Extract from the case – File 8396/300/2007 District Court 2 – settled definitively
In Romania, the holder of a right can benefit from the defense of his subjective right if:
– the objective right was violated;
– by violating the objective right, the subjective right of this person was violated, since the subjective rights of people are protected by law against prejudicial situations;
– damage has been caused or there is a danger of causing such damage to the objective right; if the law is applied without its purpose being served, it falls within the scope of the abuse of law;
– the damage or potential damage has occurred as a result of the culpable act of the person whose obligation to comply with the law is required.
The presumption regarding the creation of a prejudice being a relative presumption can be removed by proving the non-existence of such prejudice. Also, the eventual damage suffered by the holder of the right for the benefit of which a legal regulation was given must be assessed in relation to the damage suffered by the holder of another right, through the application of the respective norms of objective law.
The holder of a right does not always suffer or can suffer any damage by the very existence of another person’s right.
The purpose of legal norms is to protect against the abusive exercise of rights;
the exercise of the right outside the limits imposed by the rules of law can lead to the liability of the guilty party, if the act causes damage to another person.
Moreover, another interpretation would not even be possible under the current Constitution. Fundamental rights are guaranteed by the Romanian Constitution and therefore, a limitation (fencing) without any purpose, that is, without someone being prejudiced by the exercise of another person’s fundamental right, would be unconstitutional. It is generally accepted and acknowledged – both in domestic judicial decisions and in the jurisprudence of the European Court of Human Rights – that limitations of a person’s fundamental right cannot be imposed except for the purpose of protecting the subjective rights of another person. As a result, if by exercising our right we do not harm anyone, we cannot impose a limit on the exercise of the right; in other words, the necessity of the existence of a prejudice is absolutely imperative to apply the limitations in question.
The person who invokes a violation of a rule of objective law must take into account the finality (the purpose of the law), namely the protection of his legitimate interest / right from harm that he would suffer through the culpable act of another person and the guarantee of coverage or reparation of the damage on who would suffer him in this way.
Therefore, the law is made to defend the interests and legitimate subjective rights of a person in the event of the intervention of prejudicial circumstances. And even then, the defense of subjective interests/rights is not done at any cost, but only within fair limits and without causing unfair damages.
Invoking the law for purposes other than the purpose of the law or without having a legitimate purpose (lack of interest) constitutes abuse of law.
Regarding the abuse of law, doctrine and jurisprudence agree that subjective rights are exercised by their holders within social relationships. Therefore, the holder of a subjective right can exercise it in such a way as not to affect the subjective rights belonging to other people.
The limit of the exercise of the subjective right occurs when this right is exercised for a purpose other than that recognized by law and creates a prejudice to another person. In other words, the abuse of rights exists whenever the holder exercises his right without making any legitimate profit, without justifying any legitimate personal interest, but only with the apparent intention to embarrass or cause damage to a person or, in other words , when the right holder, respecting the letter of the law, violates its spirit. The doctrine notes the circumstance that the evolution of the concept of abuse of law highlights the fact that it is closely related to the notion of good faith.