History of the development of the institute of law abuse in the states of the romano-german legal family

Abstract

The article provides a historical analysis of the institution of abuse of law in the states of the Romano- Germanic legal family. In particular, with the help of a set of philosophical-worldview, general scientific, special scientific methods (primarily, dialectical, historical-legal and comparative-legal) and principles of scientific knowledge, the evolution of theoretical ideas about the abuse of law, their consolidation in legislation and practical implementation in individual states of the Romano-Germanic legal family (Germany, Austria, Switzerland, Spain, France). It is argued that modern ideas about the abuse of law are based on the provisions of Roman law. Theoretical approaches to the abuse of law contained in the works of leading European legal scholars (A. Binder, T. Geise, W. Erman, L. Dugis, W. Siebert, V. Roberto and others) were analyzed. On the basis of a comparative analysis of normative legal acts regulating the issue of abuse of law (German Civil Code, Austrian Civil Code, Civil Codes of Switzerland, Spain and France), characteristic features and general trends of the legal establishment of the category “abuse of law” in the states of the Romano- Germanic legal system have been revealed family. It was established that theoretical approaches to understanding the category of “law abuse” were most actively developed by scientists in Germany and France. In particular, general approaches to the essence and features of the abuse of the right have been developed, mechanisms for counteracting the harmful exercise of the right, etc. have been proposed. At the same time, the legislation of Germany, Austria, Switzerland, Spain and France also uses the experience of other countries, transforming it through their own culture and traditions. This is due to certain features of the legislative establishment of the inadmissibility of the abuse of the right. It was concluded that due to the existence in the states of the Romano-Germanic legal family of a general ban on the abuse of law, legal science had the opportunity to investigate not only specific cases of unfair exercise of the law, but also the phenomenon of abuse of law in general.