ABUSE OF PROCEDURAL RIGHTS IN CIVIL LITIGATION

Abstract

The abuse of procedural rights in civil litigation is a common denominator of all modern legal systems which leads to antisocial undermining of the legal order in its entirety, creating a state of denial of its legal protection function. Due to the social function of the litigation procedure, еxercising the content of subjective rights and authorizations, the holder of the right should perform bona fide in accordance with legally projected goals and interests. The relation of loyal cooperation between the court and the parties relies on the freedom to exercise procedural rights within the limits that do not violate the rights of others, arising from the old maxim alterum non laedere. Considering that litigation is not an ordinary mechanical process but a complexity of actions, related in a temporal, causal whole, the impact of the human factor is not insignificant at all. The affirmation of the exclusively dispositive character of the litigation procedure creates numerous headaches in the court practice, although every participant in the procedure is expected to do the opposite - to be responsible for their own procedural action. Creative potential of the parties in the procedure of the constitutionally guaranteed right to legal protection turns into various forms of abuse which as a phenomenon has always existed in the system of law enforcement. However, the abuse of procedural rights as an impermissible activity, regardless of the success of the case, carries with it responsibility for the parties in the form of: reimbursement of the costs of the procedure, fine and compensation. Measures to prevent and sanction procedural abuses are a procedural instrument for ensuring legal and effective legal protection and at the same time strengthening the procedural discipline. The subject of interest of this paper is the wide range of "legally permissible" procedural actions that the parties in the litigation procedure undertake very refined and have as a consequence abuse of procedural rights. Procedural activities that seem correct in a given situation can easily turn into a classic abuse. That is why an indispensable segment of consideration the procedural instrumentation of measures that enable the court through the process of management of the procedure to reduce the procedural abuse to the limits that are socially acceptable. Using the method of qualitative analysis, the aim of the author is to point out the essential questions that are relevant to the stated issues. This especially refers to the forms of abuse of procedural rights that are most often visible in the case law of the Macedonian courts and the functionality of the system of preventive and repressive measures for their sanctioning in accordance with the current legal solutions in domestic procedural and comparative law.