Žostautaitė, Skaistė - Magistro baigiamojo darbo autorius
Pakalniškis, Vytautas - Magistro baigiamojo darbo vadovas
Sagatys, Gediminas - Magistro baigiamojo darbo recenzentas
Tikniūtė, Agnė - Magistro baigiamojo darbo vertinimo komisijos pirmininkas
Kudinavičiūtė Michailovienė, Inga - Magistro baigiamojo darbo vertinimo komisijos narys
Birštonas, Ramūnas - Magistro baigiamojo darbo vertinimo komisijos narys
Mykolo Romerio universitetas - Mokslinį laipsnį teikianti institucija
Each individual, who is dealing with civil law circulation, could implement civil subjective rights by using his own discretion. However, if the realization of these rights was held in a manner to violate or to restrict rights and legitimate interests of other persons, that exercise of right beyond the limits of the implementation will be recognized as abuse of right. Abuse of right principle doctrine is clearly recognised in all modern legal systems, but the content and application of the doctrine of abuse of rights vary significantly among national legal systems, making it difficult to identify common criteria except in the most general of terms. It should be noted that the legislature established prohibition of abuse of right in articles 1.2 and 1.137 part 3rd of Civil Code as independent legal construction. The concept abuse of right was formed following objective theory of doctrine. Behavior is considered as an abuse of right, according to conceptual criteria such as absence of proper interest, flagrant disproportion between damage and profit, harm, disregard for the purpose for which the right exist. Apparently, the legislature has not specified the content of the prohibition of abuse of right. It is entrusted to solve through the dynamics of application of prohibition abuse of right in case – law by Lithuanian judicial courts .
During the analysis, it was revealed the main legal regulation as well as developing case-law problems and shortcomings. Disclosed theoretical problems are analyzed in case-law: it was revealed the main relationship between prohibition of abuse of right and general principles as well as displayed, analyzed and evaluated prohibition of abuse of right application particularity related with case-law in areas of activities of legal person, ownership, contractual legal relations and protection of personal non – property rights. Moreover, it was presented characteristics and problematical aspects of legal sanctions of infraction of prohibition of abuse of right.
This work contains the following conclusions. Analyses of different cases confirmed that there is no uniform, inconsistent, incoherent case –law in area of the abuse of right. Conceptually, the prohibition abuse of rights is variously and different articulated and applied in case – law.The case – law is fragmentary and contradictory: it may be arranged a spectrum that runs from formal mention of artcles of prohibition of abuse of right to analyses of abuse of right as independent legal construction.
Mostly, prohibition of abuse of right is analized in dealing with side issues and helps to constitute the infrigement of other articles of Civil Code. However, this manner of application of abuse of right is usually inappropriate. It should be noted that the only possibility to avoid uncertain content of abuse of right is to applied this prohibition as independent legal constructure. Only in those cases circumstances are analyzed and evaluated according to criteria in article 1.137 part 3rd of Civil Code as well as issues related with negative sanctions.
Thus, the existing shortcomings of case – law imply a priority task of the courts to form appropriate application of prohibition of abuse of right in the case – law. In addition there are not fully disclosed all possibilities of application of prohibition of abuse in case – law. According to case – law analysis, it is proposed the courts to consider implementation of theoretical models of prohibition of abuse of right application, suggested in law doctrine, in order to solve the problems concerning the effective protection of personal non – property rights and voidability of transactions.
Raktažodžiai: abuse of right, case-law, application, independent legal construction