Reasons Why Inflicting Harm is not a Sufficient Indicator of Abuse of the Right

Abstract

One of the most difficult issues of civil law is the determination of the criteria for abuse of rights prohibited by Article 10 of the Civil Code of the Russian Federation. Among numerous points of view on this issue, the following has become very widespread in judicial practice: an abuse of the right can be established based on the negative consequences that have occurred for third parties as a result of the exercise of the right. Since these consequences are evident, then the exercise of the right constituted an abuse. Substantial support for this approach is provided by the Constitutional Court of the Russian Federation opining that the rule of Art. 10 of the Civil Code of the Russian Federation is aimed at implementing the principle enshrined in Part 3 of Art. 17 of the Constitution of the Russian Federation. Having studied the origins of this point of view and its legal foundations, the author noted a number of inherent shortcomings. In particular, this point of view does not distinguish between inflicting unacceptable harm and admissible actions causing harm to another person; it does not take into account the competition of legal norms; it does not take into account that causing harm prohibited by law is an offense and, therefore, it is not an act of exercising subjective rights. These and other shortcomings of the concept of causing harm, noted by the author of the paper, lead to the conclusion that the feature of “causing harm” in itself is insufficient to qualify the act as an act of abuse of the right and the application of Art. 10 of the Civil Code of the Russian Federation. In addition to the indicated feature, which is a prerequisite for the application of Art. 10 of the Civil Code of the Russian Federation, the court must establish another (key) factor, namely: the fact that, in its opinion, allows to distinguish between legal abuse and other lawful and unlawful phenomena.