The prohibition of abuse of rights in the Draft Civil Code of the Republic of Serbian

• Main Author: Rašević Živorad
• Format: Article
• Language: English
• Published: Faculty of Law, Niš 2020-01-01
• Series: Zbornik Radova Pravnog Fakulteta u Nišu
• Subjects: civil law; abuse of rights; prohibition; subjective and objective approach; inner and outer theory
• Online Access: https://scindeks-clanci.ceon.rs/data/pdf/0350-8501/2020/0350-85012089353R.pdf

This paper explores, explains and critically evaluates the legal provision on abuse of rights proposed in Article 20 of the Draft Civil Code of the Republic of Serbia. The author first briefly presents the institutional development and analyzes the contemporary theoretical dilemmas about the nature of this legal institute. Then, the author compares relevant Serbian and comparative law provisions de lege lata and de lege ferenda. Finally, the proposed legal solution is critically evaluated against the following criteria: its justification in the tradition of civil law doctrine and practice (case-law), adequacy in the development of modern civil law theory, envisaged content and information, and systemic and logical consistency. The research results expose the legislator's choice to formulate a new provision on the provision de lege lata, which is improved by introducing the concept of harm to others and subjective manifestations of abuse. This solution is criticised here for ommission to enumerate all abuse manifestations that have been recognized in civil law literature and case-law, as well as for the ommission to regulate this institute in compliance with modern approach based on the theory of internal limitations of subjective rights. Relying on the premises in the contemporary civil law literature, the author proposes a different provision de lege ferenda, which may more clearly express the nature of this institute and guide civil courts in the judicial interpretation and assessment of the consequences of the abuse of rights.