Phenomenon of legal abuse: “artificial lawfulness” or “hidden illegality”?

Abstract

The article reveals the content and nature of such phenomenon as legal abuse. It quotes scientists who give different characteristics to this phenomenon as a kind of illegal behavior, a lawful act or an independent type of legal behavior. It also gives critical assessment of the position that denies the existence of the phenomenon of legal abuse, arguing that despite its complex and contradictory nature, it cannot be ignored as a phenomenon of legal reality. The possibility of characterizing legal abuse as a lawful act is assessed, given that in any case there is an encroachment on the rights and freedoms of others. The difference between the categories of “legal abuse” and “offense” is analyzed, as well as legal consequences that may arise from the behavior of the subject, containing signs of legal abuse, but not direct violation of legal norms. Mechanisms of refusal to exercise the right, refusal to protect it or bring to justice in case of legal abuse are considered. It is alleged that legal abuse as a manifestation of dishonest conduct may indicate the subject’s desire to violate a legal prohibition or avoid fulfilling a legal obligation. Such behavior may seem legitimate in its form based of external signs, however, it may actually be illegal in its content. It is argued that the actions of the subject which contain signs of abuse of rights, despite the “artificial legitimacy”, may be subject to revaluation and re-qualification, and may be considered illegal if there are sufficient grounds. It is emphasized that the relevant reassessment may not be carried out arbitrarily, but only in the way and manner prescribed by law, by the entity with such competence. It is concluded that different legal assessments and the application of different legal consequences are necessary in a situation where, on the one hand, legal abuse is subject to proper legal regulation through artificial schemes to circumvent legal requirements, and on the other if there are legal gaps and conflicts.