How Do I Prevent Abuse?

1. Prompts for Questions 2. Principles of Integrity Principles and Prohibition of the Abuse of Rights 3. Investigation of the Function of the Principles of Integrity 4. Investigation of the Function of the Rights Abuse . Discussion of the Doctrine of the Relationship 6. Principles of the Principles of Integrity and Prohibition of Rights Abuse

Prohibition of abuse of rights

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1. Prompts for Questions 2. Principles of Integrity Principles and Prohibition of the Abuse of Rights 3. Investigation of the Function of the Principles of Integrity 4. Investigation of the Function of the Rights Abuse . Discussion of the Doctrine of the Relationship 6. Principles of the Principles of Integrity and Prohibition of Rights

Chinese name

Prohibition of abuse of rights

Foreign name

Ouiiure utitus nemini farit inicuriam

Abuse of prohibited functions

Question prompt

Explanation

Exercise of rights must not be harmful

On the Principle of Good Faith and the Function of Prohibition of Abuse of Rights

First, the question prompts

According to the principle of good faith and the principle of prohibition of abuse of rights, the jurisprudence developed for the purpose of interpretation and application of statutory laws or contracts signed by parties, seeking their specific validity and fairness and justice. However, because of widespread and deliberate misuse of general provisions and the expansion of its functional area, it has greatly endangered the stability of the law, causing the spirit that was originally the highest guiding principle of civil law to be turned into regulations and contractual interpretations. Excuses applicable. Therefore, it is necessary to discuss how to reconcile the two principles of good faith and prohibition of abuse of rights.

Furthermore, according to the original draft amendment to the "General Principles of Civil Law", it is proposed to add one of Article 2 to stipulate in the law: "Rights shall conform to the public interest. Exercise of rights and performance of obligations shall be based on good faith." This draft is Refer to Articles 1 and 2 of the Japanese Civil Code. Subject to formal amendment and publication of the implementation, refer to Article 2 of the Swiss Civil Law and mix with the prohibition on the abuse of rights under Article 148 of the "Current Civil Law in Taiwan." Stipulated, and stipulated in the first paragraph: "The exercise of rights must not violate the public interest or the main purpose of harming others." The second clause is to follow the provisions of Article 2 of the original draft, and it is obviously intentional to " Article 219 of the existing Taiwan Civil Code, concerning the principle of exercising creditor's rights and performing debts, was deleted. The principle of good faith has become one of the guiding principles of civil law, and this amendment has moved it from the debt to the implementation of the relevant rights in Chapter VII of the "General Principles of Civil Law", which is a great progress in legislation. However, problems still occur, that is, what is the nature of the provisions of Article 148 of the new law, that is, the first is the purpose and principle of the provision? Is it a provision for the prohibition of abuse of rights? The second is an example of the first. Are the provisions? Is the first one the effect provision of the second item? Or the first paragraph is the purpose and principle provisions, and the latter one and the second are examples? It is worth exploring. The differences in interpretation are applicable. The results are also different.

Furthermore, the two legal principles, such as the principle of good faith and the prohibition of abuse of rights, are individual legal principles or duplicate legal principles.

For the discussion of the above issues, in order to obtain the proper results, it is necessary to understand the process of the formation of the principle of good faith and the prohibition of the abuse of rights and its legal function.

Principles of Good Faith and Prohibition of Jurisprudence

Since Roman law, the so-called principle of freedom to exercise rights (Ouiiure utitus nemini farit inicuriam) refers to the two jurisprudence such as the exercise of rights without Animus Vicno nocendi and the conduct of litigation with Konum acqum. As for the extent to which they should be restricted, there were no clear regulations at that time, but since the development of capitalism, various contradictions in society have gradually arisen. It has been suspected that the above two legal principles have dealt with these contradictions. At this point, jurisprudence such as the principle of good faith and the prohibition of abuse of rights have arisen, which are used to correct various social disadvantages caused by capitalism. In the early 19th century, Article 1134 of the French Civil Law further provided for the principle of good faith with contractual performance. Germanic complaint in 1855

Although the above-mentioned rules and theories cannot cover the whole principle of good faith and the legal principles of abuse of rights, they can give us an understanding of the fields in which the above two legal principles are generally applied today, and it is also worthwhile for us to make use of them in specific events in the future. Conclusion With regard to my experience after studying this article, I would like to suggest the following:

(1) Guan Zi amended Article 148 of "Current Civil Law in Taiwan"

1. This article only provides for the exercise of rights and performance of obligations. It does not specify the social significance of the content of rights. The content of rights and the exercise of rights (relatively the performance of obligations) should be different. Therefore, I think that it should be added to Article 148. Or the purpose of the right is clearly stated in the law. The reason why this Japanese Civil Law has Article 1: Item 1: "Private rights follow public welfare". "Taiwan's current civil law" may provide: "The content of rights should be in accordance with the public interest," in line with the requirements of the "General Principles of Civil Law" amendment principles (1), (2) and (3). (o) Moreover, if the content of rights is not in the "public interest", it should be that there is no problem with the right, not the exercise of the right.

2. Paragraph 1 only stipulates in principle the exercise of rights, which is not as good as the performance of obligations, but must not violate public interest or harm others as the main purpose, and is not limited to the exercise of rights. In fact, the performance of obligations should be the same. Although it can be said that the exercise of rights is the performance of obligations, it is necessary to know that there are those who have rights and obligations, those who have rights and no obligations, and those who have obligations and no rights. Add "performance of obligations".

3 The first item should be replaced with the second item, covering the second item, "Exercising rights and performing obligations, according to honesty and credit." This is the principle of exercising rights and performing obligations, while the first item states that it is The prohibition on the abuse of rights is a rule of effect in nature, that is, the problem of illegal evaluation. The former is a principle, the latter is an effect, but the cart before the horse can be inverted. Therefore, Article 1 (2) of the Japanese Civil Law is a provision of the principle of good faith, while Article 3 is a prohibition of abuse of rights.

(II) Application of Guanzi

1. The requirement of good faith should be the principle of exercising rights and fulfilling obligations, and the prohibition of abuse of rights should be the effect of violating the principle of good faith, that is, the legal basis for the abuse of rights is the violation of the principle of good faith, not these two provisions are Individual jurisprudence.

2. In order to prevent doctrines and judgments from abusing the principle of good faith and the right to prohibit the jurisprudence, it is necessary to grasp the aforementioned functions when specific events apply. The principle of good faith and the right to prohibit the jurisprudence can be reconciled and appropriate (see above). Various official soaps).

3 In order to remedy the blank provisions in the "current Taiwanese civil law", the aforementioned principles of promissoryestoppel, cleanhands, apostasy, and tolerance theory should be invented with reference to the "current civil law in Taiwan" The specific application is more ethical.

4. On the one hand, the combination of the two legal principles should be applied to the specific and appropriate sociality, and on the other hand, attention should be paid to maintaining the stability of the law, so as not to lose the original spirit and function of the law ...