Abuse Of Rights Research Articles

Homophobic Statements, a Bishop, and the Limits of Freedom of Expression. An In-Depth Commentary on ECtHR 31.08.2023, Amvrosios-Athanasios Lenis v. Greece, no. 47833/20

Dichiarazioni omofobe, un vescovo e i limiti della libertà di espressione. Un commento approfondito su CEDU 31.08.2023, Amvrosios-Athanasios Lenis v. Greece, no. 47833/20. ABSTRACT: The decision of the ECtHR of 31.08.2023, Amvrosios-Athanasios Lenis v. Greece (no. 47833/20), is a further step toward an increasingly dense jurisprudence on “hate speech” and the limits of freedom of expression. The public proclamation of religious doctrines that are in conflict with the values of the contracting States enshrined in the ECHR is protected to a certain extent by the fundamental right of freedom of religion and belief. However, the qualification of a statement as religious does not justify “hate speech.” The AUTHOR shows the tension between freedom of religion, freedom of expression, and protection against discrimination, and analyzes the decision against the backdrop of Article 17 of the ECHR (prohibition of abuse of rights). SOMMARIO: 1. Preliminary Remarks - 2. The Concept of Hate Speech - 3. The Facts of the Case - 4. The Procedure and Reasoning of the Court - 4.1 The ECtHR’s Preliminary Considerations on Fundamental Rights - 4.2 Legal assessment - 4.3 Some Remarks on (the Non-Invoked) Article 9 of the ECHR - 5. Concluding Remarks.

Abuse of right, unequal counter-execution, artificial debt in the context of challenging of debtor’s transactions under bankruptcy proceedings

The ambiguity of interpretation of the rules applied when challenging transactions within the framework of the initiated bankruptcy case and the absence of clear criteria for the grounds for challenging debtor’s transactions determine the reasonability of a deep comprehensive theoretical study of such categories as abuse of rights, unequal counter-execution, and artificial debt. The conducted analysis of judicial practice allowed concluding that invalid debtor’s transactions concluded with abuse of rights in order to create artificial debt or with unequal counter-execution are identified by signs, based on the personal conviction of a judge, but still allowing them to be established with a high degree of reliability. Such signs, in particular, include: economic inexpediency of a transaction, when, for example, in the presence of financial difficulties, the debtor sold the capital goods, thereby depriving himself of his main activity and profit; transfer of funds by the debtor in transit through friendly organizations, returned to the debtor in the form of a loan from a controlled organization; raising of a cash loan from individuals who do not have the financial ability to provide a loan; the supplier’s inability to deliver goods for which the debtor has incurred a debt; the absence of information about the transaction in the accounting statements of the debtor and its counterparty, etc. The authors believe that the absence of grounds for liability for intentional actions to create artificial debt and abuse of rights, the absence of clear criteria for the equivalence of counter-execution lead to the fact that unfair participants in economic turnover receive an unjustified benefit. In this regard, the authors propose to define more clearly in the law special grounds for challenging debtor’s transactions for the intentional creation of artificial credit debt, the withdrawal of debtor’s assets, and to establish grounds for liability and consequences for unfair persons.

Генезис концепции злоупотребления правом: вещно-правовой аспект (на примере римской правовой традиции)

The concept of abuse of right is being adapted in many areas of private law, including property law. At the same time, such adaptation was not originally characteristic of the abstract institution of abuse of law but developed genetically. The beginnings of the concept of abuse of law can be traced in the Roman legal tradition, which became the cradle of all modern institutions of private law. On the basis of Roman legal tradition and the absolute nature of property rights, the situation of the irrelevance of the concept of abuse of rights is traced due to the lack of competition of owners in the slave-owning formation. The theorization of the sphere of property law gave an impetus to the development of the concept of abuse of property law.

Field Research on Corruption in Private Enterprise -- Taking the "Criminal Law Amendment (12)" as an Opportunity

For a long time, the governance strategy of corruption crimes in private enterprises has been mainly based on norms and ignoring facts, which may lead to poor governance of related crimes. In terms of the governance of corruption crimes within private enterprises, the characteristics of enterprise management mode, organizational structure, and form of power distribution are ignored, which may limit the protective function of the criminal law, and even cause problems such as excessive involvement of the criminal law and abuse of rights. In terms of bribery prevention, failure to fully consider the complex forms of bribery may lead to those enterprises and their households that are still worth saving may be mired in litigation, which will further lead to negative social effects. Based on the complex reality of China's private enterprises, a localized and comprehensive corruption crime governance strategy should be put forward from the perspective of enterprises and their households.

Understanding abuse of rights in the legal positions of the Supreme Court’s Grand Chamber

Understanding abuse of rights in the legal positions of the Supreme Court’s Grand Chamber

Legal Barriers to the Application of the Doctrine of Substantive Consolidation in Bankruptcy Cases

The paper examines the relationship between the principles of property isolation of a legal entity and limited liability with the institution of material consolidation in cases of bankruptcy of corporate groups. The purpose of the paper is to formulate grounds for derogation from the basic principles of corporate law in the bankruptcy of a group of companies, based on the arguments of opponents of the application of the doctrine of material consolidation. The paper concludes that for the Russian legal system, the application of the material consolidation regime is permissible only in exceptional cases. Such include cases when there is an obvious abuse of rights on the part of the debtor, controlling persons and affiliated creditors as well as free movement of assets within the business group, the transit nature of the movement of funds through the accounts of persons included in the corporate group, the complexity of intra-group relations resulting in that it is almost impossible to understand which legal entity owns the assets.

COUNTERING ABUSE OF SUBJECTIVE RIGHTS AS EXEMPLIFIED BY THE RIGHT TO PUBLIC INFORMATION

The rights granted to individuals often create a temptation to abuse them. Abuse of rights usually violates the rights and freedoms of other people, so the legislature is right to take a negative view of it. However, this translates into specific legislative measures aimed at countering this phenomenon to varying degrees. Not infrequently, it is the addressees of legal norms, legal scholarship and the judiciary that are compelled to develop methods of countering abuses not explicitly envisaged by the legislature. The article aims to show both the methods of countering abuse of rights that are already in place and those that could be used, taking into account the axiology of a given right. The right to public information will serve as an example.

Study on the Improvement of China's Pharmaceutical Patent Term Compensation System

The implementation of the pharmaceutical patent term compensation system can greatly stimulate the research and development enthusiasm of pharmaceutical enterprises, enhance the accessibility of medicines and promote the national health level. However, the system is still in the preliminary stage of implementation, and there are still a lot of inconsistencies with the real contradictions and the national situation. Through the study, it is found that the following problems exist in the implementation of China's pharmaceutical patent term compensation system: the details of the legislative provisions have not yet been perfected, the approval process cannot exclude the malicious opposition, the interests of creation and imitation are not yet balanced, and the opposition procedure is difficult to implement. Based on this, a systematic study of the legal framework and practice of pharmaceutical patent term compensation system in other countries is conducted, and corresponding solutions to the problems are proposed, i.e., improving the legislative framework and specific provisions, optimizing the examination and approval process and regulatory mechanism, balancing the incentives for innovation and the public interest, and establishing an opposition procedure to prevent abuse of rights, with a view to contributing to the improvement of the system.

On the Boundary between the Exercise of Rights and Property Crimes

In modern rule-of-law societies, the awareness of rights is intrinsic to individuals. Despite having legitimate purposes, the exercise of rights also has lawful boundaries. In the context of criminal law, discussing the exercise of rights pertains to cases of abuse of rights through property crimes, including statutory and inherent rights. Judicial practice often leans towards exoneration in such cases, but a trend towards criminalization has emerged in recent years, necessitating a scientifically unified solution from criminal law theory. To achieve effective exoneration, it is crucial to precisely define the scope and types of rights exercised, targeting the different characteristics of ownership realization and claim realization. By clarifying the protected legal interests of property crimes and exploring the relationship between criminal and civil law, the path of excluding unlawfulness should be adopted for exoneration, decriminalizing situations with a legitimate rights basis where the means are necessary and proportionate. In cases where both the constituent elements and unlawfulness are satisfied, the presence or absence of an intent to unlawfully possess should be examined through the manifestation of claim realization. When the actor has an intent to unlawfully possess, it should be recognized as a property crime.

Legal means of protection against abuse of the right of public participation in the decision-making process in environmental matters – current situation in the Slovak Republic

The Aarhus Convention guarantees several procedural rights which the concerned public can actively use as long as it is involved in the environmental impact assessment procedure. This international treaty assumes that the affected public uses its procedural rights with the intention of ensuring the protection of the environment. In practice, however, this may not be the case. Using a specific example from Slovakia, the author points to a case where there was a suspicion that a non-governmental organization was using its subjective rights pursuing a goal other than it is required by the Aarhus Convention. The administrative authorities believed that such behavior could be an abuse of the procedural rights guaranteed by the Convention and therefore they sought legal tools within the administrative law, the use of which would not be in conflict with the Aarhus Convention. This article addresses the issue of legal limits that prevent parties from restricting the procedural rights of the concerned public guaranteed by the Aarhus Convention.

Proof and proving: legislative technique of criminal procedure laws of the Republic of Moldova and the Russian Federation

Proof and proving lies at the heart of criminal procedure regulation, significantly impacting the quality of law enforcement. In the post-Soviet states that once shared a unified legal system during the USSR dissolution, original criminal procedural laws emerged, exhibiting intriguting examples of evidence and proof rules’ layout. The purpose of the study is to discern the distinct design characteristics of evidence and prove institutions in the criminal procedure laws of the Republic of Moldova and the Russian Federation. The study’s methodological framework rests upon the general scientific principles of cognition such as objectivity, comprehensiveness, pluralism, and historicism. It employs historical, formal-logical and comparative methods, as well as document analysis. By comparing the normative models of evidence and proof institutions in Moldovan and Russian criminal procedure laws, a shared approach to the concept of evidence as a fusion of form and content becomes apparent. Distinct features of the Moldovan criminal procedure law include the systemic and structured arrangement of evidence rules, the formal adoption of the concept of a means of proof, and precise use of terminology. Conversely, the Russian criminal procedure law disperses evidence rules actoss general and specialized sections, leading to regulatory duplications and terminologicals inaccuracies. The historical roots of the evidence and proof institution layout trace back to November 20, 1864, Charter of Criminal Procedure. The Charter’s systematization of norms reflected the nuances of the pre-revolutionary Russian process. Despite the subsequent stage structuring evolution during the Soviet era and procedural form differentiation, the Soviet legislator retained the pre-revolutionary rules’ systematization on evidence. Presently, the current criminal procedure law maintains much of the previous regulatory content, highlighting essential areas for enhancement in evidence and proof institution design to allign more closely with the process’ stage structure and procedural form differentiation, thus mitigating potential abuse of rights. Addressing these design shortcomings is crucial. Rectifing Russian legistation following the comparative study allows drawing insights from Moldova’s legislative experience.

Ugovorna odstupanja zakonom uređenih nekih prava članova privrednih društava na dispozitivan način od principa srazmernosti kapital učešća u kompanijskom pravu

The diversity of legal forms of companies and their legal nature determines the different approach of a legislator to the regulation of rights of those company members. Nevertheless, the dominant determination related to organization of the form of partnerships (general partnership and limited partnership) is dispositive nature of the regulation, which enables those company members to deviate from these rules in the organization of company rights in the constitutive acts, of their own free will, and to adapt them to their interests (deviation from the proportionality principle of share in the company right). The same applies to a good extent to a limited liability company, although it is of mixed legal nature of both partnership and corporation. On the other hand, the regulation of joint stock companies (especially open – public and mostly of those closed – non-public) is mostly mandatory, reducing party autonomy in regulating the rights of shareholders to the maximum possible extent down to the level of exception. This paper discusses the issue of possible limits to party autonomy of members of partnerships, as well as members of limited liability companies, in regulating some management, property, and special rights, such as the clauses created by the so-called good business practice (leonine clauses). In addition to that, considering that constitutive acts of companies and limited liability companies are also of contractual nature (which is exclusive at the moment of establishment), along with dispositive legal basis, the consideration is taken related to the question of the application of some general institutes of the contract law in the field of limiting the principle of freedom of contract, such as public order, good (business) customs, conscientiousness and honesty, abuse of rights, creation and exploitation of a monopoly in the market, equivalence of performance, equality of contracting parties, duty of care, etc. Finally, despite the identical nature of constitutive acts of the joint-stock company, given that they have a dominantly mandatory legal basis, which narrows or excludes the freedom of contract in the regulation of some rights of shareholders in the company, the issue of special legal institutes is also considered enriching the lack or narrowing of the freedom of contract of shareholders with special legal institutes which, by the will of the law (to a lesser extent by the free will of the company shareholders – e.g. voting contracts, special shareholder benefits) adapt this form of a company to the interests of shareholders (while preserving the principle of equal treatment of shareholders or equal treatment of shareholders of the same class).

The Abuse of Right Principle in Japan and Germany

The article “The abuse of right principle between legal certainty and case-by-case justice deals with the application practice of the abuse of rights principle in Germany and Japan. As an instrument for resolving tensions between written law and the cultural and moral ideas of Japanese judges, the concept was imported to Japan in the 19th century in the course of the westernisation of the legal system. In the beginning, German and Japanese application practices were naturally very similar, but as time and historical development progressed, the two application regimes increasingly diverged. The Japanese judiciary has retained the free and little-controlled application practice of the 19th century, while the German judiciary today controls the concept much more tightly. In practice, this means that the Japanese Supreme Court does not give the lower courts any formal guidelines on application, but rather seeks to prevent grossly arbitrary applications by classifying possible arguments. The German judiciary, on the other hand, developed a complex structure of so-called case groups. Case grouping means that arguments are not classified as in Japan, but rather the actual factual constellations are conclusively determined as admissible or inadmissible. Thus, after approx. 120 years of independent development in Japan and Germany, there are considerable differences between the application practice of the prohibition of abuse of rights, despite the same starting point. The reasons for these differences are multifaceted in nature; within the framework of this paper, it was primarily possible to identify historical factors in the form of experience with arbitrary justice, cultural influences in the form of community orientation in Japan and institutional reasons in the form of court organisation.

Role of NGOs in Protecting the Rights of Indigenous Under ILO

The indigenous and people suffer serious abuses of their human rights throughout the world. They experience heavy pressure on their lands from being logged, mining, roads, conservation, construction of dams, agribusiness etc. Many countries have worked towards protecting their rights and preventing its abuse. The laws meant for protecting their human rights are often violated and sometimes they are found to be inadequate to prevent the abuse of rights of tribes. Many countries laws are inconsistent with the international human rights law too. The International Labour Organization has developed agreements and mechanisms to address the core problems of these people. These agreements are binding on the states which ratify them. The issues of tribes and indigenous people addressed by the ILO have resulted in jurisprudence recognizing their rights. This also include the rights of indigenous and tribes on par with protection of their lands, territories, resources traditionally occupied and right to a healthy environment; protection of cultural sites of religious significance; protection of cultural and physical integrity; participation in decisions that affect them and use their own cultural, social and political institutions; to be free from discrimination and to equal protection of the law. In implementing any of such laws for protection of human rights of indigenous and tribal people the international institutions like ILO and United Nation rely on the information given by NGOs and groups. They work for protecting of their human rights and fundamental freedoms. This paper analyses the role of ILO in protecting the rights of indigenous and tribes. It summarizes the role of NGOs in international standard setting which is a prerequisite for protecting the rights of indigenous and tribes.

Злоупотребление правом в автотранспортном страховании

The article is devoted to the study of problems of abuse of rights in motor insurance. As examples of abuse of right, the following are considered: cases of imposition of insurance services, the conclusion of an assignment agreement, the presentation of groundless recourse (subrogation) claims and the termination of the contract on formal grounds.

Злоупотребление правом профессиональными участниками судебного разбирательства в суде присяжных

The article examines the forms of abuse of procedural rights by professional participants in court proceedings in a jury trial, factors that determined their emergence and ways to overcome this phenomenon in legislative regulation and judicial practice. The author follows the position that abuse of rights in a jury trial consists of the actions (inactions) of participants of the proceedings, which, according to external signs, do not go beyond the limits of these rights (powers), but contradict the purpose for which they were provided to the participant of the proceedings and objectively do not correspond the purpose of legal proceedings and its principles. As a form of abuse of right on the part of the presiding judge, the article examines his refusal to wait for a juror who has not appeared, if this entails the annulment of the jury’s verdict and (or) the dissolution of the panel. It is argued that a typical abuse of law for the public prosecutor is the extra-procedural collection of information about jurors, which, in the event of a not guilty verdict, is used to justify the illegality of the composition of the jury panel that examined the criminal case. Examples of abuse of procedural rights by a defender are considered, including his use of the right to object to the presiding judge final instructions as an additional speech to the jury. Ways to minimise these forms of abuse of rights are proposed.

Механизм преодоления злоупотребления правом в досудебном уголовном производстве

Abuse of law is a complex legal phenomenon, quite heterogeneous and diverse in its manifestations. There is no consensus in science about its legal nature and essence, but scholars rightly say that such an act must be prevented and suppressed. The absence in the Russian Criminal Procedure Act of a prohibition of abuse of rights by participants in criminal proceedings, and hence of means to prevent and suppress such abuse, makes it very difficult to counter it, which creates the risk of prolonging the length of time in a criminal case, reducing the quality of its investigation and unduly restricting the rights and freedoms of participants in criminal proceedings. Authors offer their own vision of the legal nature of abuse of rights in criminal proceedings, cite typical examples of it, build a mechanism for overcoming abuse of rights in pre-trial criminal proceedings, naming its necessary elements and content, indicating the reasons for its creation. It is concluded that a legal basis for the establishment of such a mechanism in criminal proceedings is necessary. It is summarised that the introduction into the Code of Criminal Procedure of a prohibition against the abuse of rights parties to criminal proceedings will make it possible to counteract its manifestations by means of general and private prevention and the suppression of such an act.

2023년 민법(물권법 및 채권법) 중요 판례 평석

In this paper, among the major precedents of the Supreme Court on civil matters in the year of 2023, I analyzed the meaning and contents of 7 important decisions (focused on the law of real rights and claims). The Supreme Court explicitly ruled for the first time that in the so-called ‘mutual deprivation of the possession of his/her property,’ the claim for recovery of possession by the preceding encroacher could not be allowed. The Supreme Court repeatedly has held that claims by road site owners to local governments for land handover, road demolition, and traffic closures are, in principle, an abuse of rights. With respect to the claims of unjust enrichment, the Supreme Court also repeatedly states the legal principles of abandoning the exclusive right to use and profit. Although the legal principle is controversial in academia, in practice, it is firmly established as a useful legal principle in determining whether a claim for return of unjust enrichment is accept or not between the road site owners and the local governments. The Supreme Court explicitly ruled for the first time that a third party who acquired ownership after the unauthorized rental act by a person having a right of retention can also exercise the right to demand the extinction of the right of retention. In the past three years, there have been three Supreme Court rulings, including the target judgment in 2023, on issues that have been mainly disputed in academic fields regarding the right to demand the extinction of the right of retention, and it seems that many of the major issues regarding the right to demand the extinction of the right of retention have been settled through precedents. For the second time since 2017, the Supreme Court applied the ‘high probability theory with respect to obligee’s right of revocation’ to determine whether a claim based on continuous product supply contract arising after a fraudulent transfer is a claim protected by the law of revocation of the fraudulent transfer.

Some aspects of the abuse of rights in civil and economic proceedings

The article is devoted to the analysis of abuse of procedural rights in civil and economic proceedings. The views and approaches to the problem of abuse of rights available in the legal literature are considered.
 Based on the review of scientific literature, the conclusion has been made that there are two general theoretical constructs for understanding the concept of “abuse of procedural rights” within the framework of two approaches. The first approach involves the definition of abuse of procedural rights as misuse of procedural rights, and the second approach – as a type of procedural offence. The article analyses the national legislation on the subject matter of the study.
 It is argued that the abuse of procedural rights is a certain situation which participants to court proceedings find themselves in, whose rights are violated and are directly related to the rights of the person who abuses them. The exercise of procedural rights is carried out by one party to the dispute within certain limits, as long as it does not contradict the interests of the other party. Violation of these limits leads to the emergence and existence of such a legal phenomenon as abuse of rights.
 It is established that abuse of procedural rights means that one of the parties to a dispute, which formally has certain rights, unlawfully exercises them, violating the extent and type of behaviour defined by the procedural law, while taking advantage of the fact that these rights cannot be objectively clearly defined by means of direct prohibitions. In other words, when exercising their rights, the parties to the dispute do not take into account all the actual circumstances and do not take into account the possible harm to each other’s interests.
 Attention is drawn to the fact that the diversity of procedural rights in civil and commercial proceedings gives rise to a corresponding number of types of their abuse by the parties to a case. Due to the absence of a clear list in current legislation of the types of abuse of procedural rights and the existence of certain judicial practice in resolving this category of cases, it should be noted that there are various classifications by scholars.

Information Placement in Notarial Registries: Issues with Evaluating the Actions of Participants

Within the framework of improving legislation, the Federal Notary Chamber has been entrusted with the responsibility of maintaining a registry of notifications regarding the pledge of movable property and the cancellation of powers of attorney executed in simple written form. It should be noted that these changes have a positive impact on civil transactions. However, there are specific questions regarding the procedure for their implementation. The main issue is that neither the notary nor the person posting the relevant information about the pledge or cancellation of powers of attorney is held responsible for the accuracy of the information, which allows for the possibility of abuse. In defining the purpose of this research, attention should be paid to the evaluation and analysis of the procedural and legal aspects of maintaining the aforementioned registries, identifying specific cases of abuse of rights by individuals posting information in the respective registries. This necessitates finding a solution to the stated problem, namely: clarifying the procedure and limits of actions for the parties involved in the relevant legal relationships in order to prevent the possibility of their misconduct. The research is based on general scientific methods of cognition and legal hermeneutics. During the analysis of current legislation and legal practices, it has been determined that in the existing reality, there is a possibility of abuse by individuals posting information in notarial registries regarding the cancellation of powers of attorney and the registry of notifications about pledges. The legislation does not provide indications of sanctions against individuals who violate the prescribed registry procedure. The presumption of notification from the moment the information is posted in the registry by an interested party, despite possible errors that compromise the accuracy of electronic search or distortions in the information, which prevent proper identification of the sought-after object, leads to violations of property rights of participants in civil transactions.