Abuso del diritto ed elusione fiscale nella prassi civile e tributaria
Author(s)
Santoro, Francesco
Date Issued
June 30, 2014
Type
Doctoral Thesis
Abstract
“What is an abuse? If no one asks me, I know. If someone does, I no longer know”. The abuse of right has been for a long time a mystery, a paradox and an inconvenient concept for those who sustained the doctrine of absolute rights. Meanwhile in Common Law countries it was rejected, in Civil Law area it was beneficiary of an incredible luck, breaking the roman rule of “feci sed iure feci” (I did it but I had the right to do it) in favor of a relativistic conception of rights. This revolution authorized a new judicial control on the (ab)use of rights, allowing judges to decide case-by-case whether or not a particular and specific use of a right was compliant with “bona fides” (good faith). But, as a matter of fact, no one has never examined and built the concept of the abuse of right giving a conclusive and generally accepted answer to the question. This PhD thesis wants exactly to hit this mark, by explaining the structure of the abuse of right, its consequences and which are judges’ powers and limits. For the first time, the abuse of right is perfectly set in the legal order as a particular species of “illicitum” (rule violation), in both Civil and Tax Law, where it’s most frequently applied and connected to tax avoidance. Thanks to the deep study of the past and present doctrine and of the most recent precedents of the “Corte Suprema di Cassazione” (Italian Supreme Court), European Court of Justice (ECJ) and European Court of Human Rights (ECHR), this thesis provides theoretical and practical solutions to the centuries-old problems of the abuse of right.
Additional information
Dottorato di ricerca in Diritto dei contratti pubblici e privati
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