Contributions to the theory of abuse of right

Dumitru Baltag, dr. hab., professor
Gheorghe Tragone, PhD student

The concept of abuse of rights is relatively new and at the same time, questionable for science General Theory of Law. This article reflects the opinions of reference in terms of theories, issues that could be integrated into this concept. Setting subjective rights of individuals and their implementation in good faith is immeasurable practical importance. The problem is to determine the essence of this concept. Dilemma materialized to accept the status of abuse of rights or qualify this phrase as an unlawful act, which would have consequences for liability. Keywords: subjective rights, abuse of rights, the subjective theory of abuse of rights, objective theory of abuse of rights, abuse of right classification, principles of abuse of rights, the exercise of a subjective right

Contribuții la teoria abuzului de drept Conceptul de abuz de drept este relativ nou și, în același timp, sub semnul întrebării în ştiinţa Teoriei generale a dreptului. Acest articol reflectă opiniile de referință în materie de teorii, probleme care ar putea fi integrate în acest concept. Problema este de a determina esența acestui concept. Cuvinte cheie: drepturi subiective, abuz de drept, teoria subiectivă a abuzului de drept, teoria obiectivă de abuz de drept, principiile abuzului de drept, exercitarea unui drept subiectiv

General theory of law is a key to the unit and the constant studying law concepts, categories, principles and basics of it. Legal theory can’t ignore the structural analysis of this phenomenon, its ways of particular expression would be found in construction, they carry.

One of the most difficult issues facing those who study law is the problem of realization and implementation of law. Realization of law is a process. This process involves behavior, which must correspond to the spirit and letter of the law. Then, when this behavior does not meet these rigor, when legal norms are violated by subjects, we meet two new categories: abuse of rights and fraud by law as related issues, inextricably linked to the relationship between the spirit and the letter of the law and in while relevant to the general theory of law.

To highlight the spirit of the law, the purpose contemplated by the legislature when regulated the behavior of subject1. As mentioned I. Craiovan, quoting Hegel “right field is, in general, what is spiritual and nearest place, and its starting point is the will, which is free, so that freedom is the substance and determination of it, and law system is the field of freedom wrought, the spirit world products by itself as second nature”2.

Is to determine if the subject of law do anything with subjective rights, given under the law that is currently free choice of variant behaviors. This option may not result solely from the pleasure of the subject. It results from the letter of the law. Letter of the law requires us to exact literal interpretation of the content of the law, the content of legal rules. This behavior can’t fall outside the requirement of Art. 55 of the Constitution of the Republic of Moldova ‘exercise of the rights and freedoms”. “Any person exercising constitutional rights and freedoms in good faith, without infringing the rights and freedoms of others”. In this sense, legal rules guide, influence and determine behavior of law subjects. The subjects often show trends adherence to legal norms and values promoted by the society, conforming to them, sometimes these rules are violated or neglected3.

In case of abuse of rights, rights, freedoms conferred by legal rules to subjects are exercised in good faith, not achieved the goal, the objective pursued by the legislature in violation of thus spirit of the law. and when it occurs, it is broken “rule of law”, which threatens the rights and interests of any issue of law, or vice versa — it is used illegally, unless it can produce negative consequences for everyone protected by the legislature.4

Topicality is a tendency to generalize the abuse of rights as determined by legislative instability and reinterpretation of good faith in the conduct of legal topics of law, abuse of rights is a constant presence in all our legal spheres. They are virtuous and primitive practice, depending on the actual subjective right holder. Today in our society we see a tendency in abuse of right of the government to the governed. Moral sense of the participant in the legal relationship is no longer seen as a virtue, than in the small and exclusive and expressly declare certain values seem often a sign of abuse is made inadaptability methodically direct interest of the right holder subjective, justifying any behavior, and the “guilty” no longer has any conscience problems, he acts as do many others. Thus, widespread abuse neutralize individual guilt”5.

Starting from the idea that “logic requires scientific conclusion, that, no state has a monopoly as true that everywhere positive law contains and produces unjust that only recipients can evaluate”6, we consider that abuse of rights can not only result in bad faith exercise of subjective rights, but sometimes a form of protest of rights holders to the way in which it was recognized. However, no matter how “unfair” it would be legal norms, they must be followed exactly, but they tend to be abused is even more pronounced, with the degree of injustice is higher, for example, generates excessive taxation abuses by taxpayers7.

Importance of tackling abuse of rights in terms of the general theory of law is given so that gives an overview of abuse of law, as well marking distinct and special elements of abuse of rights in different branches. If until now have developed specialized studies devoted to some form of abuse of rights, this work analyzes the concept in a different approach following a generalization, a summary based on the study of law in question.

The problem of abuse of rights has a long history. Origin of abuse of rights theory is not easily determined because there are several opinions contrary to this topic, so we can conclude that the theory of abuse of rights is viewed through the prism of two diametrically opposite concepts, the subjective and objective, concepts that have subsequently guided the spirit of the laws of different countries.

Thus, the subjective theory advocates argue that this theory falls within the exclusive ownership, appearing in French jurisprudence empire at the end of sec. XIX. Others followers objective theory, which we rally and we argue that the theory of abuse of rights is not limited to real rights8.

Romanian lowers faced with the fact that subjective right holder shall exercise the right given by law to the detriment of others. For example, the owner of the land, building a house, shady part of the garden by the neighbor or prevent passage through its territory or waters within its territory. This created a situation where the land owner, realizing the right of possession, use and disposition, violates the interests of others. However, Roman jurists denied in these cases the possibility of abuse of rights (nollusvideturdolu making, qui jure suoutitur — nobody considered abusive activated when exercising its right).

Question, if we can use the right to make bad (especially given the well-known phrase Ulpian that “good art is right and equity”) and nowadays is a controversial one.

Latin word “abus” does not speak of abuse, but on the record, exhausting thing as Ulpian digestion9, and a current dictionary Latin abusus qualify as “full use of it”10. Roman jurist consults have not bothered to provide a scholarly theory, but they found practical solutions in specific cases. In case of abuse of rights, things were the same, witness the numerous maximum retained and coded in various collections. Thus, we have maximum like “quo suo jure utitur, nimenem laedit”11 (one who exercises his right not hurt anyone), but the formula “sie utero alienumtuout non laedus” (a person must use the right so, that they do not disturb other). “Feci sed jure feci” (rights that could be exercised without selfish purpose and care of damage caused, exercised according to the law), is a principle that has been applied only with significant reservations in admitting Roman law is also “malitus non est indulgendum” (evil is not granted leniency)12.

Roman law known also two related notions of abuse of law: fraud law and the principle of good faith, in the words of Paolo “contra legem facit, quid id facit, quod lex prohibet; in fraudem vero, qui salvis verbis legis sentimentiam eius circumvenit” (talking about the spirit of the law to the detriment of formal or literary meaning of it). It was also a distinction between good faith (bona fides) and equity and contracts in good faith was defended by the mechanism “exceptio doli ‘(the good faith exception). Cicero, defined good faith in perception of two compliance: veritas (sincerity in words) and consistency (fidelity to commitments), revealing for the first time, its psychological substrate by Maxima “simper autem in senseris quid fide, non quid diheris cogitandum”13 (true good faith based on intent rather than words).

Should be noted that the maximum effect is preserved in Moldova’s Civil Code art. 725 para. (2) “The Contract shall be construed as common intention of the parties, but are not limited to the literal meaning of the words used.”

Law of the Middle Ages did not depart from the Roman jurist consults solutions dedicated to addressing the abuse case. Legal practice, from the “small events” had to establish abuse of rights theory construction. For example, Parliament of Aix, on February 1, 1557, is punishing the owner of a machine for combing wool, who played for the sole purpose of a lawyer inopportune neighbor.

Another example is a decision of the Court of Colmar, 2 May 1885 (building a cart for the sole purpose of shade to neighbor), which notes the need to limit subjective rights to a “serious and legitimate interest” interest to whose rights have been recognized, their subordination and equitable principles of morality, sense of good faith14.

Also extended its application to real property rights and the rights of Procedure. A decision of the High Court 1365 French obliged to pay a fine on a caller whose application was intended only to delay the normal procedures15. However, recent French doctrine16 denying the merit of jurisprudence, arguing that the true construction of this institution belongs to them.

Civil Code of Austria (Prussia in 1794) held for the first time in a codified law phrase “abuse of rights” as a general principle applicable to all subjective rights. Against Roman law and customary law observed no intention to harm as constituting abuse of rights. Abuse is dedicated to all intent and only without considering the effect of the Civil Code of Montenegro, still in 1888 sanctioned the right for the sole purpose of cause another injury17.

The idea of abuse of rights is not in the French Civil Code of 1804, but had to rule in a case concerning administrative provisions of the State Council established the concept of “misuse of power” applied later in legislation. Neither the Austrian Civil Code of 1811 is no longer present this institution, art. 1305 including a provision that would even suggest incompatibility concept of abuse: “who makes use of his right to legal limits shall not be liable for damage that would result from this abuse.” These codes, written under the influence of natural law school, believed that rights are general, universal, given the nature and take the appearance of so-called “innate rights of man” (Personal liberty, equality, property is one of these rights), uncontrollable by any court18.

And Soviet doctrine address the problem in the same negative way. So for example, some legal theorists as S.N. Bratus, M.V. Samoilov, considered the term “abuse of rights” legal meaningless19. Arguing that idea, they resorted to the famous French jurist M. Planiol. Planiol believed that abuse of rights theory itself is questionable in terms of logic. He said that since “stop right where abuse begins” could not speak of abuse of law, “one and the same act can be both under the law and contrary to law”20.

According to the author N.S. Malein “abuse of rights idea has no justification and explanation clear and convincing in modern literature. Referring to the author’s monograph V.P. Gribanov, published in 197221 about the limits of realization of civil subjective rights, the abuse of rights N.S. Malein understand such cases, the holder of a subjective right act within those opportunities, forming, thus making forms that are outside the legal limits of the law. And then, one of two or subject acting “within the law, belonging, and then, not abuse its right, or it activates the” off limits determined by law “and thus breaking the law he does not abuse the right but his committing an offense, what is liability. In both cases, the author concludes, the idea and abuse rule of law does not exist22.

Under the pressure of social needs or interests “Great Capital” the bourgeois democratic regimes and in the socialist-totalitarian doctrine of absolute rights was gradually replaced with that of their relativity. Passing by hand and then through the case law doctrine of abuse of rights idea brings to light the social function of law legal life and his position and his performance23.

Famous maximum of Planiol“le droit cesse ou l’abus commenece” opposed to another “ou le droit commence l’abuse cesse” closer to the truth. Negative followers theory probably confused the concepts of objective (all the legal rules) as subjective (determined prerogative belonging to a subject), when asserted alleged contradiction between law and abusive exercise of the right. Thus, once removed this confusion, there can be no abuse of the objective, we can talk, but the abuse of subjective right, more correctly expressed, about the abusive exercise of a right24.

Individual rights enshrined generic (established or created) in the current law are possibilities for virtual subjects, while their exercise existing legal possibilities, recovered in the specific subjects capable of action, natural or legal persons, citizens, taxpayers, bodies state associations and organizations. Hence, we conclude that the exercise of a subjective right regardless of its nature, is subject to the necessary existence chip generic abstract and objective law25. Only exceeded internal limits of a subjective right defined by diverting it from its social and economic order constitutes an abuse of law and attract liability of the owner.

Earlier we said that the origin of abuse of rights theory are two theories, the theory of subjective and objective theory of abuse of rights. Followers of the subjective theory (M. Planiol, G. Ripert) based on the concept of subjective rights absolute and their isolation from their social purpose and function. They believed that the only criterion for assessing domestic abuse as is the psychological factor, subjective intent to harm resulted in26. Moreover, Georges Ripert says that “infliction of harm was the only reason to work”, resulting thus that guilt as psychological factor, subjective, leading to the existence of abuse of rights should take only as intended (as unthinkable abuse as committed by negligence, carelessness, recklessness). This limitation of the scope of the infringements intended only abuse was one of the first mistakes of the subjective theory, design them being restrictive, narrow and individualized27. We note another error of this theory: the lack of any objective evidence that external factor, such as removal or diversion from economic or social purpose interest. In addition, abuse in the exercise of a right to be confused with subjective bad faith, fraud, which also is not correct. One of the authors progressive legal literature French Louis Josserand, French lawyer, Dean of the Faculty of Law of Lyon, on the subject investigated rightly said, “would be inconceivable that legal powers can serve as weapons ill-intent, malice and bad faith. Fraud, which vitiates all acts which application to terminate all legal rules should not give free rein under the benevolent too subjective rights, it must be fought without mercy, otherwise însuşii right — being put into service for anti-social purposes, parodied the unworthy by those who use it — would be likely to “die” under the blows of this desecration”28.

Evolving from absolute conception of subjective rights and their isolation from their social purpose and function of the objectives followers theory of abuse of rights, came from absolutization relativity subjective rights and observing that each of them has a social purpose. This theory was developed in bourgeois society, capitalist philosophical doctrines based on solidarity, but also in practical situations with large companies saw their small properties limited development land, without legal means of pressure on them29.

This theory, called social purpose, arising from misuse of power concept of administrative law (exceeding the discretionary powers set out in legislation and legal principles, or, one can speak of diversion of power then when it is used for purposes other than those established by law), is regarded as developed by L. Josserand.

Diversion concept of power is very close to the concept of abuse of rights. Therefore this concept is interpreted as followers subjective theory of abuse of rights, as well as the theory of goals.

One issue discussed in doctrine and jurisprudence, diversion of power related concepts as abuse of law to achieve those if misuse of powers necessary or not to proceed with an element of intentional30. Advocate General Lagrange in the no. 3/1954 are held that “the hallmark of misuse of power is not an objective violation of a rule of law, but illegal subjective intent, as contrary to the law, the Authority issued Decision” (diversion subjective theory of power). Instead ECJ, who shared objective theory of power diversion nr.8/1955 decision stating that there is misuse of power and then, when, by a serious lack of foresight or district, was pursued another purpose than provided by law, no need to highlight the obvious intent to circumvent the law.31

As previously mentioned, the theory is L. Josserand objectives. The basic idea of these theories is “soul’s purpose lies in social law”. For it is improper act “act contrary to the institution, its spirit and purpose”32.

Objective set theory, then, that the first criterion (although there are other criteria, such as why a legitimate social interests, aim right) of the intended social function. Author T. degrees asserts that this conception of L. Josserand jump away from reality and the theory of subjective and objective, bringing a new criterion: the purpose and destination of rights, but at the same time recognizes the merit of L. Josserand be combined with the objective subjective criterion33. Yet objective theory has some shortcomings. One of the shortcomings is ignoring the psychological factor, subjective guilt in committing abuse of law. Another problem is defining social goal against weather concepts as unstable as the criterion of morality and the different political orientations throughout history.

As mentioned previously, there are legal doctrine authors annihilates the very existence of abuse of rights (S.N. Bratus, N.S. Malein and others), considering that it would be only the concept of fault broadly. To exercise a right, in order to commit a loss means a tort negligence characterized by ill-intent and desire to cause injury.

This theory of assimilation abuse with tort law is not sheltered from criticism34. L. Deleanu support the author’s opinion that between tort law and abuse are significant distinctions: a) civil offense has anything to do with the existence or exercise of an individual right, just in case abuse is committed, b) if not civil crime has any relevance legitimate existence, and if the abuse is not a legitimate exercise, c) abuse and other measures as may attract civil penalty in only the (disciplinary, administrative, criminal, which we’ll talk later, d) for abuse of law, no person shall be liable only for damages to the victim, the court may decide to return to the previous situation, solutions are rare in civil matters35. In addition, abuse of rights is subjective right diversion feature of its social and economic order, and could speak a distinct abuse of an illicit act36.

Abuse of rights is not only the existence of contractual liability (abuse of rights can attract other forms of liability) as there is no abuse of the subjective right — right in itself, can’t be so — but, in the exercise or non-exercise to abusive, so the diversion from the purpose for which it was recognized in the exercise of bad faith (in the legal sense) by the owner, which means that it has exceeded limits, legally lost its rights, the individual right.

Exceeding the limits of his right holder subjective means deviation from the purpose of which was recognized by law and always commit mistake. This overflow — limit how limiting an individual right is limited to the subjective right of another — in sight subjective intent to injure the right of another, citing exercising their individual right taken as absolute. One’s right to listen to music in his apartment is the right of individuals to privacy, when the music volume exceeds normal when the machine touches subjective exercise of the right to privacy, tranquility, rest, etc.. the neighbors lodger, of now there is an abuse of law made by the holder as absolutely subjective.

Abuse of rights may result in legal liability under the following conditions:

— The existence of a subjective right determined (using the radio in his room block at maximum sound volume subjectively determined adversely affecting the exercise of a right neighbors subjective abusing his right to privacy);

— Committing an illegal act by the exercise or non-exercise of a subjective right (boundary between two properties costs fall equally owners of the two funds, if one of the owners refuse to exercise this right, then the owner can do fund neighbor forcing him by justice, mid expenditure);

— Material or moral damage;

— The causal link between the wrongful act and injury;

— Culpability of author of illegal act37.

Although the existence of subjective right is one of the conditions of abuse of rights — along with committing an illegal act, moral or patrimonial injury, causation and fault report so — this does not mean that any individual right would be susceptible of abuse by some individual rights by nature, the holder can’t abused: the right to life, the right to dignity, the right to a name, etc..

Hence, we conclude that abuse of rights foundation is subjective right there. Subjective right was taken more data definitions. An operational definition tells us that “active subject to possible liability claims subject undertaking imposed or proposed action or refrain from doing something, as the parties have understood that it should behave when they entered the legal relationship is called as — as subjective38.

So subjective right allows the holder:

a) have a certain attitude towards his right, for example, to use it;

b) provide appropriate attitude of the subject required;

c) may appeal to the state to defend its right path39.

But what is the measure of subjective right, which is its limit?

It is considered a “measure” a “limit” of subjective right, obligation. Obligation is subjective and is right opposite the satisfaction or, where applicable, the performance credentials that involves the rights of another holder of subjective rights. By giving, doing, or not doing something40.

There are some occasions when some individual rights are identified with the obligation to exercise them, as if the public authority’s right to challenge the one who committed the illegal act. There is, therefore, an absolute correlation between the right and obligation. Wherever there is an individual right, we understand that there must be a duty and an obligation wherever we mean that there must be an individual right.

Authors Gh. Mihai and I. Sabau, in an article published in the Annals of West University of Timisoara give us a definition of subjective right to begin exploring “all abstract subjective rights, both recognized by the state and the set of generic objective law in force, which it (the state) gives them protection and guarantee, so that their owners can exercise them freely is subjective right”41. As we see, the subjective right can be viewed as a right of a person’s actual concrete and a set of individual rights. In this definition there is a basic feature of the subjective right that is limiting him. However, at the end of the article, the authors, would like to clarify that the law does not give individual exercise unlimited power, enshrines freedom of all, however, does not confer and illegitimate exercise of its unlimited or by each “Overcoming the law or violating their purpose is abuse The subjective right, sanctioned by the law in force”42. This approach is insufficient to distinguish between internal limits applicable law (real abuse of rights) and external case illegal act43.

From the definitions of subjective right that this law is a legal possibility, while exercise is right, just, legal opportunity materialized.

 Exercise — recovery by the owner of the right that lies — takes place in light of principles that defines the use of abuse of rights:

— The principle of the right to subjectively according to its lawful owner;

From this principle shows that recognition and protection of a subjective right is justified by certain objective, the destination’s social, on the one hand and, on the other hand, the holder is directed to assert his right subjectively if and only if an agreement is in the interest of law. Conversely, disregarding purpose included in applicable law by a rightholder subjective thus satisfy their personal interests constitute abuse of rights.

— The principle of the right by the holder with respect to subjective morality;

Moral norm customize behavior, it evens legal norm. The latter does not prohibit all acts of vicious, nor obliges all virtuous acts, but prohibits acts vicious and virtuous acts require into the scope and general interest44.

From this it appears that the right subjective principle is realized not only with the law and public order, and morality. Subjective right is exercised within its data and objective norms of morality. About this speaks and art. 9 para. (1) CC RM “natural and legal persons involved in legal relations must fulfill the obligations of good faith in accordance with the law, to contract with public order and good morals” This means that “good” manners have the same value significant other performance conditions. “Morals” are a continuation of the law.

Although Moldovan law would allow gay marriage, it would be contrary to morality, and, then, execution subjectively by two gay rights would not respect moral Romanian concrete45.

— The principle of good faith exercise by the holder of the subjective right.

This principle tells us that only “good faith” should underpin exercise all civil rights in the sense that it must be exercised with the right intent, loyalty, diligence and prudence.

Article 55 of the Moldovan Constitution provides that “any person exercising their rights and freedoms in good faith without infringing the rights and freedoms of others.

About good faith we learn from Cicero, that is unity between sincerity in words (veritas) and fidelity to commitments (Constantia), or, fidelity to commitments ca’t exist without their taking and taking is determined by sincerity. This principle, its content indicates the subjective element of abuse of rights, born of the subjective theory about it, that is based on the existence of error in the forms of intention or negligence. Exceeding the limits of his right holder subjective means deviation from the purpose for which it was recognized by law and always commit mistake. This overflow — how limited, which limits an individual right is limited to the subjective right of another — in sight intention to injure another’s subjective right, exercising their individual right invoking taken as absolute46.

Based on the above we can conclude that abuse exists, regardless of the subjective nature of the right:

— Abuse of constitutional law, state or citizen;

— Report of criminal law, from any part of the report criminal justice, abuse of civil law from individuals and businesses, civil disorder as subjective;

— Abuse of administrative law, the public administration;

— Abuse of tax law, the tax authorities;

— Abuse of procedural law, the participants in it;

— Report of family law, the spouses etc.47.

So any abuse of subjective right (constitutional, criminal, civil, administrative, fiscal, etc.). Involves two elements: 1) subjective element consisting in the exercise in bad faith, morals, public order or law; 2) objective element, which is the matter right diversion from economic and social purpose of which was recognized as legal finality.

In a complex vision of abuse of rights concept, we believe that these two elements should be combined, imposing a synthesis between theory subjective and objective theory of abuse of rights. Abnormal and excessive use of intentional or negligent, or easily a subjective right, by overcoming its internal limits, includes implicitly subjective right diversion from its social and economic order.

There is no doubt that you can exploit only a subjective right, which not only understand the rights and freedoms of the person and the exercise of certain rights of public authorities, which are sometimes used unscrupulously to the detriment of citizens. Therefore subjects of abuse of rights can be:

1) constitutional rights and freedoms holders (citizens, political parties, media) Note that if all individual rights are fundamental constitutional rights, not all individual rights are constitutional rights. Whether a constitutional right depends on subjective value judgments own an epoch and a given society. Protects fundamental subjective human rights beyond constitutional requirements. However, the current Constitution includes, in addition to fundamental individual rights and the constitutional own citizens statutes of each state48.

2) institutions, enterprises, organizations (eg monopolistic enterprise abusing the dominant market position);

3) State bodies and its officials.

Generic subjective rights (existing objective law, the law in force) are possibilities for virtual subjects, while their exercise existing legal possibilities, verified by specific subjects capable (citizens, political figures, media, institutions, enterprises organizations, state bodies, civil servants). Topics which the law permits the exercise of subjective rights are required, also by law, to assume and exercise the corresponding obligations as they are provided and limits. If a representative of the media exceeds the limits set out in the exercise of its subjective opinion, he falls in abuse of right to an opinion.

Research the law governing the behavior of subjects in the exercise of subjective rights allows us to classify abuse of rights into three categories:

1) abuse as legitimate;

2) abuse as limited by law;

3) abuse as illegal.

If abuse as legitimate, the right subject is directed primarily against morality, but not against the law or public order. In other words, within the limits provided by law, the owner can do any kind of subjective acts, even if the harm they cause to others. Someone, who is accused enriched in immoral ways can answer “I do not say that I morally rich, but respecting the ways established by law, legal” if coverage is legal acts, morality does not matter.

Another example: neighbor builds a house so high, that totally obscures the neighbor’s garden. A driver who only lifted to permit subjective exercise their right to travel by car on the streets, we practice with, and with fear of accident, moving only 20 cm / hour, making the move to a congestion, it does not violate the other driver subjective right to move with a speed of 50 cm / hour, but temporarily restrict the individual right.

As examples we may refer to the Roman law, namely the Roman law was beautiful and just adajiu qui suo iure utitur reminem laedit– who uses his right injures no one. In other words, as mentioned above, within the limits set by law, the owner can do any kind of subjective acts, even if the harm they cause to others.

Example, significant concerns as legitimate abuse by the exercise of social rights and freedoms, brings French scientist P. Sandevuar49. According to the author, misuse legitimate exercise of the right to strike, the right to work is difficult to achieve by other matters (if that were occupied by strikers some areas where workers want to work) or the establishment of pickets (it is impossible to go to work for those not participating in the strike).

A similar situation may be blocking ports, refusing to unload some perishable goods.

Abuse as legitimate harm the social relations regulated by law, for these reasons, depending on the concrete situation, can be described as immoral or irrational.

Subject immoral acts when, do not coordinate their actions with concrete historical representations of good and evil, just and unjust, the social values governing relations between individuals, family, society, state.

Subject moral act within such time as the emoticon you do or say not deliberately cause suffering to others. Morality is equivalent to goodwill, immorality ill-will. Here, we would like to emphasize, intentional aspect of the suffering caused. We absolutely free, and whenever we act at will, accepting the absurdity of the situation, but at the same time, freedom means responsibility. We are aware of the consequences of their actions and are the product of past actions. As a result, the freedom that we take every choice made involves voluntary and conscious acceptance of certain limitations that come with the election. Action horizon shrinks depending on the chosen limits.

Subject acting irrationally if economic and social order, required by law, can be achieved by using other legal means.

Lack of money to pay judges in Moldova, in late 2012, is the result of irrational bonuses court presidents. At least this is claimed Minister of Justice, who said that only during 2012, employees of judicial institutions have raised premiums of over 2.5 million. lions payroll. While legal rules provide that such payments can be made only from domestic savings50. As we see, this is the event of abuse licit, in fact irrational exercise of individual rights. Thus, speaking of abuse as legitimate, the subject realizes the rights, using the prescriptions of the law. given that subjects comply prohibitive, it does not violate law and can’t be held legally responsible.

The second category of abuse is abuse as limited by law.

In this case, can use in bad faith law is limited to prescriptions legal norms, which do not contain sanctions (due at the abuse of a right can’t be held responsible), but are intended to:

1) preventing abuse of the concrete sphere of social relations. For example, art. 1 para. (3) CC RM “Civil Rights may be limited only by the organic law on the grounds set out in the Constitution of the Republic of Moldova;

2) to exclude the possibility of law subject to abuse his right, Art. 53 para. (5) RM Family Code says that if abuse of parental rights, the child may apply to the guardianship authorities for their legitimate rights;

3) to limit abuse of law deliberately. Article 41 para. (1) Constitution stipulates that citizens may freely associate in parties and other social-political organizations.

Litigation of parties will also consider other circumstances …, the party’s actions endanger the functioning of state institutions or the rights to freedoms of others art. 11 of the European Convention, it prevents the state to exercise its function of protecting those institutions and individuals51 (from the abusive exercise of this right — Ed).

Another example, the German Constitution art. 18 states “who abuse the freedom of assembly, opinion, press, freedom of conscience, association … against bases of a democratic state is deprived of these rights.”

As we see abuse as the second category are recognized by the state as undesirable because they can cause harm social relations protected by the state. Legal consequences of thus depriving rights abuses are concrete, specific persons or refusing to defend his rights.

The third category of abuse as abuse of law are illegal or considered illicit and sanctioned actions, if their liability occurs. Topics such actions usually are law enforcement officers, persons in charge, journalists etc. In other words, people who are competent state special rights or powers to conduct public functions.

Conditions as unlawful abuse and accountability that engages are:

— The existence of a subjective right determined using the radio in his room block at maximum sound volume subjectively determined adversely affecting the exercise of a right of neighbors subjective abusing his right to privacy.

— Committing an illegal act by exercise or non-exercise of rights subjective Granitu costs between two properties, properties fall equally on the two funds, one fund if the owner refuses to exercise Granitu subjective right, then the owner can do next fund delegating it through mid justice expenditure;

— Economic or moral damage;

— The causal link between the wrongful act and injury;

— Culpability illegal act52.

Although the existence of subjective right is one of the conditions of abuse of rights — with committing a willful material or moral injury, a causal relationship and guilt — this does not mean that any individual right would be followed by abuse: some subjective rights by their nature, can’t abuse holder: the right to life, the right to dignity, the right to name etc.. It is also noticeable as many types of abuse of illicit, each with its specificity: the abuse of constitutional, civil, criminal, administrative, commercial, tax etc..

Liability thus action can be established both in law (eg, art. 327 hp RM “abuse of power or abuse of office”) and the law subordinate legislation (regulations, instructions, etc.).

However, Article normative act, not always, can be summed up one way or another abuse of law. Often the abuse of rights is a way to commit other crimes or misdemeanors. So, for example, in the opinion of the author FM Resetnikov53, concrete forms of abuse of rights can’t be qualified as crimes committed by persons directly in charge, but the attacks on the rights of citizens (art. 178 hp RM “violation of the right correspondents secret “art. 180 hp RM” deliberate violation of the law on access to information ”, Art. 183 hp RM” violation of labor protection “crimes against justice (art. 308 CP RM” illegal arrest; art. 307 hp RM “Pronouncing a judgment, decision, conclusion or judgment against the law) or against property (art. 194 HP RM” Causing damage to property by deception or abuse of trust “).

It also refers to other subjects. For example, journalist and media abuse. Journalist card not trigger any immunity or any status. But sometimes, we are witnessing the manipulation, lies and non-words, we see daily on most screens, which are dangerous for the press and hygiene Moldovan society.

Thus, abuse of illicit as may be specified in Article normative act, which is punishable, and by committing other violations of law (for example, by abusing the freedom of speech, the speaker calls for mass events and disobedience).

Assimilation abuse of rights with responsibility is the most popular and acceptable way of abuse of rights. Exercise a right to commit damage, is a violation, a misdemeanor, characterized by ill-intent and desire to cause injury. Even in ordinary language54 (the term “abuse” means breaking the law, as without the use of a thing, and in that of “abuse of rights”55, that crime which consists in the exercise of a right to ignoring its social and economic purpose.

“Abuse of law” would be subjective rights, equivalent to that which is “fraud in law” for the right purpose: a correction, which highlights, among other things, influence moral rule on legal rules.

It is noteworthy, however, that the doctrine and jurisprudence has developed, often a much broader concept “abuse of rights”, considering that this area falls not only intent to harm, but any unreasonable exercise a right that any diversion of objective finality, one that has a normal use for which the right was recognized. Introducing “finality” as a standard of measure for the exercise of rights is the core of the famous doctrines, including that of Louis Josserand. Such doctrine requires the discovery of “other coherent” theory of abuse of rights, in this perspective, becoming really impossible to accept that the abuse of the right to remain outside the law itself, being able to ask the question whether a right unreasonably can be considered as56.

So we need to remember another vision of individual rights, recognition for the government and litigants of legal powers is an expression of the fundamental concepts on law exercised at a certain time and a certain place. According to these concepts may undoubtedly authorize the formulation of rights and freedoms, but their beneficiary must not lose sight that you can’t use them, but fairly, justly and certainly justified in terms rational. Thus is created, by the concept of “abuse” as an effective tool not only legislative pedagogy, but also to prevent and punish any deviation from this principle.

Of course, that judges are responsible delicate but crucial to determine whether, in this or that case, there is or there is abuse of rights, but it no longer appears only as a cautionary note, never-ending practice and to both less as an end of it, but rather it is an essential task to, that of ensuring that the correct (honest) law, enforced with determination and rigor any attempt to bypass or diversion of law from purposes for which it was created57.

In conclusion we would like to formulate a definition that includes all modes of abuse of rights, accepted contemporary legal doctrine58 that Cantonese is not a single theory or criterion. So we can define as abuse as performance, subjective exercise of a right in violation of its principles.

The above principles are arising, so that whenever a right is exercised: the disregard of law and morality, in bad faith, to overcome its internal limits, or disregard of economic or social purpose for which it was recognized equivalent abusive exercise of subjective right.

In our country, the theory of abuse of rights is regarded with suspicion because the negative spectrum of the Communist regime and socialist mentality still hanging over them. After being used as a means of imposing ideologies and totalitarian regimes, it is difficult to get an instrument for the protection of the oppressed. We must remember that not only this institution was diverted from its purpose, but the whole legal system was messed up in the past criminalization of analogy in criminal law against the defendant, the fictional status of civil servants and judges up today case “Royal Forest” or illegal abuse of tax bodies, “the case Vicol”.

Abuse of rights theory has merit limited by the need for specific regulations, allowing judges greater freedom because, as stated and Neitzche “then, when an empire is about to perish, has many laws”59 — summum ius, summa injuria– (with the more laws, the more wrong call).