Abuse of law

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Abuse of the law is the improper use of a legal position that is actually due to be judged according to the circumstances of the individual case. Even those who have a formally enforceable right may not abuse it if the only purpose is to cause harm to someone else. If he tries anyway, the disadvantaged person is entitled to the objection of inadmissible exercise of the law .

The general prohibition of the abuse of law is derived from the rule of law .

Germany

In Germany , the term abuse of rights follows in particular from the simple legal norms of § 226 and § 242 BGB .

In § 226 BGB ( ban on chicane ) it says:

"The exercise of a right is inadmissible if, under the circumstances, it can only have the purpose of causing damage to another."

In addition, the exercise of a right can also be prohibited by the provision of § 242 BGB. Its wording says:

"The debtor is required to effect the performance as good faith with regard to the prevailing practice so require."

Conversely, the obligee is not entitled to demand performance that is incompatible with the principle of good faith . This is particularly the case if the obligee himself has illegally acquired the right.

Conceptually, the principle of good faith under the law of obligations can be extended to the inappropriate use of legal positions in procedural and public law. Closely related to the abuse of law are constellations of linking private law with public law , according to which legal relationships that are not dependent are placed in an interest-related factual context that undermines the specificity of the respective legal relationships. In legal terms, the so-called "coupling ban" is used here. The issuing of a building permit by the building supervisory authority must not be tied to the city's interest in acquiring parts of the property from the commercial property owner in order to realize its own commercial projects. Any conflicting issues relevant to fundamental rights can therefore no longer be handled by way of collision settlement. More recent jurisprudence is moving to regard these cases as the expression of the idea of ​​the third-party effect of fundamental rights .

In principle, the exercise of an existing right does not have to be justified. This also applies if the exercise of the right creates a disadvantage for another, which is often the case in private law. The assertion of a legitimate purchase price claim burdens the buyer.

In civil proceedings , however, an assertion in the dark according to Section 138 (1) ZPO is inadmissible.

Switzerland

The Swiss Civil Code ( ZGB ) regulates the abuse of rights in Article 2, Paragraph 2: "The apparent abuse of a right does not find legal protection". This is about the case that someone has a right strictly according to the law (or contract ). But it is felt to be unjust when the person concerned exercises his right. He is accused of abusing his rights - this is prohibited under ZGB 2. The judge will not protect this right.

United States

Many US states have special protective laws against the improper exercise of the right of action through so-called SLAPP .

European Union

The problem of abuse of law has also been discussed in Union law since the 1990s. In connection with so-called u-turn constructions, in which a person artificially creates a cross-border situation in order to enjoy the fundamental freedoms, the ECJ took the view early on that such behavior was incompatible with EU law. The ECJ had to rule on the compatibility of such constructions primarily in connection with export subsidies .

The decision in the van Binsbergen case , to which the ECJ repeatedly referred in similar cases in the subsequent period , is generally regarded as the first judgment of relevance . With his decision in the matter of Emsland starch , he for the first time abstractly formulated the conditions under which a claim to Union law should be inadmissible due to abuse. Specifically, in Rn. 52 f. out:

"The determination of abuse presupposes, on the one hand, that an overall assessment of the objective circumstances shows that the aim of the regulation has not been achieved despite formal compliance with the Community law conditions. On the other hand, it presupposes a subjective element, namely the intention to obtain a Community law It is for the national court to determine the existence of these two elements, for which evidence must be provided under national law, provided that this does not affect the effectiveness of Community law. "

At the latest with the decision in the Kofoed case , the ECJ approved this prohibition of abuse as a general principle of Union law. He transferred his case law into various areas of Union law, including VAT law. For European civil procedure law, an explicit transfer by the ECJ is still pending, even if more recent decisions allow the conclusion that the application of the prohibition of abuse, which is already possible for dogmatic reasons, would be approved by it.

As far as the practical application of the prohibition of abuse is concerned, the ECJ emphasizes the criteria required for the first time with Emsland- strenght depending on the situation of the case, which is also related to the fact that it assigns the so-called circumvention of the law to the prohibition of abuse , which is a differentiated consideration of the subjective element calls.

Examples

It is an abuse of the law

Known from legal history - and still often used today as an example of abuse of law - is the so-called Neidbau : a building that is (at least partially) built to harass a neighbor.

See also

Individual evidence

  1. ^ Matthias Klöpfer: Abuse in European Civil Procedure Law (Publications on Procedural Law) , Mohr Siebeck, Tübingen 2016, ISBN 978-3161542558 . P. 189 ff.
  2. Martin Morlok , Lothar Michael : Staatsorganisationsrecht , Nomos, Baden-Baden, 4th edition 2019, ISBN 978-3-8487-5372-7 . P. 180 f.
  3. Kähler, in: beck-online.Großkommentar, as of August 1, 2016, § 242 Rn. 937.
  4. See Vogenauer: Prohibition of Abuse of Law: An Emerging General Principle of EU Law . In: Rita de la Feria, Stefan Vogenauer (Ed.): Prohibition of Abuse of Law - A New General Principle of EU Law? 1st edition. Oxford 2011, ISBN 978-3-16-154255-8 , pp. 521 ff .
  5. Klöpfer: Abuse in European Civil Procedure Law . Mohr Siebeck, Tübingen 2016, ISBN 978-3-16-154255-8 , p. 100 ff .
  6. ECJ, judgment of December 3, 1974, van Binsbergen, 33/74, EU: C: 1974: 131
  7. ECJ, judgment of December 14, 2000, Emsland-Starke, C-110/99, EU: C: 2000: 695, Rn. 43 ff.
  8. ECJ, judgment of 5.6.2007, Kofoed, C-321/05, EU: C: 2007: 408, Rn. 43
  9. See ECJ, judgment of 10.11.2011, Foggia, C-126/10, EU: C: 2011: 718, Rn. 50.
  10. See Klöpfer: The future of the torpedo lawsuit in European civil procedure law . In: Erik Jayme, Heinz-Peter Mansel, Thomas Pfeiffer, Michael Stürner (eds.): Yearbook for Italian Law . Commercial law - procedural law - inheritance law - divorce law, No. 28 . Heidelberg 2016, ISBN 978-3-8114-4255-9 , pp. 165 ff .
  11. Klöpfer: Abuse in European Civil Procedure Law . Tübingen 2016, ISBN 978-3-16-154255-8 , pp. 128 ff., 152 f .