On Prohibition Of Abuse Du Droit

This article is comprised logically as following:In the first part, I talk on the theories of the law's meaning and other theories. The law's meaning prefers to what the law contains such as the criteria the law requires, the law's aim, the effect the law wants to arrive at and so forth. Law can be separated into explicit law and implicit law. In the same norm, there is also the difference between explicit norm and implicit norm. Explicit norm can be carried on without any inferring as it exposed in the norm; while implicit norm can be drawn out only by the inferring from a certain principle, value and so on. Explicit norm seems as a contradictory concept. On the one hand, explicit norm is the basis of implicit norm. On the other hand, implicit norm that is supplementary to explicit norm to some extent amends the scope explicit norm affects. Besides, given proper condition, implicit norm can alter into explicit norm. In the theory of prohibiting the abuse of rights, it is valuable for us to comprehend'against law's meaning'as'against implicit law'. The theory of the law's meaning can better touch the nature of abuse of rights than any other theories, but this doesn't deny other theory's reasonable elements. As for the theory of'out of the definition', if it can be considered as the flesh of the abuse of rights, it can't be considered as the soul, while the theory of the law's meaning can be considered as the very flesh. From here we can also find out that the two theories aren't contradictory , when acting out of the reasonable definition, the right owner must do harm to the relative interest out of the definition, then the act can be considered as against the law, the opposite is the same.In the second part, the theory of prohibiting the abuse of rights is compared with other institutes. In the comparing between prohibiting the abuse of rights and the contradiction of rights, I consider the contradiction of rights refers to the state where the definition of relative rights hasn't been defined but covered by something. And the name of the concept of the contradiction of rights makes sense only before the reasonable definition is defined. The cause of the contradiction of rights is the covering by something. The problem of the contradiction of rights can be considered as the one of prohibiting the abuse of rights, as they have the same nature. As for prohibiting the abuse of rights and tort act institute, we consider them different. Generally when the act accused is accompanied with right, we should solve the corresponding problems with the theory of prohibiting the abuse of rights. Besides, the theory doesn't require the appearance of harm, which is different in the tort institute. As for the principle of good faith and prohibiting the abuse of rights, the principle of good faith not only requires the relative state of care but also the objective criteria in law. The aim of the principle of good faith is to guarantee the other party's reasonable trust. The two theories often appears in one problem, at this time the principle of good faith can be considered as the thing that gives rise to the theory of prohibiting the abuse of rights. But the two aren't the same thing. They own different scopes where they are used. As for the neighborhood relationship theory and the theory of prohibiting the abuse of rights, I believe they own the same nature.In the third part, I talk about the criteria and elements of the abuse of rights. First, it requires the actor own relative right, act with abuse has the overcoat of rights that is put on by the actor, going out of the reasonable definition. Second, it requires the act against the law's meaning. We can analyse whether there is any abuse of rights in the act through its circumstance, what the actor thinks (especially his aim and so on), method, results and so on. Third, it requires harm to a certain interest has already happened or will happen if we don't stop the act. To define the damages, we can infer through the aim and method of the act, or through balancing of interests, such as the balance between interests in the scope of rights or the balance between interests from each parties. Besides, we should consider the principle of good faith.In the forth part, we talk about the varieties of abuse of rights. Such as abuse existing in the circumstance against law's meaning, abuse existing in the aim of act against law's meaning, abuse existing in the method of act against law's meaning and abuse existing in the results against law's meaning.In the fifth part, we talk about the results of abuse of rights. According to whether results have happened, I divide the results into three varieties: prohibiting exerting the act, stopping the act, giving the competence.The sixth part is the end of the article where we construct the norm of the theory of prohibiting the abuse of rights, as we believe civil law is a kind of knowledge and techniques for solving actual problems. I consider that it may be stated as following: When right owner act with rights against the law's meaning, the act that will give rise to harm that shouldn't happen to other people is forbidden; the act that has given rise to harm that shouldn't happen to other people must be stopped , the right owner should give the victim according competences.