Публичные и диспозитивные сегменты злоупотребления субъективным правом: межотраслевой взгляд

Pravoprimenenie

Даулет Маулитович Нурбаев¹  Владимир Александрович Азаров¹ 

[1] Омский государственный университет им. Ф.М. Достоевского

关键词: Злоупотребление правом;    уголовный процесс;    гражданский процесс;    публичность;    диспозитивность;    императивный метод;   

DOI  :  10.24147/2542-1514.2017.1(2).155-163

学科分类：社会科学、人文和艺术（综合）

来源: Dostoevsky Omsk State University

【 摘 要 】

УДК 343.12The subject. The article is devoted to the analysis of a phenomenon "abuse of the right" from a position of the public and dispositive beginnings of his manifestation. The purpose of this article is to consider public and dispositive principles of abuse of the right in the scope of legal theory to qualify this phenomenon in criminal proceedings properly. Methodology. The author use methods of theoretical analysis and interdisciplinary approach as well as legal methods, including formal legal method and comparative law. Results, scope of it’s application. The authors note that the use of the advantages offered by abuse of the right is initially inherent only for the defending party in criminal proceedings. Abuse of the right in the procedural segment of disposition appears in the implementation of the right to protection in the criminal procedure as well as in the implementation of almost any rights in the civil proceedings. The main resource of publicity is realized exclusively by the courts in the civil procedure as well as by all government entities and officials in the criminal process. That’s why abuse of the right is interdicted by the activity of the court in civil procedure. The imperative method of legal regulation of public relations, that is the basis of publicity, is in fact one of the ways of prevention and suppression of abuse of rights. The disposition method, that is the basis of competition in legal relations, is a catalyst for the creation of situations of possible abuse of rights.Abuse of rights is manifested first and foremost in terms of the disposition, moreover – the higher the level of disposition in the particular branch of law provokes the greater likelihood of abuse of the right. Publicity limits disposition and, therefore, the possibility of abuse of the right. Conclusions. Legal institute of abuse of right requires early normative entrenchment in the criminal process. It should contain specific grounds for restricting specific rights, which is abused by party of procedure. The authors allow only one kind of liability for abuse of rights: a temporary restriction of the subjective rights of participants in criminal procedure on a very short term. It can be used only for systematic abuse of this right. Only court should have an authority for such restriction, taking into account prior notification of the supervising Procurator.

【 授权许可】

CC BY