Problem of formation of the category "abuse of right" in Russian law

The article presents the results of research of the problems of formation of such legal category as “abuse of right” in the legislation of Russia. The development in the theory of law of the idea of lawful and unlawful behavior does not allow to fully assess the behavior that does not fall under the signs of either one or the other. Understanding that behavior may not directly contradict the law, but not be lawful, becomes the reason for the transformation of doctrinal views and the emergence of an independent definition - “abuse of right”. The generally accepted understanding of this term cannot become the basis of legal regulation, which implies the development of theory, retrospective analysis, as well as identification of modern problems of its fixation in the legislation, as well as interpretation from the position of law enforcement. Despite the fact that civil law has been operating the term for the last decades, law enforcement implies different interpretation. The absence of gradation in the law of the degree of abuse of right as a basis for characterizing it as the closest to misconduct is an obstacle to improving the legislation and reducing problems in law enforcement, including judicial practice. Different approaches, different understanding of what constitutes abuse of right, predetermine the impossibility of forming a uniform judicial practice, which is necessary in the conditions of a state based on the rule of law, where the basis of social relations is the law. According to the results of a comprehensive analysis, the author’s conclusions are made regarding the reasons for which there are problems in the formation of the concept of “abuse of right”, as well as formulated proposals for solving these problems.