Злоупотребата с право. Исторически и сравнителен анализ
THE ABUSE OF RIGHTS. HISTORICAL AND COMPARATIVE ANALYSIS

Author(s): Zhana Koleva
Subject(s): Law, Constitution, Jurisprudence, History of Law, Civil Law, Comparative Law
Published by: Издателство „Сиби“
Keywords: Abuse of rights; Civil Law; Commercial Law; Comparative Law; Roman Law; Corpus Juris Civilis; Digests
Summary/Abstract: The subject matter of this research is the concept and the regulation of the abuse of rights established in the Law of Obligations and Contracts (Art. 8, Para 2 LOC) and in the Commercial Law (Art. 289 CL). They are comparatively analyzed in respect of the leading national legal systems in Germany, Austria, Switzerland, France and Italy. The study historically traces whether the general rule of abuse of rights is found out in Ancient Roman Law. According to the widespread doctrine view the concept of abuse of rights originates from the international public law3, which condemns the abuse of discretionary power of public authority. Nowadays the abuse of rights is also found in Private Law with its specific features. The doctrine debates whether the origin of the concept dates back to Ancient Roman Law. Some texts of Corpus Juris Civilis describe and prohibit certain human activities as unlawful exercising of a given right as the D. 39.3.1.12 and D. 39.3.2.9. are most often cited. By establishing these rules the ancient Romanists were guided by the rule: no malice – no actio. Though still in rudimental stage, these rules demonstrate the rise of an idea, which became a clear concept hundreds of years later.

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