Two theories on the abuse of rights emerge from the doctrine: one subjective and the other objective. The criterion for distinguishing between such theories lies in the insertion of the element of guilt. It can be confirmed that there is a third way, led by Flávio Tartuce (2004) apud Villas-Bôas (2013), which visualizes in the abuse of the right to a mixed, hybrid legal nature. Therefore, “the abuse of rights is an unlawful act in terms of content, which is illegal for the consequences and which has a mixed legal character – between the legal act and the unlawful act – which is situated in the world of legal facts in the broad sense”. The concept of abuse of rights has been developed in particular in French law, where it has been applied mainly to correct the distortion of the right to property 3. Currently, the theory is called in different orders, in different fields, for different purposes 4. In an article on European law curated by Rita de La Feria and Stefan Vogenauer, Paul Farmer argues that the abuse of the law is a general principle of interpretation. would be abusive 5. In the same article, Tridimas explains that the abuse of the law could be understood in two directions. First, that the object seeks to obtain excessive advantages from a right which cause disproportionate harm to third parties. Second, it leads to the abuse of the law when the person concerned seeks an advantage that corresponds to the rule but goes beyond his or her objectives.6 “CIVIL LAW – RESIDENTIAL RENT – Legal status pursued until the coldness of the contract. Praise.

Price clause. Phenomenon of overrectio to ensure that tacitly agreed adjustments are maintained. The situation created in the face of a freely agreed contractual clause by which the landlord accepts the rent for a certain period of time at a price lower than that expressly adjusted, in the light of modern civil law, creates a new subjective right to stabilize the already consolidated factual situation, in the prestige of the principle of contractual good faith” (TJMG – 16th century. Civil; ACi No 1.0024.03.163299-5/001-Belo Horizonte-MG; Rel. Des. Mauro Soares de Freitas; J. 03.07.2007; v.u.). The theory of abuse© of rights is insoluble for the non-consideration of tax planning, firstly because of the safeguarding of the legal prognosis; secondly, because of the sealing of Article 108(1) of the National Tax Code; and thirdly, the lack of positive effectiveness of ability to pay. According to the Civil Code, it commits an unlawful act which, in the exercise of a right, exceeds the limits of its economic or social purpose or is contrary to good faith or morality: article 187. It also commits an unlawful act on the part of the holder of a right which, in its exercise, manifestly exceeds the limits resulting from its economic or social purpose, good faith or morality.

“It is the exercise of an activity or the exercise of legally authorized behavior that makes it a typical fact. If someone exercises a right that is provided for and authorized in any way by the legal system, he cannot be punished as if he had committed a crime. (e) Subjective element of the conduct. Among the elements of the unlawful act is guilt as a condition of conduct. However, in cases of abuse of rights, the legislature has not expressly formulated the concept of guilt, which could be implicit. However, such an element is not necessary as a necessary condition for characterising the abuse of rights. 2. Article 37(XV) of Law 8.906/1994 does not have the power to exclude the offence of defamation which may be committed by a lawyer, even if it is an express constituent authorisation, provided that the immunity granted to him does not allow such an offence to be carried out, as provided for in Article 7 of § 2 of Law 8.904/1994, so that there is no question of a regular exercise of the law by the case. “8.2 Controversial situations in the context of the regular exercise of the right “This is a type of illegal act that presupposes the violation of the right of others by intentional conduct that exceeds the regular exercise of subjective law. It is wrong to claim to place the abuse of rights between the lawful act and the unlawful act.

Either the act is authorized in the iuspositum and in the covenants if it is a lawful act, or its practice is sealed if it is then illegal. In the dynamics of abuse of rights, in the point of violation, there is that which directly precedes the conduct, and even if it is not completed, the field of law, but to the extent that the act takes place, the conduct takes place within the framework of legality in order to become an illegal act” (NADER, 2004, p. 1). (553) Similarly, Rocha understands that abuse of rights as a category of general legal theory would also©be applicable in tax law. Thus, operations aimed at eliminating, reducing or postponing a tax levy made in disregard of the right to self-organisation would be excluded from non-evaluation because of the convergence of values and the beginnings permeating the octagonal order of the rule of law. 35 For Greco©, Rocha understands that the theory could only be used if there was a legal basis that does not exist at present, because Article 116, which is only graphic, © is ineffective.36 AVILA, Humberto. The provision of personal services by legal persons and their imposition: the use and abuse of the right to create Jurassic peoples and the power to ignore them. In: ROCHA, Valdir de Oliveira (coord.). Important current tax issues. Sao Paulo: Dialectic©, 2013. See 17 pp. 132-151.

As Farias and Rosenvald (2012, p. 681) have pointed out, the Brazilian legislature was inspired by Article 334 of the Portuguese Civil Code, which states that `it is unlawful to exercise a right where the holder manifestly exceeds the limits imposed by good faith, morality or the social or economic purpose of that right`. These expressions are derived from German law, namely suppressio, called confiscation, and surrectio, effect. The economic aspects cannot be confused, let alone overlap with the legal aspects of a transaction, particularly in a branch of law based on legality. Tax law does not follow the system of concretization of civil law, but the maximum prognosis. The right to tax planning must be limited by the rules expressly provided for in the legislation, which are applicable to tax law and are in conformity with the Constitution. As fully demonstrated, the majority of doctrine and jurisprudence follow the understanding that abuse of rights is dispensable for the configuration of the law, the element of guilt.