Civil law aspect of abuse of right: doctrinal approaches, problems of defining the signs and regulatory detail

This article is devoted to the study and disclosure of the problems of abuse of subjective civil law in the legal field of Ukraine, in particular, in terms of application of part three of Article 13 of the Civil Code of Ukraine. Despite the importance of this provision as a mechanism for deterring unfair behaviour of participants to civil legal relations, its current wording raises a number of theoretical and practical difficulties. In particular, it is the excessive abstractness of the provision on ‘abuse of law in other forms’ which makes it difficult to predict legal consequences, creates room for wide judicial discretion and creates threats of legal uncertainty, which is incompatible with the rule of law. Special attention is paid to the analysis of the relevant construction, taking into account the current case law and doctrinal approaches of leading Ukrainian scholars. The emphasis is placed on the need to revise the current wording of part three of Article 13 of the Civil Code of Ukraine with a view to increasing the level of legal certainty, fairness and predictability of law application. The author expresses the view that it is expedient to detail the elements of abuse of law, in particular, by introducing a mandatory element of negative consequences or damage as a key element of the offence. The approaches of the Constitutional Court of Ukraine and the European Court of Human Rights to the interpretation of the limits of the exercise of subjective rights are also considered. The ECHR case law confirms the idea of a functional limitation of a right, which is the prohibition of its use contrary to the public purpose or with the aim of causing harm. This approach is fully consistent with the idea of improving national legislation with due regard for European legal standards. Based on the study, the author substantiates a specific proposal to amend Part 3 of Article 13 of the Civil Code of Ukraine, which would consist of combining the general wording with a clear indication of the existence of negative consequences as a mandatory sign of abuse. Such a wording will help to achieve a balance between flexibility of law enforcement and compliance with the principle of legal certainty, which, in turn, will ensure the stability of the legal order in the private law sphere.