What is the "abuse of law"?

abuso de derecho

 

When a statute is used to produce an unprotected by other legal damage and this damage is considered immoral or antisocial, we face the concept of "abuse of law".

The abuse of rights it relies primarily on Articles 7.2 Civil Code, 1.2 Organic Law of the Judiciary and 247.2 of the Civil Procedure Act.

Also, has been covered by numerous Supreme Court decisions, which refers to abuse of rights with statements how are you:

"Presupposes the concurrence of actions with intent to harm or injure or using rules contrary to the orderly social coexistence" (STS 9 October 1997).

"The individual rights are moral limits, teleological and social work and when apparent exercise of a right, actually transgressing the limits imposed on it by equity or good faith with damage to third parties, liability is incurred, or strict sense, who uses his right can not commit any abuse " (STS 25 September 1996).

Essentials

The jurisprudence of the Supreme Court, has established the essential elements of abuse of rights through many sentences (Case 21 December 2000, 12 July 2001, 2 July 2002, 28 January 2005, and 12 June 2014, inter).

1.- Using an objective right and externally legal.

2.- No harm to an interest protected by a legal privilege specific.

3.- Subjective element: who intended to harm is caused or absence of legitimate interest.

4.- Immorality or antisocial damage.

To appreciate the existence of abuse of rights, necessary study each particular case, doing an analysis with the jurisprudence of relapse Supreme Court on similar cases. Also, to the High Court, must be interpreted restrictively and should not be allowed to raise for who is responsible for an unlawful act (STS 15 February 2000).

You can not invoke the abuse of rights when the injured interest has a legal provision for protection: abuse of rights is exceptional, for situations where no other legal protection (STS 25 September 1996).

It can be used both as a defense to a claim and except for cases in which there is no standard support (STS 26 December 1990).

Examples

Some of the areas in which most often abuse is alleged right are as follows:

En corporate matters

"Lifting the Veil" legal persons: In cases where no other substantive and procedural weapons, lifting the veil avoids the damage to public or private interests or the use of legal personality as a way of fraud in foreign damage or the rights of others, or making use of the right antisocial (STS 31 October 1996).

Dividend: Although the member has the general right to dividends, allowing even ask the separation of society into the conditions of Article 348 to de la LSC, if the general meeting approves that no deal, normally not be viable claim for abuse of rights. It must be proved that the purpose of the agreement was intended to commit the abuse and society could defend giving reasons. Moreover, whether the absence of dividends to mismanagement should or excessive remuneration of directors, there are other legal channels to demand the responsibility of the administrator so that would not apply the abuse of rights.

Capital increases: When diluted share capital increase social participation of minority occur, only in case of an absolute lack of justification, it may invoke the abuse of rights. But if there is a need for capital, and the board approves the extension, the partner who wants to maintain its, the theory of abuse of rights it will not help much.

Right to information: Articles 196 and 197 LSC governing the right to information: members are entitled to information needed for the vote of the issues on the agenda and for more information, need to have at least 25% capital. It is considered that there abuse of rights when information is requested when there is no cause for denial or can damage corporate interests.

Notice of meeting: You could incur abuse of rights when switching to nuisance notice how amazing the legitimate expectations of a partner that would occur in the usual way.

Social responsibility manager: The Supreme Court has used the doctrine of abuse of rights in situations in which it is claimed against the directors in situations when it contracted with society, he knew of his bad situation (STS 12 February 2003).

Other subjects

Lack of "Iusta cause litigandi": when a party maintains litigation claims or manifestly indefinite oriented purposes other than natural in the social function of process, the other party may bring an action for tort (STS 6 June 1999).

Paternity Testing: The refusal without good cause to undergo biological evidence in a paternity declaration process involved an abuse of the rights of integrity (STS 19 March 1993). But this issue has been resolved explicitly by Article 767.4 the LEC, allowing the court declaration of filiation requested, when attended other indications, therefore no longer be a case of abuse of rights.

In summary, the abuse of rights must be analyzed in each case and its estimation is not easy by the courts given the restrictive interpretation should be done in this figure, according to the Supreme Court.

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