Проблем двоструког парадокса важећег одштетног права
Double Paradox of Current Tort Law

Author(s): Srđan Radulović
Subject(s): Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Damage;Unlawfulness;Conditions of liability for caused damage;Exclusion of unlawfulness;Abuse of rights;Constituents of abuse of rights;
Summary/Abstract: Relations between legal subjects – relations created under Tort Law are not exception in this sense – are created, modified and ended when so-called legal facts come to light in everyday life. Due to their constitutive effect, theory of law is especially interested in group of facts called “conditions of liability for caused damage”. A careful analysis of unlawfulness which is, author has no doubts about that, one of previously mentioned conditions of liability for caused damage, reveals the existence of two very different, but closely related, legal paradoxes. On the one hand, in context of Law of Tort, unlawfulness as a term is at the same time wider in one sense and narrower in other sense then the concept of unlawfulness in the general sense (as negation of Law). On the other hand, the so-called exercise of individual right, in context of the prohibition of abuse of subjective rights, in a number of situations may at the same time be “the reason” for exclusion of unlawfulness (and consequently exclusion of liability for caused damage), but also one of conditions of civil liability. Intrigued by these paradoxes (author points out that there is the third or even fourth paradox), both separately and in their interconnectedness, in this paper author presents results of independent theoretical and empirical research which aims to raise and stimulate discussion regarding the issues that have been set aside during process of codification of Civil Law in Re- public of Serbia.

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