"The one who did you a lot of harm will never forgive you". (T. Fuller)
Whoever uses his right does not harm anyone" - Qui suo iure utilitur, neminem laedit (F. von Paulus). Citra's sentence seems to have become anachronistic a long time ago. However, she secretly hides two باحسن نیت fused ingredient: 1) the postulate of proper use of one's own right, the way it is reasonable, moral, normal; 2) the limits of the exercise of rights - which is also valid for apparently illegal forms of being (from watering one's own garden, digging canals, throwing waste, the way to swim in the pool, to cooking, the volume of listening to music, barbecuing, walking the dog - to the "echoes" of making love , etc.) - against other persons who also possess the same or similar legal powers and capabilities, wants, desires, motives, goals.
Hypothetical cascades in any abuse are threefold. First: you have something, position, possibility, jurisdiction, prerogative, right. Second - you use her/him. Third: with that attitude - active or passive - in a certain section, starting from a certain "point", you do something legally and/or morally illegal, you cause harm to someone (in whatever form) - an individual, a collective, a community, narrow or wide, private , group, state, national or public interest. The key field is the expansion of possibilities and powers. By misusing it, you not only destroy the given frameworks and undermine the very meaning of a certain measure, but - going towards a concretely inappropriate outcome - you don't care about anyone! And neither is life without shores, nor is law without borders. To abuse life is to live it at the expense of another, intentionally, planned. To exploit someone for oneself, for one's benefit and to his detriment. Unscrupulous. In the broadest sense, abuse is connected with egoism, with selfishness. And abusing one's own life: behaving dishonorably and uncivilized, working dishonestly - or else not doing anything fruitful, at most "dembelizing", wasting the available time. Aspire to either vegetating in emptiness, mere static conformity, or even vices and bestial inactions. And about some creativity, education and improvement, about the diligent acquisition of spiritual and material wealth for yourself and your family (and for the wider community), as well as various charities in such an inappropriate life - not to mention.
Almost everything can be abused: an idea, a concept, a word, a promise, an agreement, one's own subjective right, freedom, all power, the popularity of a public figure, beauty, political (and other) elections, any public speaker, tribune, media, state or/ and party position, official, other people's and own vehicle, non-prohibited public meeting, so-called free judge's belief (not only in sports!), strength, force, power, wealth, speed, trust, someone's trouble, subordinate status, one topic, camaraderie, friendship, children, marriage, love, faith, man, animal, land, coast, sea, river, object (weapon, passport...). We are "given" an individual life, our existence is connected with other individuals, members of the social whole, equal to us. It is notorious that we do not last alone, but with others, with all kinds of surroundings.
The consequence of the ineffectiveness of public law - playing around with recognized competences - is, first of all, an illegal offense against the public interest. Anti-target public law action falls under illegality. It represents a counterpart to what is the abuse of subjective rights in the private legal sphere. There are three types of impermissible, legally unforeseen goals that cause the abuse of rights in the field of public law: 1) other public goals (for example, when the authority, instead of preserving public order and peace, had in mind the purpose of rational spatial arrangement, or savings in the state treasury - or the fiscal gave priority to the interest over concern for the safety of public transport); 2) non-public, private: personal (political-party, property and non-property), group, interests of third parties not to suffer damage, not to be harassed and others; 3) impermissible choice of procedural rules - violation of the legal procedure (thus, instead of the expropriation procedure, the application of the requisition process, or instead of the administrative execution of the act, resorting to judicial legal means).
The essence of the so-called abuse is that a legal and legitimate prerogative has grown, during the execution, wrongly, it twisted itself with regard to an undisputed goal that was not respected - or a procedure that was "missed" in whole or in part: a dynamic transformation of what was legally permitted (even /and/ ordered!) into what was legally prohibited took place, in end. A defect in the purpose of an official act - primarily that of the head of state, parliamentary, governmental, administrative, public prosecutor or judicial, i.e. constitutional act - is public law futility. Such abuse is a gross betrayal of professionalism and ethics. And solidarity, humanity. At the same time, it is important to demarcate that official ineffectiveness from the abuse of subjective rights in the private sphere, as well as from the party's procedural powers in administrative and any other legal proceedings.
Applicable administrative law Montenegro expressly prohibits the abuse of power within the framework of the principle of legality. According to that regulation, "when a public law body is authorized by law to decide on an administrative matter based on a free assessment, the administrative act must be passed within the limits of the given authorization, in accordance with the goal for which the authorization was given..." (Article 5, paragraph 4) . According to to the European Convention for the Protection of Human Rights and Fundamental Freedoms any and all abuse of rights and freedoms, their abolition or limitation "to a greater extent than that provided for by the Convention" is prohibited (Article 17). In this regard, "restrictions of freedoms and rights from the Convention shall not be applied for any purpose other than those for which they are prescribed" (Article 18). A Constitution of Montenegro, in the provisions on the limitation of human and minority rights (Article 24) orders in two places that the purpose "for which the limitation is allowed" must be taken into account. Again, something completely different is the slogan of prohibition of abuse of rights provided for According to the Law on Administrative Procedure of Montenegro (Article 15): the duty of the public legal body, the leader of the procedure, to thwart any potential party manipulation of its normatively assigned procedural powers.
On the other hand, and the principle of prohibition of abuse of rights in contractual relationships means respecting the established normative goal of their use. And while the public interest is irregularly "mutilated" as a result of public law's ineffectiveness, abuse of subjective rights is illegal harm to other persons.
It is not always recognizable to separate the goal and motive of someone's official or private behavior. The legal goal is by nature objective, what is required by the general norm to be brought to life, which is followed by an individual act in the application of that rule. In contrast, motives are basically subjective: either on the same line as the set goal, or they are directed in some other direction that leads to an illegal balance, an impermissible purpose. The difference between the goal - what is wanted as the end result, and the motive - motivation, driver, why exactly that is wanted, is in principle undeniable. Both are sometimes clearly visible, sometimes not: they are often decisive in so-called discretionary/partially free legal acts - and regularly less significant in legally bound ones. While legal ineffectiveness covers both legally binding and discretionary acts. Where this and such attachment is weaker, the goal and motive come to the fore.
Here is an illustration when the motive and the goal are separated, "acting" successively, harmoniously and unlawfully: someone's forbidden goal is to illegally remove one civil servant from work (it was intended!), the motive is to hire another in his place (in that is the motivation for what is wanted by the act!), i.e. in order to take his position, with the "opening" of the same job again (sic!). The act of the previous "artificial" termination of that workplace - as a means to achieve the respective goal for the indicated immoral motive - is substantively illegal.
Essentially, it is a game of public legal authority injury public order, in the sense of the most important social values: 1) standard development of existential social flows - people's safety i property, preservation of state borders, public order and peace, regular supply, culture, health, education, traffic, protection environment od pollution, like i satisfying others crucial public need; 2) human freedom i rights; 3) public institution i process mechanisms. Official abuse encroaches on that public domain, justifiably protected by legal coercion, on the level of basic individual legal sanctuaries and related public services. Of course, the goal is never a matter of discretionary assessment, but a precisely defined mandatory public task.
And the relationship between public law distortion of power and bad discretionary evaluation is expressed through the connection of inexpediency and inexpediency. Namely, inexpediency is a type of illegality in the legal neighborhood with a discretionary assessment (where it is provided for by law). Conclusion: juridical inexpediency is an illegal trampling of the goal of the norm, and inexpediency is wrong free weighing in entrusted discretionary public law action.
"The world is not endangered by people who are evil, but by people who allow it." (A. Einstein)
The author is a full professor at the Faculty of Law at the University of Belgrade and a visiting professor at FDES in Podgorica for several years
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