ABUSE OF RIGHTS AND SOME OF ITS MANIFOLD MANIFESTATIONS IN PRIVATE LAW
Journal Title: Globalization, the State and the Individual - Year 2019, Vol 0, Issue
Abstract
The abuse of rights in the Bulgarian legislation is regulated both at constitutional level and in some general provisions of major civil law acts, along with in a number of other special provisions. ‘The abuse of rights is defined as a deliberate inconstant exercise of subjective rights without an interest and/or justified motives, without obvious and actual benefits, with the objective of violating the rights and legitimate interests of others or contrary to the public interest, as well as in cases of a significant discrepancy between the purpose of the right as granted by law and the purpose for which it is used. The polemics between the so-called ‘objective’ and ‘subjective’ theory on the abuse of rights is still ongoing. There are arguments in support of the ‘subjective’ theory, according to which it is not possible for a right to be exercised in a manner and with objectives that are inconsistent with its social function, violating the public interest or affecting another person’s subjective rights, and at the same time not being guilty and unlawful. The legal consequences of the inconstant exercise of subjective rights are hereby outlined. Special emphasis is placed on certain manifestations of the abuse of rights in private law, particular, the abuse of rights by circumvention of substantive law. To that end, a detailed examination of Article 26, paragraph 1, second indent of the Law on Obligations and Contracts is provided. The article discusses new hypotheses on the abuse of rights – e.g. through circumvention of procedural law, and in particular through negotiation of arbitration regarding disputes to amend a privatization contract, which circumvents the prohibition under the Privatization Act, as well as Article 19, paragraph 1 of the Code of Civil Procedure, excluding certain disputes from the arbitration jurisdiction.
Authors and Affiliations
Ivan Roustchev
Keywords
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