THE DIFFERENCE BETWEEN THE ABUSE OF THE SUBJECTIVE RIGHTS AND THE ABUSE OF OFFICIAL POSITION

Abstract

In practice, abuse of subjective rights and abuse of official position are often equated. However, the theory of law makes a  rather clear boundary between these two phenomena. In the first case, although a right is exercised in accordance with the law, another person is harmed and there is an intention to harm that person, while the holder of the right does not have to directly benefit from such exercise of the right. The benefit here is mostly of a psychological nature - the right's holder feels some satisfaction because someone is being harmed, someone that he/she doesn't like and especially because of the fact that everything remains within the law. Therefore, there is no violation of law in the case of abuse of ( subjective) rights.

On the other hand, abuse of official position is a major violation of rights. This means that the holder of certain rights, who is in a position of authority (most often in a leadership position within a state body, state institution or any legal entity), mixes his two statuses as a private person and as an official person, and while he is in the position of an official person,  he obtains an obvious , direct benefit for himself or someone close to him, which benefit he could not otherwise get by regular means. Abuse of official position is sometimes connected with a conflict of interest, in terms of the laws regulatinganticorruption measures. Also, abuse of official position means always violation of law; once discovered, it always implies misdemeanor liability, criminal and often civil, material liability.

The paper deals shortly with the theoretical foundations of these two legal concepts, as well as the practical implications and challenges in distinguishing them.