Недобросовестность как диагноз злоупотребления субъективным гражданским правом.

M. : Издательство Проспект, 2019.

Wolfson V.

A new work by Vladimir Volfson is entirely dedicated to bad faith in the exercise of subjective rights. While the civil law doctrine in this domain of legal knowledge is becoming increasingly sophisticated in line with a correspondent move of legal relations towards growing complexity, the subject retains much of its scholarly appeal largely due to an extreme diversity of academic approaches as well as to uncertainty in the current jurisprudence. The author of this monograph differentiates abuse of law from bad faith behaviour. The latter is, in his view, the conflict in the intentions about the claim ground. The lack of good faith, subsequently, is such a flaw in the claimant's interest that, if established, should launch a test whether the action in question constitutes an abuse of law. However, this indicator of the condition of the claimant's interest is not in per se equivalent to the condition itself; therefore, the court should not equate bad faith to abuse of law. The work goes on to unfold the above viewpoint, suggesting some arguments in its favour. Set against this notion of bad faith are the cases of what is described as legally neutral bad faith and even one that is legally allowed. The author also explores the standards of bona fide (as a prerequisite of the legal claim) applied by the lawmaker in special provisions of the civil legislation. Following his understanding of the good faith category, the author criticizes the current position of the principle of good faith in the Russian Civil Code as a legal obligation and a general prerequisite of a claim. In the framework of the view set forth in the work, this principle can be nothing but a legal presumption. Legislation and case law are given as of November 2018.

Keywords: злоупотребление правом, добросовестность, недобросовестность, презумпция добросовестности, presumption of good faith, bad faith, принцип добросовестности в гражданском праве, осуществление гражданских прав, exercise of rights, good faith, principle of good faith, abuse of rights