Current legislation does not allow the exercise of subjective rights in violation of the limits of good faith (Article 10 of the Civil Code). This form of abuse of law, like chicane , is considered historically the very first. It was with its emergence that the institution of the inadmissibility of the improper exercise of rights began to take shape.
In modern theory and practice, there is no single approach to the interpretation of the concept of " chicane." In civil law , various assumptions are made regarding the nature of its occurrence and legal consequences. The lack of a unified concept, of course, does not contribute to the stability of the legal system.
German Civil Law
The domestic legal system borrowed the concept of "chicane" from German science of the 19th century. The term itself has been known since ancient Roman civil law. Shikana in the doctrine of the Roman Empire meant the implementation of subjective law solely with the intention of harming another person.
The specificity of abuse, therefore, is that it leads to the satisfaction of feelings of revenge, gloating, anger, hatred. As a typical example, one can cite the case of building a wall at the border of the plots so that the light does not get into the windows or onto the neighbor's plants.
Currently, in many countries , the civil law of the chicane is fixed at the official level.
Malevolence
This phenomenon is close to chicane. In the civil law of England and America, this concept means action / inaction, as a result of which the subject is unlawfully interfered with, inconvenience, worries associated with the use of real estate by causing material damage or other interference with the use of land, real estate, preferences and other similar rights or impact on amenities, comfort, human health.
Examples of cases of maliciousness are excessive noise, obstruction of the use of easements or lands, the direction of water to a neighboring site, etc.
Key features
In the implementation of subjective civil rights, researchers indicate the following characteristic features of violations of the limits of good faith:
- Shikana manifests itself in the form of action. Inaction cannot be seen as a form of abuse.
- The presence of direct intent aimed at causing harm to another entity. Most lawyers agree that a chicane is impossible with indirect intent or negligence.
- The intention to harm another person is a key sign of abuse in the exercise of subjective civil rights .
Controversial issues
According to some researchers, another distinguishing feature of chicanes is the onset of consequences in the form of damage from the actions of the subject. However, some lawyers oppose this approach. The authors believe that the actions of the offender, although aimed at causing harm, but may not cause the expected damage.
Here you should turn to judicial practice. So, when considering a civil case related to the opening by the plaintiff of an account in a troubled banking organization for the deduction of tax payments. At the same time, other cash transactions were made from another account in a solvent credit institution. Courts interpreted such acts as abuse of law. The institution proceeded from the fact that they contributed to the non-receipt of mandatory payments. Formally, the subject fulfilled tax obligations, but the budget was not actually replenished with amounts due to the bad faith of the problem bank.
Differentiation problems
The above positions of researchers regarding the definition of signs of chicanes ignore the issue of delimiting it from other forms of abuse. It is advisable to carry out differentiation on the basis of the criteria of uniqueness and exclusiveness of intentions to inflict damage on another subject and the presence in the behavior of the offender of another, legitimate goal of a decisive nature.
This approach becomes especially relevant in the context of consolidating the concept of chicanes at the legislative level. It, in turn, is based on contrasting the form in question with other methods of abuse and reflects the tendency of the transition from a “pure chicane” to the principle of “chicane when the legitimate interest is decisive” characteristic of the modern world legal system.
The importance of legislative consolidation
Formulated in German law in the XIX century. the provision on “pure chicane” was oriented towards the most accurate attitude to the process of exercising civil rights. Certainly, the accuracy and adequacy of the position of the legislator existing at that time, the realities of legal life deserves respect.
Taking into account the special role of the institution of the initiative and independent implementation of legal opportunities within the framework of free circulation, realistically assessing the consequences of the impact on the legal relations of the state mechanism, German lawyers modeled a compromise principle that is safe for individual entities and useful for society as a whole.
These conclusions are confirmed by the comments of the developers of the norm. They, in particular, indicate that the prohibition is not imposed on any exercise of rights, but only on one that harms other persons. It is even impossible to do without harm in the implementation of certain legal opportunities. To state chicanes it is not enough that the exercise of rights should be aimed at causing harm. It is necessary that from the circumstances of the case it follows that the exercise of a legal opportunity for the person who committed the act does not and cannot have any other purpose than to cause damage.
Prerequisites for the emergence of the Institute
As public relations changed significantly, in the middle of the twentieth century, German lawyers tried to expand the content of the concept of "chicane." It was supposed to carry out this by shifting the emphasis of the subject of law to determine the uniqueness and exclusiveness of intentions to prove intent and evaluate incentives to commit illegal actions.
As a result, in each individual case of improper implementation of subjective law, the court had to find out the essence of other goals, except for damage to a specific subject. The relevant opinion was expressed in a court decision. Samples of decrees indicate that initially the accompanying motives were investigated solely from the point of view of compliance with their legislation and ideas about morality.
Development of norms
After a while, the concept of "chican" began to encompass cases of exercise of rights in which other legitimate selfish goals were obvious. To qualify them in an appropriate quality, it was necessary to reasonably and reasonably determine which particular goal was the main subject for the subject, and indicate the conclusion in the court decision. The samples of decrees indicated, for example, that the determining goal was to do harm or the key was to profit. In the first case, the person’s behavior was recognized as chicane and was deprived of any protection.
Broad interpretation of the concept
The need to consider chicane in a broader sense is due to the fact that in most cases the abuse is aimed not so much at causing harm, but at satisfying selfish or other interests. All such situations could not previously be qualified as a chicane. Accordingly, they remained outside the legal field.
It is worth saying that some typical manifestations of abuse of law in the narrow sense did not receive the necessary legal regulation. This was due to the difficulty of proving the "exclusivity" of the goal.
Adherents of a broad interpretation of the concept seek to justify the approaches used in judicial practice and suggesting that only actions covered by the concept of chicanes are recognized as abuse. That is, we are talking about behavior aimed at causing harm to another person.
Here, attention should be paid to the tendencies of misinterpretation existing in domestic law enforcement practice by some judges and lawyers of the content of paragraph 5 of the resolution of the Plenum of the Supreme Arbitration Court and the Supreme Arbitration Court. In it, in particular, it is said that the refusal of judicial protection of the right is possible if the materials of the case indicate that the subject has committed actions that could be qualified as an abuse of the right, with the aim of causing harm to other persons.
Modified forms
It should be noted that with an unreasonably broad interpretation of the concept, certain modifications of the approach arise. For example, in the opinion of T. S. Yatsenko, article 10 of the Civil Code of the Russian Federation provides for a ban on abuse of the right in any form. That is, we are talking not only about the Shikan as a way of causing harm in the course of realization of legal opportunities, but also about other actions committed without the intention to cause damage, but objectively causing it. If we delimit the concept of chicanes solely by actions aimed at infringing on the interests of others, the right to use, for example, will remain outside the scope of the ban enshrined in Article 10 of the Civil Code of the Russian Federation .
When considering Art. 10 of the Civil Code of the Russian Federation with the comments of a number of authors, it can be noted that experts point out that the provisions of the norm do not give grounds for formulating the conclusion that the interpretation of chicanes as an action aimed at realizing the exclusive intention to harm, means the need to regard other forms of abuse as unintentional (careless) damage.
In the opinion of O. A. Porotikova, on the contrary, it should be noted that a literal interpretation of the content of paragraph 1 of clause 10 of the Civil Code allows us to attribute to “other abuses” intentional acts with different, not single intentions, and negligence in the exercise of rights.
Restriction of competition
According to some authors, the scope of the concept of "chicane" is limited to non-entrepreneurial relations between subjects. For those doing business to systematically make a profit, all other intentions only accompany its achievement. In this regard, even radical abuse of the right, based on personal hostility towards partners or competitors, cannot be carried out to cause harm. Consequently, the use of rights with the aim of abuse of a dominant position cannot be regarded as a special case of Shikans. Accordingly, provisions 10 of the Civil Code norm cannot be used as a means of restricting competition.
This approach to the non-proliferation of abuse of the right to entrepreneurial relations on the grounds of the difference in the regime established for the entrepreneur and the non-entrepreneur should be considered formal. Its use can lead to unfair situations.
In order to avoid such cases, it is advisable to qualify the actions not as chicanes, but as another form of abuse by determining the proportionality of legal and illegal interests in the adverse consequences arising from other persons.