M.V. Arzamastsev

Criminal Evaluation of the Exercise and Abuse of Right

2021. No. 2. P. 177–203 [issue contents]
The article examines the issues of harm caused by a person who acts on the basis ofhis subjective right. This problem is one of the constitutional foundations of criminal lawand has of a cross-sectoral nature. The article analyzes both theoretical provisions andlegal positions of the Constitutional Court of the Russian Federation, the practice of theEuropean Court of Human Rights and the Supreme Court of the Russian Federation.The constitutional principle of proportionality was used to develop a methodology forcriminal law assessment of the abuse of human right, and its applicability was checkedwith specific examples. The analysis shows the importance of the use of the right as acircumstance precluding wrongfulness of the action. Due to the free use of natural rights,it cannot be identified with the execution of the law or duty. The need for differentiationof the primary and derivative rights, determination of the real right holder is shown.Situations of refusal of subjective right and its delegation were analyzed. Criteria havealso been proposed for distinguishing between the lawful use of a right and its abuse,which serves as a legal guarantee of individual rights. Signs of abuse that may be takeninto account by the legislator are the caused harm, the way in which the right is used, andthe purposes and motives for its realization. The assessment of public danger depends oncomparing these signs and determining the degree of their manifestation in a particularaction. The author concludes that criminal liability for abuse of a person’s constitutionalright is inadmissible if the abuse itself is minor or has minor consequences. Abuse of theright must be distinguished from an independent act — arbitrariness. Two factors arerecognized as key to assessing the methods of exercising a right — the typical or atypicalnature of the chosen behavior for a particular competence in a specific historical period,as well as its relationship to the content of the right. Cases of cover by the subjective rightto commit a crime were analyzed. When assessing subjective signs, it is also necessaryto determine the predominance of lawful or unlawful intentions in a person’s behavior
For citation: Arzamastsev M.B. (2021) Criminal Evaluation of the Exercise and Abuse of Right. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 177–203 (in Russian) DOI: 10.17323/2072-8166.2021.2.177.203
Citation: Arzamastsev M. (2021) Ugolovno-pravovaya otsenka osushchestvleniya sub"ektivnogo prava i zloupotrebleniya im [Criminal Evaluation of the Exercise and Abuse of Right]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 177-203 (in Russian)
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