principles of law - is the fundamental base, determining the main directions of development of the legislation.In practical terms, they are a bridge between society and the laws of motion of the legal system, which is formed by the company.That principles eventually adapt the legal system to the realities of social life.
legal principles are classified into common law, cross-sectoral and sectoral.Each of these groups contains principles that reflect the content of the right to an appropriate level.For general legal concern:
- the rule of law, which claims universal validity of the law to all other burrows regulation of public relations;
- the principle of the rule of law, providing that the state is obliged to clearly and articulate your limitations, to avoid any subjective mating anyone;
- equality before the law suggests that, despite the different political, social and financial status, the citizens themselves organs of the state are equal before the law;
- the principle of mutual responsibility means that the state itself assumes the obligation to ensure freedom of the individual, but the person agrees to comply with the general rules established by law;
- the principle of fault liability is that liability may occur only if the legal procedure to be proved.
Interbranch principles reflect the logical and meaningful communication between different branches of law or general, which is contained in several related industries.
Industry principles reflect the specific characteristics of local content law in a particular sector.
As the experience of law enforcement, the balance of interests, the equilibrium state, "golden mean" - these are ideal situations, in which the principles of the right to provide the same opportunity to meet the interests of entities involved in the relationship.General principles of law stipulate that any deviation is expressed and is characterized by positive or negative.Deviations may be dependent on the will of both involved, and the objective reasons.A kind of "deviation" from the ideal state of the legal regulation acts abuse of the right, which is entirely dependent on the will and there is involved in the relationship of the subject, and this totally violates the basic principles of law.
literal interpretation of the rules, qualifying abuse of the right leads to the conclusion that the legislator does not even an indicative list of any form, but only indicates that the abuse of rights can take place "in different forms."By itself, such an approach violates the principles of law sector, in particular, such as the principle of equality of all before the law.
narrowness of this provision logically confronts scientists and law enforcers question: abuse of the right - it is an offense or not?
in legal science is not formed a unified point of view on the nature of abuse of rights, and the answer to the question of the lawfulness of his relate to offenses or not remains open.It does not reflect the fundamental principles and rights, which include the rule, rule of law, mutual responsibility of the individual and the state, equality, the existence of guilt.There is no consensus on the issue in legal theory.
Russian researchers Sergeev and T. Tereshchenko considered as a kind of abuse of the right in bad faith in negotiations, and in general breach of trust company - a special type of offense.This opinion on the qualifications of the abuse and support the AVWolves, citing as interpreted principles of law.
similar position is shared by the OAPortico considering abuse as an offense and to identify four conditions that allow it to qualify this way:
- the illegality of the act;
- the establishment of damages (harm);
- a causal link with the wrongful act matured harm;
- wine abusing the right person.
Some researchers classify abuse of the right (chicane) as "a certain kind of offense," which, however, does not involve the application of measures of liability, but allows us to characterize the consequence of abuse of rights as a refusal by the court to protect the right.Others are critical of the abuse of the right as an offense, believing that the act is subject to abuse the rights granted to him in the law of the subjective right.One of the arguments in favor of this view: the abuse of the right of the obligation is not delicate and subject only denied judicial protection.
In this case such a denial of judicial protection is considered as an immediate sanction for the offense, but the sanction it is understood from the perspective of a common structure of the rule of law: if there is a hypothesis, it means to be a sanction, which does not correspond to the content, which contain the principles of law.There is also an intermediate treatment of the abuse of rights is not possible to be attributed either to the offense or to lawful behavior.
variety of approaches to the abuse as an offense, meanwhile, allows you to evaluate the positive and negative aspects of each.If the law beyond the framework of the law, a special rule of liability to the subject apply these legal consequences if the law to go beyond the norm is not regulated and the court qualified the act as an abuse of the right, while the measure applied to have abused the law, it is a denial of the judiciaryProtection.
Also important is the fact that such a failure - it is the only legal consequence of abuse of law in establishing this fact.Practically, this means that other effects do not apply.
