Правоприменение (Mar 2022)
Abuse of law as a form of opposition to the implementation of the law in the context of modern scientific discourse and law enforcement practice
Abstract
The subject of the article is the abuse of law as a phenomenon of legal reality, its definition, the patterns of its arising and developing in legal relations, the consequences of abuse of law established in the prescribed manner.The purpose of the research is to confirm or refute the theoretical hypothesis about the nature, as well as of the role and the functional load of abuse of law, to obtain the conformation of the theoretical judgment of praxeological nature and the conclusions.Methodology. In achieving the purpose and the corresponding research tasks the dialectical method's instruments were used, which made it possible to establish the relationships between the formally expressed normative uncertainties and the difficulties of their practical implementation, to find structural and functional conclusions in legal behavior and its consequences. The opportunities provided by comparative legal, formal legal, historical and legal methods of the cognition were widely used.The main results and the scope. The analysis of the given problems showed that despite of the prevalence in relations regulated by various law branches and the frequent reference to it among scholars, it was not possible to develop the unanimous approach to understanding of the abuse of law. This is partly due to the two main factors: (a) the uncertainty and evaluativeness of this phenomenon; (b) the desire to develop a unique interpretation of the right's abuse by an individual researcher.Thus, the unique and extraordinary options of understanding of abuse of law have been developed. Often they do not correspond to the practice of its application and not fit the legal science system's categories and its knowledge. The current situation leads to the confusion in the research and ideas blurring of established legal constructions. In addition, theoretical knowledge that has no outlet to practice loses their importance and does not contribute the simplification of practical activities to implementing the law. The main conclusions of the research are expressed in the provisions that the abuse of law plays the role of legal fact, associated with the onset of harmful consequences or the threat of their occurrence. It demonstrates the desire of the abuser to obtain benefits of different nature by leveling legal requirements, in their complex misconduct. The abuse of law either acts as a way of committing an offense and constitutes the objective side of the act, or has an independent meaning, causes the application of legal responsibility, if it acts as a method of committing an offense, and measures of legal protection, if it has an independent meaning, the legal structure of law abuse does not include a duty and looks like this: subjective law – the exercise of subjective right – the limits of the exercise of subjective right – illegal act – the onset of harmful consequences or the threat of their occurrence – measures of responsibility or protection measures.
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