general principles of law establish that any deviation has its expression and is characterized positively or negatively. Deviations may be dependent on both the will of the participants and the objective reasons. A kind of "deviation" from the ideal state of legal regulation is the abuse of a right that is wholly dependent and arises from the will of the entity participating in the relationship, which violates the fundamental principles of law in its entirety.

A literal interpretation of the norms that characterize the abuse of law allows us to conclude that the legislator does not give at least an approximate list of any forms, but merely points out that abuse of law can take place "in other forms." By itself such an approach violates the branch principles of law, in particular, such as the principle of equality of all before the law.

The narrowness of this rule makes it logical for scientists and law enforcers to question whether the abuse of law is an offense or not?

In the legal science there was not formed a single point of view about the nature of abuse of law, and the answer to the question whether it is lawful to refer it to offenses or not remains open. This does not reflect the fundamental principles of law, which include the rule, legality, mutual responsibility of the individual and the state, equality, guilt. There is no unity of opinion on this issue and in legal theory.

Russian researchers A. Sergeev and T. Tereshchenko are considered as a form of abuse of the right of dishonesty in the conduct of negotiations, and in general abuse of the counterparty's confidence is a special kind of offense. This opinion on the abuse qualification is supported by A.V. Volkov, referring to the interpretation of the principles of law.

A similar position is shared by O.A. Portikov, considering abuse as an offense and singling out four conditions that would qualify him in this way:

- illegality of the act;

- establishment of losses (harm);

- the existence of a causal link between the wrongful act and the harm that has come;

- The fault of a person abusing a right.

A number of researchers characterize the abuse of law (chicane) as "a certain type of offense", which, however, does not entail the application of liability measures, but allows describing the consequence of abuse of rights as a court's refusal to protect the law. Others are critical of the abuse of law as an offense, believing that the act of an abusive subject is in the field of subjective law granted to him. One of the arguments in defense of this point of view: when the right is abused there is no delicate commitment, and the subject just refuses judicial protection.

However, such a refusal in judicial protection is considered a direct sanction for an offense, but sanction is understood from the standpoint of the generally accepted design of the law 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 also an intermediate interpretation: abuse of law can not be attributed either to an offense or to lawful behavior.

The variety of approaches to abuse as an offense, meanwhile, allows to assess the positive and negative aspects of each of them. If the law provides for a special liability rule when going beyond the limits of the law, the specified legal consequences apply to the subject if the law does not outline the scope of the norm and the court has characterized the act as an abuse of law, then the measure applied to the abused law is the refusal of the judicial Protection.

It is also important that such a refusal is the only legal consequence of the abuse of the right to establish this fact. In fact, this means that other consequences are not applicable.