The question of possibility to abuse the right to sue: theoretical aspects

An increasing impact of humanization of justice is the main tendency in our modern Russian society. This can be explained by the fact that soviet civil proceedings gave citizens wide possibilities to initiate legal actions, but today, taking into account the worldwide standards in the sphere of human and civil rights, the realization of the right to trial gives rise to numerous abuses. According to Article 46 of the Constitution of Russia everyone shall be guaranteed judicial protection of his rights and freedoms. Thus, judicial protection has been presumed. Restriction of the constitutional right to judicial protection is prohibited by the Constitution of the Russian Federation. Thus, judicial protection of civil, family, housing, labor and other rights and legal interests is an effective guarantee for ensuring and enforcing these rights against those who infringe on the rights and legal interests of citizens and organizations or set them at naught. If an interested party has the right to sue and uphold a claim, his/her objective right is to obtain judicial protection. The old-established legislative and in-house directives in the fight against abuse of the right to sue (or barratry) being evaluated, we can acknowledge that they both constitute basic material for the solution of this problem and determine tendencies for the development of procedural law. The means in fighting against abuse of the right to sue cannot downplay the possibility to initiate legal actions since this possibility has been guaranteed by law and its limits cannot be restricted under any circumstances. The essence of the measures undertaken against abuses should be determined by their legal meaning. In our opinion, to overcome abuses of the right to sue it would be appropriate to include the phrase "a reason to sue" used in the order of the Civil Division of the Supreme Court of the USSR 1943 into the procedural law and to fix an unconscientious plaintiff with legal costs. It goes without saying that such a reason should not arise in the course of a trial since this would neutralize the blemish of abuse by the right to sue. Such neutralization would occur if a plaintiff did not declare a claim filed against him in the course of a trial and contested it. It is necessary to introduce a legal rule in order to fix an unconscientious plaintiff with legal costs and establish the possibility to cover damages caused to a defendant by an unfounded behavior of the plaintiff who sued without any need. This would protect a conscientious defendant, the effectiveness of exercising the right to judicial protection and strengthen a social character of civil proceedings.

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