ABUSE OF PROTECTION OF PERSONAL RIGHTS – REMARKS DE LEGE FERENDA

Abstract

The aim of the article is a proposal to supplement the provisions of the Civil Code regulating the instruments of both peculiar and non-peculiar protection of personal sphere (human personality). It is about removing the effects of breach (Art. 24 of the Civil Code) and the institution of compensation for non-pecuniary damage (Art. 448 of the Civil Code). The current general approach of the Code does not indicate the criteria that each time should be followed by the court granting appropriate protection. In practice, this often leads to doubts as to whether the adjudicated protection measure remains adequate on the one hand, and whether it does not constitute an excessive burden (primarily financial) for one, who is responsible on the other hand. The practice also provides numerous examples that sometimes the pursuit of claims for infringement of personal rights is more of a harassment for the defendant than a source of compensation for the aggrieved party. An important example of such irregularities is the phenomenon of so-called SLAPP. The article presents proposals for normative solutions that would allow to avoid the negative effects of these phenomena to a significante