On Prohibits The Abuse Of Rights Principle

Additional to the preface,this article is composed of six parts aimed to discuss the theory of abuse of rights thoroughly.The first section is about the history of this theory.There existed the concept of restraining the abuse of rights in Roman law,but just at the beginnings. During the period of free capitalism,capitalist countries emphasised absolute rights .So there was no place for the concept of prohibiting abuse of rights to exist.During the monopoly capitalism,the shortcomings of absolute rights appeared and social opinions developed and law changed from the right path to the obligiation path.The theory of abuse of rights came into being to cater such needs .According to the changing situtations ,the courts made many cases about prohibiting abuse of rights.Germany,Swede,Japan and many other countries adopt this policy into their law.Our civil law is the manifestio of people' s rights.To guarantee their rights,the seventh clause stipulates this policy of restraining of abuse of rights.The second section is about its meaning. Abuse of rights is an abstract concept with rich meanings.To understand it,we must connect it with rights, exercising of rights ,and restraining of rights.The elements of rights include interest and power,and right is the power for the subject to gain interest.Exercising of rights is the actions that the subjece operates rights.Exercising of righes is connected with abuse of rights,and is the premise of latter.Exercising of rights does not need an additional legal premise. Exercising of rights has the possibility of being excesive and prohibiting abuse of rights is just prohibiting to exercising rights excessively.Any right must be restricted. Prohibiting abuse of. rights is the restraining of exercising righes.While it is decided not by the scope of the right itself,but by how the substantial law restrains the exercising of rights. According to the social nature of rights,to maintain common interest and balance the interests of civil subjects, substantial law stipulates the policy of prohibitting abuse of rights,and restraining exercising of rights from outside.Given to the historical and practicalconditions,we must be careful when restraining the exercising of rights for thr sake of common interests.lt is very dangerous for us to restrain personal rights casually in the name of common interests.The third section is about its narure.The policy of prohibiting abuse of rights has great moral value and express the humanility of civil law. It is the moral code of law.The policy of prohibiting abuse of rights connect law code with moral code. It has portaits and social functions of both sides.lt is also a general clause and authorize the judges to supplement the leak.The fourth section is about its functions. Ptohibiting abuse of rights has the function of directing civil legislation,acting as the code of civil affairs,as the cirterion of explaining civil regulations.Jurisprudent in Japan and Twain categorize the functions of this principle into the following founjudging tortious acts,clearing the scope of rights,minizing the scope of rights and emphasizing compulsive mediation.The fifth section is about the ascertainment codes and results of abuse of rights.Opinions and cases establish some codes such as lake of legal interest,exercising rights in harmful ways ,lose more than gain ,go contrary to the purpose of rights and the general principle of infringment act. Such codes cross and mend each other and adopt any one is not enough. ((Recommendatory Draft on Chinese civil law}) presided by Mr.Liang huixin adopts both objective and subjective codes and therefore is perfect.According to the conditions, abuse of rights may result the right in vain, rights is restrained ,action in vain or damages.The sixth section is the conclusion, concerning two questions.The first is the stipulation of the future civil law,and the second is the use of probhitiing abuse of rights. ((Recommendatory Draft on Chinese civil law)) expresses the idea of human-centered path with public interest.At the same time ,it tries to minilize elasticity of the general clauses and prevent the judges to abuse.In exercising this principle,we must pay attention to the following questionsrone is avoiding using general clauses; another is that the judges should have the obligition to tell the process in details.