GENESIS OF VIEWS ON THE PHENOMENON OF ABUSE OF LAW

Abstract

This article comprehensively analyzes the history, theoretical foundations, and ethical content of the phenomenon of “abuse of rights.” First of all, the concept of bona fides (pure conscience) formed in ancient Roman law and its role in ensuring justice in contractual and property relations is shown. The author relies on the teachings of Roman jurists and emphasizes that the principle of “conscience” served as the main criterion for evaluating the actions of subjects of law. It is analyzed that the concepts of “abus de droit” and “shikana,” which appeared in France in the 18th-19th centuries, formed mechanisms for preventing the use of law for harmful purposes, which also had a strong influence on the legislation of Germany and Switzerland. Also, the concept of “open abuse” is widely covered in the Swiss Civil Code and the practice of regulating neighborly relations through “shikana” in Germany. The article also compares the conceptual views of Russian, American, French, German, Japanese, Chinese, and Uzbek scientists. According to the author’s conclusions, not only legal mechanisms, but also moral criteria – the principles of conscience, justice, and honesty – should occupy a central place in the effective fight against abuse of rights.