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All Journal JURNAL PROFESI KEGURUAN Jurnal Pengabdian Hukum Indonesia (Indonesian Journal of Legal Community Engagement) JPHI Nurani Hukum : Jurnal Ilmu Hukum Indonesian Journal of Advocacy and Legal Services Mimbar Hukum Jurnal Hukum & Pembangunan Indonesian Journal of Advocacy and Legal Services JILS (Journal of Indonesian Legal Studies)
Syukron Salam, Syukron
Universitas Negeri Semarang
Humanities Education Law, Crime, Criminology & Criminal Justice Social Sciences

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Doktrin Penyalahgunaan Hak (abus des droit) Salam, Syukron
Jurnal Hukum & Pembangunan
Publisher : UI Scholars Hub

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Abstract

The present article examines the emergence of the doctrine of abus de droit in France in the mid-twentieth century through an analysis of key judicial decisions and the debates that followed them. The study commences with an exposition of the manner in which the evolution of capitalism, concomitant with the escalating economic disparity and the propagation of societal challenges, has influenced the judicial approach to the abstract Roman-law tradition of absolute rights. In light of this, the article contends that the civil-law tradition exhibited a fundamental flaw in its conceptualisation of rights as absolute, thereby overlooking objections that were firmly rooted in considerations of social purpose and the social function of rights. The doctrine of abus de droit was developed to address situations in which a right-holder exercises an otherwise lawful right with malicious intent, or in a manner that causes unjustified harm to others. However, the doctrine remains contested. The question of whether the exercise of a right can constitute an abuse has been met with a divided response amongst jurists. On the one hand, there are those who reject the notion outright, while on the other hand, there are those who contend that the law of unlawful acts (responsabilité délictuelle), even when broadly interpreted, is insufficient to establish liability for abusive conduct. These disagreements ultimately gave rise to two competing views of the doctrine's legal foundation: one treats abus de droit as an extension of the concept of unlawful acts, while the other considers it a distinct doctrine that should be explicitly formulated in the civil code
Co-Authors Aji Purwinarko, Aji Alfa Narendra Aprila Niravita, Aprila DAHLAN, TRI ANDARI Edi Subkhan, Edi Hasan Mukhibad Ida Nurlinda Laskarwati, Batari Mardiana - Rindia Fanny Kusumaningtyas Rini Fidiyani Sudijono Sastroatmodjo, Sudijono Supardjo Supardjo Syariefudin, Iqbal Ubaidillah Kamal Wedhatami, Bayangsari