Bulgarian perspectives on the abuse of rights in lights of the Directive2011/7/EU on combating late payment in commercial transactions

Author:Zhana Koleva
Position:Zhana Koleva - Department of Civil Law, Faculty of Law, University of Plovdiv 'Paisiy Hilendarski', Bulgaria, kolevazh@gmail.com.
Pages:599-606
SUMMARY

The subject matter of this research is the abuse of rights in context of the late payment in commercial transaction. The abuse of rights as a law concept is well known in continental law families dates back to ancient Roman law. Considering the vision of the Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transaction3... (see full summary)

 
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Bulgarian perspectives on the abuse of rights in lights of the Directive
2011/7/EU on combating late payment in commercial transactions1
Assistant professor Zhana KOLEVA2
Abstract
The subject matter of this resea rch is the abuse of rights in context of the late
payment in commercial transaction. The a buse of rights as a law concept is well known in
continental law families dates back to ancient Roman law. Consider ing the vision of the
Directive 2011/7/EU of the European P arliament a nd of the Council of 16 Februa ry 2011
on combating late pa yment in commercia l tra nsaction3 the Bulgarian legislation offers a
new point of view of that concept which is cu rrently been discussed in this article as a new
law concept. That point of view has been considered by the a uthor as an abuse of inter ests
instead of a buse of rights. That vision was legislative introduced by the provisions of Art.
303, par agraph 1-2 BCA and Art. 309, par agraph 3 BCA in response to the r equirement
of a cquis communautaire 4. As well as the abuse of interests is considered a s a new la w
concept there is a necessity of a clea r explanation of that notion a nd criteria for distinguish
it from the old concept of the abuse of rights.
Keywords: abuse of r ights; BCA Bulgaria n Commerce Act; OCA Obliga tions
and Contracts Act; CRB Constitution of the Republic of Bulga ria; BGB Bürgerliches
Gesetzbuch; ABGB - Allgemeines Bürgrliche Gesetzbuch.
JEL Classification: K20, K22, K33
1. Introduction
The term “abuse” can be found in different legal texts of the Bulgarian
Commerce Code. We find it in the headline of Article 289 BCA and in the context
of the three others Article 303a, Paragraph 1 and 2 BCA and Article 309a,
Paragraph 3 BCA. We logically presume prima facie that the notion of “abuse” is a
uniform concept. Nevertheless, the legal provisions constitute a doubt. Such doubt
stems from the phrases, which has used in the legal texts. In some cases, there is an
“abuse of right”, but in the others certain actions are recognizes as “abuse of
interest”. Such substantive difference disproves the concept of the uniform notion
of “abuse”. However, the veracity of this concept should be verified.
1 J, L 48/23.02.2011.
2 Zhana Koleva - Department of Civil Law, Faculty of Law, University o f Plovdiv “Paisiy
Hilendarski”, Bulgaria, kolevazh@gmail.com.
3 For convenience to readers the name Directive 2011/7/EU of the EP and o f the Council on
combating late payment by commercial transaction will be simply used in context of the article as
“The Directive”.
4 Community acquis.

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