Shikana - abuse of law ( lat. Aemulatio ), consisting in the use of his subjective right, given by force of law or contract , with the aim of harming another person or another purpose (in a different form). Another form may be, for example, pursuing the goal of enrichment or saving of one’s funds at the expense of another person.
Content
- 1 Consumption
- 2 Example
- 3 See also
- 4 Literature
- 5 Links
Consumption
The term “ban on chicanes” ( German Schikaneverbot , from French chicaner - torment because of swollen trifles ) is used in German law ( § 226 BGB ); it is not provided for by Russian legislation, but is used in Russian legal literature. The essence of this situation is that the exercise of this right harms other people, and whether the holder of the law pursues this goal is secondary. This norm in Russian law is described in Art. 10 Civil Code of the Russian Federation . The scope of its application is exclusively judicial, since it is explicitly stated that only the court can apply it (refuse to protect the right used for the purposes described above).
Example
For example, the court has the right to refuse to terminate the contract, which was paid in installments in full, but with violations that give the right to terminate it (say, a few delays in the payment schedule) if the price of these services or goods during the time of payment is substantial increased and the person obliged to provide paid goods or services wants to terminate the contract. In this case, we will talk about another form of abuse of the right - the desire to sell a product or service at current prices, thereby increasing their profits by reselling to another person.
See also
- Principle of legal certainty
Literature
- Gerasimova O. L. Abuse of law // Justice in Eastern Siberia . - 2003. - No. 2-3 (10-11) .
- Gribanov V.P. Implementation and protection of civil rights.
- Yatsenko T. S. Category of chicanes in civil law: history and modernity. - M.: Statute, 2003 .-- 157 p. - 2,000 copies. - ISBN 5-8354-0158-2