Obid zakona

slovenian

2016

Inštitut za primerjalno pravo pri Pravni fakulteti v Ljubljani IPP-PF

In law literature it is given support in arguments that abuse of law (avoidance of law; fraus legis) "is about the same age as the law itself" and that it is seen as a "gift of Roman law" for individual legal areas of the European legal system. In the early developing period of the Roman law the application of the law was followed by strict formalism. Laws were exclusively interpreted literally by the letter of the law, any connection with the spirit and purpose of the particular law was excluded. The existence of circumvented transaction achieved its climax in that early period, but already in the late Republican and then following Imperial period understanding of Roman legal science has changed in the way of growing importance of the interpretation of legal norms. General equation of violation of the law and circumvent the law (abuse of law) has succeeded through Justinianus Codex Theodosianus in the year 439. Byzantine emperor Justinian also included lex non dubium in his Codex Justinianus (C. 1.14.5). Later in the medieval period its own doctrine of abuse of law was developed. However, the systematic capture of the notion of abuse of law in that time failed. Development in the modern period was until the adoption of German BGB (Bürgerliches Gesetzbuch) marked through rapid changes and great diversity of opinions. The turnaround in placement of abuse of law in the German legal scheme was done by Savigny (1840) and later by Thöl (1851). Based on the findings of both studies (which even today largely serve as a basis for discussion) in the next thirty years a vast literature was written about development of legal phrase of abuse of law (Gesetzesumgehung). From this time onwards also the German judicial authorities started to address the problem of abuse of law, which had previously hardly used this term. Regularization of fraus legis in Germany was finally regulated by the adoption of BGB. Today abuse of law is defined as behavior that is not directed against the strict sense of the law, but violates its meaning. Transaction therefore does not violate the law by virtue of the specified literal interpretation of the statutory prohibition, but is so constituted that achieves success, which is contrary to the purpose prohibitive norms of the law. Consequently Abuse of law must be strictly distinguished from the violation of the law (agere contra legem), although both practices released the same effects. In case of abuse of the law there is no violation of the law in its text, but it is certainly bypassed its content (sententia) and intention of the legislature (voluntas). And in that abuse of law differentiate itself from simulation (sham), which represents violation of law. In the case of simulation the transaction is oriented only on the bare legal appearance and not on actual (economic) success. In contrast to the sham transaction is fraus legis is not based on "lies", but it is embodies in reality implemented transaction, but in a manner which is contrary to the spirit of the law. It should be stressed that - unlike for simulation - for fraus legis there is no general statutory provision. In practice of the German civil law abuse of law is relates to the provision of basic legal prohibition (par. 134 BGB) and also in many cases to the provision of legal prohibition of unmoral conduct (par. 138 BGB), while the fraus legis rule of the Slovenian civil law is given merely as theoretical idea, resulting from Roman law. Otherwise, today is abuse of law in civil dogmatic (both in German and Slovenian area) pushed into the background and in the caselaw rarely used. But in contrary to that, abuse of law plays an important role in other legal areas such as labor law, inheritance law, administrative law, cartel law and especially tax law. German tax law has a provision on tax avoidance stated in par. 42 AO, while in Slovenian tax system this task has been carried out by the fourth paragraph of Article 74 of the ZDavP-2.

14.02.2020