Волков А.В. Роль статьи 10 Гражданского кодекса РФ в системе гражданско-правовых норм

Аннотация: It is mentioned in the article that the notion “misuse of right” in the modern system of the civil law is very vague and controversial. In the civil law the majority of rules have optional structure of legal material, the main point of which is in provision the person with an opportunity to determine his/her behavior himself/herself willfully, that open the space for actions of the person at his/her discretion. Guarantees of exercising civil rights are an integral part and main point of any legal system, without which legal rights would be declarations, failed to be exercised and useless, due to this. So, the rule of Article 10 of the Russian Federation Civil Code refers to the rule-principle, which guarantees proper exercising of civil rights in accordance with their real purpose. Article 10 of the Russian Federation Civil Code defines limits of civil rights exercise, prohibiting absolutely distinct, namely misuse behavior. It provides a general restraint of discretion of civil turnover subjects, while they are exercising their civil rights. The sense of the text of Article 10 of the Russian Federation Civil Code is wider than the sense of this article’s title, and it is inadmissible for the law. Taking into consideration the mentioned information, in the notional order, it would be more correct to give the following title to Article 10 of the Russian Federation Civil Code: “Inadmissibility of misuse behavior” or “Criteria of using civil rights,” or “Subjective limits of exercising the rights for participants of civil matters,” or “Prohibition for negligent acts.” Taking into consideration the above-mentioned, misuse of the civil law can be defined as a special type of civil right violation, related to authorized person’s going deliberately beyond inner limits (sense, purpose) of the civil law (which are determined by the requirement of reasonableness and good faith, inclusive) in order to reach his/her illegal hidden object with using juridical formalism of the civil law, such as blanks, slips of the tongue, drawbacks, narrowness, contradictions of legal rules and contractual provisions. In juridical and technical view, misuse behavior is expressed when the person violates the liability to faithfully exercise his/her right; this liability is included in his/ her civil right and comes from ideas and principles of the civil law (first of all, the principle of equity and the following principle to exercise the right in good faith), when he/she follows formally of uses special civil legal rules.

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Abstract: It is mentioned in the article that the notion “misuse of right” in the modern system of the civil law is very vague and controversial. In the civil law the majority of rules have optional structure of legal material, the main point of which is in provision the person with an opportunity to determine his/her behavior himself/herself willfully, that open the space for actions of the person at his/her discretion. Guarantees of exercising civil rights are an integral part and main point of any legal system, without which legal rights would be declarations, failed to be exercised and useless, due to this. So, the rule of Article 10 of the Russian Federation Civil Code refers to the rule-principle, which guarantees proper exercising of civil rights in accordance with their real purpose. Article 10 of the Russian Federation Civil Code defines limits of civil rights exercise, prohibiting absolutely distinct, namely misuse behavior. It provides a general restraint of discretion of civil turnover subjects, while they are exercising their civil rights. The sense of the text of Article 10 of the Russian Federation Civil Code is wider than the sense of this article’s title, and it is inadmissible for the law. Taking into consideration the mentioned information, in the notional order, it would be more correct to give the following title to Article 10 of the Russian Federation Civil Code: “Inadmissibility of misuse behavior” or “Criteria of using civil rights,” or “Subjective limits of exercising the rights for participants of civil matters,” or “Prohibition for negligent acts.” Taking into consideration the above-mentioned, misuse of the civil law can be defined as a special type of civil right violation, related to authorized person’s going deliberately beyond inner limits (sense, purpose) of the civil law (which are determined by the requirement of reasonableness and good faith, inclusive) in order to reach his/her illegal hidden object with using juridical formalism of the civil law, such as blanks, slips of the tongue, drawbacks, narrowness, contradictions of legal rules and contractual provisions. In juridical and technical view, misuse behavior is expressed when the person violates the liability to faithfully exercise his/her right; this liability is included in his/ her civil right and comes from ideas and principles of the civil law (first of all, the principle of equity and the following principle to exercise the right in good faith), when he/she follows formally of uses special civil legal rules.

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