Установление факта шиканы в праве России и Германии

Abstract

The concept of chicanery is developed based on the analysis of domestic and German law experience, its necessary features are analyzed within the framework of this article. In particular, the chicane (with some exceptions) is proposed to be understood as the exercise of a right with the decisive aim of causing harm to another person. In the context of qualifying the behavior of legal persons as a chicanery, it is proposed to be guided, first of all, not by the immediate legal goal of exercising the right, but by its motive, and ignore the legal bearing of the actual consequences of exercising the right. In contrast to the approach used in German law, in the Russian legal system it is proposed to be guided by a three-stage test when establishing the fact of a chicanery: 1) identifying the actual purpose of exercising the right; 2) establishing the possibility of obtaining benefits at the time of exercising the right; 3) the presence / absence of the fact of economic benefit due to the exercise of the right. The author comes to the conclusion that the possibility of committing a chicanery in connection with the exercise of business operation cannot be ruled out, however, the meaning put into the category of chicanery should be uniform and not depend on the nature of the performed activity.