The principles of law are fundamental principles,Determining the main directions of the development of legislation. In practical terms, they are a kind of bridge between the laws of the movement of society and the legal system that is formed by this society. It is the principles, in the final analysis, that adapt the system of law to the realities of public life.
The legal principles are classified into general,interbranch and industry. Each of these groups contains principles that reflect the content of the law at the appropriate level. Common law includes:
- the rule of law, which establishes the universality of the law in front of all other burrows of public relations regulation;
- the principle of legality, which stipulates that the state is obliged to clearly and clearly formulate its limitations in order to exclude the possibility of subjective takings by anyone;
- The equality of all before the law presupposes that, despite the different political, social and financial situation, the citizens and the organs of the state are equal before the law;
- the principle of mutual responsibility means thatthe state itself assumes the obligation to ensure the freedoms of the individual, but at the same time the individual assumes the duty to obey the general rules established by law;
- the principle of liability in the presence of guilt lies in the fact that liability can only occur if it is legally proven.
Interindustry principles reflect the logical and substantive links between different branches of law or the general that is contained in several related branches.
Industry principles reflect local specific features of the content of law in a particular industry.
As experience of law enforcement, balanceinterests, the equilibrium state, the "golden mean" are those ideal situations in which the principles of law provide for the ability to equally observe the interests of the actors participating in the relationship. The general principles of law establish that any deviation has its expression and is characterized positively or negatively. Deviations may be dependent on both the will of the participants and the objective reasons. A kind of "deviation" from the ideal state of legal settlement is the abuse of a right that is wholly dependent and arises from the will of the subject participating in the relationship, which violates the fundamental principles of law in its entirety.
A literal interpretation of the norms qualifyingabuse of law, allows us to conclude that the legislator does not give at least an approximate list of any forms, but only points out that abuse of law can take place and "in other forms." By itself such an approach violates the branch principles of law, in particular, such as the principle of equality of all before the law.
The narrowness of this rule makes it logical for scientists and law enforcement professionals to question whether the abuse of law is an offense or not?
In the legal science did not form a single pointview of the nature of abuse of law, and the answer to the question whether it is lawful to refer it to offenses or not, remains open. This does not reflect the fundamental principles of law, which include the rule, legality, mutual responsibility of the individual and the state, equality, guilt. There is no unity of opinion on this issue and in legal theory.
Russian researchers A. Sergeev and T. Tereshchenko is considered as a form of abuse of the right dishonesty in negotiating, and in general abuse of the counterparty's confidence is a special kind of an offense. This opinion on the abuse qualification is supported by A.V. Volkov, referring to the interpretation of the principles of law.
A similar position is held by OA. Portikov, considering abuse as an offense and singling out four conditions that would qualify him in this way:
- illegality of the act;
- establishment of losses (harm);
- the existence of a causal link between the wrongful act and the harm that has come;
- The fault of a person abusing a right.
A number of researchers characterize abuselaw (chicane) as "a certain type of offense", which, however, does not entail the application of liability measures, but allows us to characterize the consequence of abuse of rights as a refusal by the court to protect the law. Others are critical of the abuse of law as an offense, believing that the act of an abusive subject is in the field of subjective law granted to him. One of the arguments in defense of this point of view is that there is no delicate commitment when the law is abused, and the subject only refuses judicial protection.
At the same time, such a refusal in judicial protectionare considered as immediate sanction for an offense, but sanction is understood from the standpoint of the generally accepted design of the law itself: if there is a hypothesis, then there must be a sanction, and this does not correspond to the content that contains the principles of law. There is also an intermediate interpretation: abuse of law can not be attributed either to an offense or to lawful behavior.
The diversity of approaches to abuse bothto the offense, meanwhile, allows to assess the positive and negative aspects of each of them. If the law provides for a special liability rule when going beyond the limits of the law, the specified legal consequences apply to the subject if the law does not outline the scope of the norm and the court has characterized the act as an abuse of law, then the measure applied to the abused law is a refusal in the judicial protection.
It is also important that such a refusal is the only legal consequence of the abuse of the right to establish this fact. In fact, this means that other consequences are not applicable.</ p>