ABUSE OF PROCEDURAL RIGHTS

Apply

ABUSE OF PROCEDURAL RIGHTS

Journal Title: Зовнішня торгівля: економіка, фінанси, право - Year 2017, Vol 5, Issue 94

Abstract

Background. For the first time, the term «abuse of right» («abuse de droit») was used by well-known Belgian lawyer F. Laurent who used it for designation of a number of typical, recurring situations connected with the unfair exercise of rights by the right holder which took place in French civil law. Currently, this construction is widely used in the laws and doctrines of foreign countries. The innovation of procedural legislation of Ukraine stipulates the necessity of a comprehensive theoretical study of this phenomenon. Analysis of recent research and publications. Many scholars consider abuse of procedural rights as an unlawful, harmful procedural action (inaction) of an unscrupulous authorized person, directed against the interests of justice and the procedural rights of other participants of the process. The aim of the article is a comprehensive system analysis of theoretical approaches to the definition of phenomenon of abuse of procedural rights by participants of the process. Materials and methods. The scientific works of scientists from various fields of law, who in one way or another studied the problems of abuse of the law in general and procedural rights in particular were the theoretical basis of the article. Such methods of cognition were used: philosophical (dialectical, hermeneutic); general scientific (analysis and synthesis, systemic-structural, modelling, abstracting, formal-logical, historical) and special (interpretation of the rules of law, legal-dogmatic, comparative legal). The results of the research. Despite the lack of legal regulation of the notion of abuse of rights in domestic procedural law, the results of the analysis of literature on the above-mentioned issues indicate that there is currently pluralism of thoughts and approaches to identification of the phenomenon of abuse of the law in general and the abuse of procedural rights in particular, which can be systematized by combining in several approaches. The first methodological approach relates to the negation of the phenomenon of «abuse of law» and its use in doctrine and legislation. Such an approach does not correspond to the current state of legal science development, which has changed its paradigmatic orientation to natural law thinking. In our opinion, an outdated dogma and consideration of this problem through the prism of dichotomy law / unlawfulness is unjustified, as along with the specified pair such categories as justice / injustice, conscientiousness / unfairness, etc. are increasingly included in the matter of practice of the application of procedural legislation, therefore, now doctrinal ideas about the procedural behaviour of the parties in the context of international standards of fair trial should be expanded. In addition, to deny the existence of the phenomenon «abuse of rights» means not to notice current trends in the sphere of administration of justice in civil, commercial and administrative matters. Consequently, in our opinion, second approach that recognizes the existence of the phenomenon «abuse of procedural rights» is more promising. Conclusion. The conducted analysis reveals the flaws of certain approaches that developed in the scientific literature regarding the notion of abuse of procedural rights. At present, there is a need to distinguish one more – an integrated approach to the phenomenon of abuse of the law, on which the methodology of the study of the identified problem should be based. Such an approach should be based, firstly, on the peculiarities of the procedural form and procedural relations between the court and the participants of justice; secondly, on the peculiarity of the method and means of legal regulation of procedural branches of law; thirdly, on a direct connection of the abuse of procedural rights with such phenomena as procedural offense and procedural liability; fourthly, on the historical connection of the phenomenon of abuse of the law with the principle of procedural fairness; fifthly, on the specifics of the principles of economic and administrative justice.

Authors and Affiliations

Serhiy BAZYLEVSKYI

Keywords

EP ID EP248306
DOI -
Views 116
Downloads 0