Abuse of process

Abuse of rights is defined as the improper use of a legal position and limits the possibility of exercising an existing right. This means that the use of a given formal legal entitlement is restricted by the principle of good faith. Even someone who has a formally enforceable right, this may not exercise abusive. He tried it yet, the disadvantaged can be tackle for impermissible exercise such rights.

Germany

In Germany, the concept of abuse of rights in particular § 226 and § 242 BGB follows.

In § 226 BGB ( chicane ban) it says:

" The exercise of a right is inadmissible if it just may have the purpose of the circumstances, inflict harm on others. "

In addition, may be prohibited by the provisions of § 242 BGB the exercise of a right. Its wording says:

" The debtor is required to effect the performance as good faith with regard to the common usage. "

Conversely, the creditor is not entitled to claim a power that is not based on the principle of good faith. This would be the case for example if the creditor has acquired the right itself unlawful.

The based on good faith in contract law principle of abuse of rights points out that it is conceptually apply even if for improper use of legal positions in process and public law. The recent jurisprudence goes to keep these cases for the expression of the idea of ​​third-party effect of fundamental rights.

Switzerland

The Swiss Civil Code ( Civil Code) governs the abuse of rights in Article 2, Paragraph 2: " The apparent abuse of a right is not protected by law. " This is about the event that someone has indeed strictly according to law ( or contract) a right. But one finds it unfair if the person exercises his right. Man throws before him, he is abusing his right - this is prohibited by the Civil Code 2. The judge will not protect this right.

Examples

It is improper,

  • Demand what you should immediately re- issue, dolo agit, qui petit quod est statim redditurus
  • Contrary to demand a self-created, worth protecting legitimate expectations an otherwise existing right dolo agit, qui venit contra factum proprium (example: challenge paternity after prior approval of the cross-pollination ).

From the history of law known - and still often used as an example of abuse of rights - the so-called Neidbau: A building that ( at least partially ) is built so to harass a neighbor.

More and similar terms

  • Wanton process management
  • Querulousness ( querulatorisch )
  • Of proceedings,
  • Dilatory
  • General Part of the Civil Law ( Germany )
  • Private Law ( Switzerland )
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