论禁止权利滥用原则的适用

Application of the Principle of Forbidding Abusing Rights

禁止权利滥用原则是禁止滥用权利的行为,而不是否定权利本身。权利滥用可分为恶意损害和损益严重失衡两种类型。前者强调行为人的主观恶意,后者侧重行为人所得微小而造成他人及社会利益损失巨大。适用权利滥用原则认定行为人行使权利的行为构成权利滥用后,也要依据具体的法律规定予以判决,以避免禁止权利滥用原则的滥用。

The principle of forbidding abusing rights does not deprive the relevant rights but forbids the behavior of abusing rights. The abuses can be divided into two different types. One is damage with intention, and the other is unbalance between damage with gains. The former pays more attention to actors＇intention, but the latter emphasizes the result that damages on others by abusing rights far more than what the righter can gains. After the principle confirms exercising rights as an abuse, the case must be judged by specific provision in order to avoid abusing the principle.