Lithuanian Case Law Research Articles

Share option versus preliminary agreement. Long-awaited interpretations in Lithuanian case law

Share option versus preliminary agreement. Long-awaited interpretations in Lithuanian case law

The Challenges of the Digital Age: The Problems of Criminal Liability for Cybercrimes in Lithuanian Law

Abstract The spread of digital technology and the convergence of computer and communication devices have changed the way people communicate, do important jobs, and so on. However, this digital age has also opened up a wide range of possibilities of using computer technology for criminal purposes. Therefore, the purpose of this research paper is to specify the main problems of legal regulation and case law of criminal liability for cybercrimes in Lithuanian law. So, the analysis was based on three main questions: the difficulties in legal regulation of cybercrimes in Lithuanian criminal law; the problematic relation between cybercrimes and other related crimes as well as the problems of applying some composition features of cybercrimes in Lithuanian case law. The research was carried out by employing the logical, the systematic, the linguistic, the historical, the comparative and the synthesizing research methods as well as the analysis of legal documents. The analysis shows that the legal regulation of criminal liability for cybercrimes in Lithuanian law has considerable problematics compared to international standards, as well as some composition features of cybercrimes are inappropriate for their application in practice and there many problems with ratio between this kind of crimes and similar crimes in Lithuanian case law.

Economic Abuse and Criminal Responsibility: Lithuanian Case Law on Domestic Violence

Summary Though economic abuse is under researched in Lithuania it is not less widespread nor less serious as physical or sexual violence. The objective of this article is to determine the scope of prosecuting economic abuse in context of domestic violence. Desk research methodology based on case study is used: qualitative content research of Lithuanian case law. The findings of the research suggest that prosecution of economic abuse as a specific form of domestic violence is rather limited in Lithuania: i.e., criminalization is only partial; law enforcement faces difficulties in recognizing and evidencing it; the case law is not adequate (e. g., prosecution mostly focuses on physical violence, it is incident-based, ignores the specifics of domestic violence and economic abuse is commonly interpreted as context of systemic violence but not an independent basis for prosecution). Accordingly, there is a need to enhance criminal law response to economic abuse and explore for the optimal alternative to ensure this in Lithuania.

The Relationship Between Initial Tender and Mini-Competition: EU and Lithuanian Perspectives on Framework Agreements

The article conducts a comprehensive scholarly analysis of framework agreements – a public procurement technique often used across different European jurisdictions. Besides examining the general legal framework of the EU and Lithuanian law on framework agreements, the article also examines the newest EU case law. The authors analyse the relationship between the initial tender procedure establishing the framework agreement and the subsequent mini-competition that follows under the former to award the public contract. In contrast to the Lithuanian legal regulation and related case law, the authors argue that these two stages are interconnected and must be viewed as a unified part of the same procurement process in line with European legal doctrine. Finally, the article highlights the differences between framework agreements and public contracts.

Problematic aspects of the appeal against the resolution by which a question of the acceptance of a statement of claim is resolved

This article is dedicated to analyse problematic aspects of the appeal against the resolution by which a question of the acceptance of a statement of claim is resolved; the article also presents analysis of the Lithuanian case law from 2013 to 2020 on this matter and its compliance with the regulation enshrined in the Code of civil procedure of the Republic of Lithuania.

The Issue of Complicity with a Non-Identified Person in Lithuanian Case Law

The article aims to reveal the issues of complicity with an unidentified person and to analyze the peculiarities of the application of this institute in the practise of the courts of all levels after the plenary session of the Supreme Court of Lithuania on January 6, 2009 when the position was formed. The issues include assumptions based on court decisions, a possible breach of the presumption of innocence against an unidentified person, and the principle of the inevitability of criminal liability is also discussed. The analysis highlighted the incompatibility of some court decisions with the provisions of criminal law, the importance of the wording used by courts and pre-trial officers, prosecutors for the presumption of innocence, and the need to maintain a balance when convicting an identified accused who was associated with an unidentified person.

Išankstinio administracinių ginčų nagrinėjimo ne teisme institutas Lietuvoje: teisinio reguliavimo aiškinimo problematika

[straipsnis ir santrauka lietuvių kalba; santrauka anglų kalba]
 Straipsnyje analizuojama Lietuvos teismų praktika, susiklosčiusi išankstinio administracinių ginčų nagrinėjimo ne teisme vertinimo srityje, siekiant patikrinti prielaidą dėl šios jurisprudencijos nenuoseklumo, vertinant administracinių ginčų nagrinėjimą kaip ikiteisminį instituciniu ir funkciniu požiūriu. Autorė stengiasi ištirti, kokios teisės aiškinimo taisyklės yra įtvirtintos šioje jurisprudencijoje ir kokiais teisiniais argumentais asmenų ginčų ir skundų nagrinėjimas konkrečiose administracinėse srityse teismuose kvalifikuojamas ikiteisminiu administracinių ginčų nagrinėjimu, bei įvertinti šios teismų praktikos nuostatų įtaką šio ginčų nagrinėjimo instituto formavimui ir asmens teisės į veiksmingą teisinę gynybą jame apimčiai.

Komercinių paslapčių direktyvos įgyvendinimas Lietuvos teisėje

[straipsnis ir santrauka lietuvių kalba; santrauka anglų kalba]
 2016 metų birželio 8 dieną buvo priimta Europos Parlamento ir Tarybos direktyva (ES) 2016/943 dėl neatskleistos praktinės patirties ir verslo informacijos (komercinių paslapčių) apsaugos nuo neteisėto jų gavimo, naudojimo ir atskleidimo. 2018 metų birželio 1 dieną įsigaliojusiais įstatymų pakeitimais ji buvo įgyvendinta Lietuvos teisėje. Tai suponuoja klausimus, kaip šios naujos teisės normos dera su galiojančiais nacionaliniais įstatymais, kokia yra tikroji pokyčių apimtis ir koks numatomas poveikis nacionalinei teisės taikymo praktikai. Šiame straipsnyje siekiama atsakyti į nurodytus klausimus.

Swimming Against the Tide

This contribution delves into the discretionary power of national legislatures to implement additional or altered criteria in light of Article 12 of Directive 2014/24/EU (ie the institutionalised and non-institutionalised exemptions). Sparked by national implementations of this provision, it creates a stomping-ground for broader discussions on self-organisation within EU public procurement law. In light of the Lithuanian Case law that has been brought before the CJEU (Irgita Case, pending), it discusses what type of harmonisation was used for this provision, if these implementations are, thus, valid in light of EU law, and what this means for the influence of EU public procurement law on the organisation of public tasks on the Member State level.

The Individual Creditor’s Right to Hold a Corporate Shareholder Liable for an Insolvent Company’s Obligations Outside Bankruptcy Proceedings: The Lithuanian View

Lively discussions on civil liability of companies’ directors towards the creditors of financially distressed companies have been going on for decades. Recent trends in Lithuanian case law, however, show that, in parallel, creditors of private limited liability companies have also shifted their focus to other real masters of business—controlling shareholders—by, rather aggressively, enforcing shareholders’ liability for obligations of insolvent companies. Since recovery rates of unsecured creditors in insolvent liquidations are rather modest, creditors seek to by-pass collective bankruptcy proceedings and bring actions against the abusive shareholder exclusively for their own benefit outside bankruptcy proceedings. Based on comparative examples, the article aims to analyse and evaluate the Lithuanian legal framework by addressing the standing of an individual creditor to hold an abusive corporate shareholder liable for an insolvent company’s obligations from the perspective of competing damage claims between an individual creditor and a bankruptcy administrator. The analysis includes both ordinary and fraudulent bankruptcies.

Kankinimas kaip asmens atsakomybę sunkinanti aplinkybė (LR BK 60 straipsnio 1 dalies 4 punktas): Lietuvos teismų praktikos vertinimas

The purpose of this article is to analyse the issues related to Lithuanian positive obligation to ensure everyone’s protection within their jurisdiction from ill-treatment, as defined by the Article 3o of the European Convention on Human Rights (namely cases where violence is inflicted by private individuals in a private sector). Torture, in Lithuanian Criminal Code, is criminalised as qualifying attribute in the Murder (article 129o, Lithuanian Criminal Code), Severe health impairment (article 135o, Lithuanian Criminal Code), Non-severe health impairment (article 138o, Lithuanian Criminal Code), Causing physical pain or a negligible health impairment (article 140o, Lithuanian Criminal Code), and such as a personal aggravating circumstance - “the act has been committed by torturing the victim or subjecting him to taunting” (article 60o, Lithuanian Criminal Code) to individualize punishment to defendant. According to previous researches (Romualdas Draksas and Regina Valutyte), the existing criminal liability of torture it is not enough. They believe that the Lithuanian Criminal Code should allow a direct criminal liability of action of torture. In this article, the author wanted to verify if there’s really a need of a direct criminal liability in Lithuanian Criminal Code. The author argues that, in the Lithuanian legal system, there is article 60o of the Lithuanian Criminal Code on which basis courts can punish defendant of acts of torture and individualise his punishment, adjusting it to his actions. Therefore, the author wanted to investigate Lithuanian case-law related to article 60o part 1, point 4 of the Lithuanian Criminal Code and ascertain does acts of torture in Lithuanian legal system are considered as a torture and punished without reservation. In other words, it is important to understand if the provision of the article 60o of the Lithuanian Criminal code ensures effective safeguarding from the torture, inhumane or

Lygtinio paleidimo iš pataisos įstaigų taikymo problemos Lietuvoje

Straipsnyje analizuojama asmenų lygtinio paleidimo iš pataisos įstaigų problematika Lietuvoje. Kokybinio tyrimo metu gilintasi į lygtinio paleidimo iš pataisos įstaigų komisijų darbą, taip pat buvo nagrinėjami teisėjų darbo ir sprendimų priėmimo ypatumai. Tyrimo tikslas: atlikus interviu su teisėjais ir lygtinio paleidimo iš pataisos įstaigų komisijų nariais nustatyti pagrindines priežastis, kodėl lygtinio paleidimo taikymas Lietuvos teismų praktikoje nuo 2003 m. iki 2015 m. nuolat mažėjo ir šiuo metu lygtinai paleidžiama mažiau asmenų, nei atlikusių visą bausmę. Straipsnyje pateikiamos išvados turėtų padėti teoretikams ir praktikams pamatyti lygtinį paleidimą teisėjų ir lygtinio paleidimo iš pataisos įstaigų komisijų narių akimis bei paskatinti dialogą tarp sprendimus priimančių teisėjų, pataisos namų darbuotojų, visuomenės atstovų.

TEISMŲ VAIDMUO ARBITRAŽO PROCESE PAGAL LIETUVOS TEISĘ

Straipsnyje pateikiama teismo įsikišimo kiekvienoje arbitražo proceso stadijoje niuansų apžvalga ir tiriamas priimtų ir siūlomų Lietuvos Respublikos komercinio arbitražo įstatymo pakeitimų bei formuojamos Lietuvos teismų praktikos indėlis į arbitražo, kaip ginčų sprendimo būdo, veiksmingumą ir visavertiškumą.

Laikinojo nuosavybės teisės apribojimo problematika baudžiamajame procese: optimalaus sprendimo beieškant

The question of the balance between the protection and the coercive measures of the property rights still remains relevant to the Courts or prosecutors each time dealing with the issues of applying a temporary limitation of the property rights. Lithuanian law establishes several ways of affecting property rights: it could be a coercive measure under the Criminal Procedure Code or a penal sanction under the Criminal Code. The temporary limitation of the property rights as a coercive measure is related to the human right of the inviolability of property. Therefore, any restriction of the property rights should be imposed as an ultima ratio measure, without which it would not be possible to achieve the required goals in the criminal procedure. It should be noted that even if justifying the use of the coercive measure to achieve the required goals, the right of the inviolability of property is violated if such measure is applied too long or when imposition of such measure is disproportionate. It is worth mentioning that the coercive measure - temporary limitation of the property rights could be applied even during the pre-trial investigation when there is no Court’s decision about the person’s guilt. For such reason the imposition of such coercive measure should be strictly measured. Because of fast advancement of technology and digital products in today’s world, the circle of the objects of the ownership becomes wider, broadening the meaning of the property. Accordingly, the coercive measures, directed to the restriction of the property rights, should adapt to the changing environment. According to the Lithuanian and international case law and legal doctrine, this article analyses problems when applying a temporary limitation of the property rights. Although the applicable terms of such coercive measure are set in the Criminal Procedure Code, the number of extensions in the cases involving serious or very serious crimes shall not be subject to any limits. When the case is forwarded to the Court, the Court, disposing of the case, decides concerning the imposition of the temporary limitation of the property rights or its application, and the number of extensions is also unlimited. In practice, property rights of the individuals are limited to a relatively long period of time, which results in the loss of the value of the property. Such loss, after the Court enters the decision, affects both the person whose property rights were restricted and the person, for which the benefit of the property rights was restricted. After the evaluation of the Criminal Procedure Code, which provides the possibility to impose a temporary limitation of the property rights in order to secure a civil claim, even when such civil claim is not submitted (and could not be submitted until the evaluation of the evidence in the Court proceedings) in order to avoid unnecessary use of the coercive measure, it is proposed to amend the Code, setting a term within which the victim should make a decision whether to bring civil claim or not. The term should not stop the victim to bring such civil claim later in the process. Accordingly, in order to protect the value of the property from the depreciation, when the temporary limitation of the property rights is imposed in the proceedings, it is advisable to allow to dispose such property before the Court enters final judgment. The prosecutor or the Court by the initiative of the prosecutor in regard to the circumstances of the case could enter a decision to dispose such property if there is no complaint from the owner of such property. After this, the limitations could be imposed to the funds obtained from the sale of such property.

Teisės akto, kuriuo pagrįstas teismo sprendimas, pripažinimas antikonstituciniu kaip pagrindas atnaujinti civilinį procesą

Reopening of civil proceedings is an exclusive procedural measure, which helps to ensure a right to court. Its aim is to remove possibly unlawful court decision, thus delivering justice and avoiding consequences of such decision. Therefore, reopening of civil proceedings seeks to protect not only interests of private parties, but also public interest. However, if we look to Code of Civil procedure of the Republic of Lithuania, we can see a lack of possibility in Lithuania to reopen proceedings, when Constitutional Court of the Republic of Lithuania declares that law applied in a specific case is in conflict with the Constitution of the Republic of Lithuania. Lithuanian case law does not allow reopening of proceedings in civil cases based on mentioned ground, because otherwise principles of stability of legal relations and certainty of rights and duties of subjects“™ legal relations would be breached. Contrary to civil cases, administrative cases may be reopened based on mentioned grounds. Moreover, administrative courts examine cases regarding damages, incurred due to unlawful actions of public administration bodies, and these cases may also be reopened based on mentioned ground, though they are civil cases. Therefore, administrative courts case law and general competence courts case law differs on the question regarding reopening of proceedings in civil cases, when Constitutional Court of the Republic of Lithuania declares that law applied in a specific case is in conflict with the Constitution of the Republic of Lithuania. Meanwhile, about half European states“™ laws, which were analyzed in this work, allows to reopen civil proceedings on mentioned grounds, and almost all states allow to reopen proceedings on mentioned ground in criminal cases. Such differentiation between civil and criminal cases is explained by the principle of lex benignor retro agit: if law, which was basis in criminal or administrative case, is declared void, such law has retroactive validity, if person“˜s, who was penalized in such case, situation may be improved. Meanwhile, improving situation of one party in civil case, may worsen other party“˜s situation. However, it must be noted, that in such situation other party“˜s situation does not always worsen. Importance of violations of human rights in civil cases is underlined by European Court of Human Rights. Even though ECHR“˜s view is that reopening of proceedings is limited by principle of legal certainty, in certain cases it may be the most effective way of restoring justice, which was denied by breaching human rights. Therefore, reopening of proceedings, when Constitutional Court declares act applied in a specific case is in conflict with Constitution, is justifiable in cases of violation of human rights. Meanwhile Constitutional Court of the Republic of Lithuania deems that reopening of proceedings on examined ground is defensive measure meant to protect constitutional human rights. Lack of possibility to reopen proceedings on examined grounds would not allow to remove unconstitutional consequences induced by unconstitutional act from Lithuanian legal system, which in turn would create preconditions to violate numerous principles and values, established in Constitution of the Republic of Lithuania, and therefore a risk to ruin foundations of the State of Lithuania, as the common good of the entire society which is consolidated in the Constitution. Moreover, reopening of proceedings would allow to accomplish person“™s right to court. By not allowing to reopen proceedings on examined grounds persons, who go to court demanding to protect their breached rights before Constitutional Court of the Republic of Lithuania deems law as unconstitutional and persons, who go to court after deeming law as unconstitutional, are treated unequally. Because current Lithuanian case law and laws related to examined problem are in conflict with the Constitution of the Republic of Lithuania, this problem should be fixed. Therefore, in this work I provide several different ways how to tackle this problem. The most logical one is to apply petition to Constitutional Court of the Republic of Lithuania to examine constitutionality of article 366 of Civil procedure code of the Republic of Lithuania, arguing for the lack of ground to reopen proceedings in civil cases when when Constitutional Court of the Republic of Lithuania declares that law applied in a specific case is in conflict with the Constitution of the Republic of Lithuania. Other effective way to tackle this problem is preliminary constitutional control. Although, it would not be possible to examine all laws, before they come into force, but it would prevent a significant part of unconstitutional laws from entering Lithuanian legal system and would ensure persons“™ right to court.

Probleminiai priežastinio ryšio nustatymo aspektai nagrinėjant eismo saugumo pažeidimų bylas

The causal relationship between conduct and result is an element of offence, the establishment of which is necessary for a conviction of a misdemeanor. The establishment of causal relation is a question of law, rather than fact, because it is determined on the basis of theoretical reflection. Whether the causal connection is established correctly or not depends only on the lawyers that examine criminal cases, as well as their ability to apply the knowledge in practice. Commonly the issue of determining the causal connection arises in cases relating to the violations of Road Traffic Safety Regulations. There are quite a few theories of causation, but scholars still disagree which one is the most appropriate for application in practice. While common lawyers apply different theories of causation, in Lithuania there is no legal clarity which theory and which methods should be used by a court while addressing criminal cases. Causal relationship between conduct and result is seldom mentioned in textbooks of criminal law, nor is it defined in the Criminal Code of Lithuania. Common law scholars discuss the applicability of different theories of causation, while in Lithuania such debates do not occur at all. In order to reveal the existing problems for the determination causal relation in criminal cases, Lithuanian case law is used as an example. The dispute between courts and commentators on the issue of legal causation indicates that causation is a very complex phenomenon and one method is insufficient for the successful application of it. Legal causation is the most important issue to determine when addressing cases, and it is important to identify the main problems that occur. The aim of this article is to discover and identify the major problems that arise on the issue of legal causation while addressing cases of violations of Road Traffic Safety Regulations. [...]

Non-Compliance of the Decisions of the Shareholders' General Meeting of the Company with the Imperative Provisions of the Law and Incorporation Documents

The object of this research is the institute of invalidation of decisions of the shareholders’ general meeting of the company. Challenge of decisions of the general meeting because of their non-compliance with the imperative statutory norms and incorporation documents is perhaps the basis that is the most frequently relied on for the nullity of decisions of the shareholders’ general meeting. Thus, it is important to correctly interpret and apply these grounds for nullity. The said issues have not attained proper focus of the Lithuanian legal theorists and no detailed analysis has been carried out in Lithuania in this field. This article firstly provides a legal analysis of those grounds. The purpose of the research is to present a detailed analysis of interpretation and application in the Lithuanian case-law of the two grounds for invalidating decisions of the shareholders’ general meeting of the company: non-compliance with the imperative statutory norms and incorporation documents. Various scientific methods have been applied: linguistic, document (source content), logical, systematic, comparative, historical, critical analysis, etc. A study revealed that the decision of the shareholders’ general meeting of the company may be declared null and void, not only when its content is contrary to the imperative statutory norms, but also when the procedure for the adoption of the decision fails to meet the requirements of the said norms. In addition, the unlawfulness of the decision’s content may be determined on the basis of violation of procedural legal norms established in the Law of the Republic of Lithuania on Companies. A decision of the shareholders’ general meeting might also be declared null and void, if it violates the procedure for convening and conducting the general meeting and decision-making, as established in the company’s incorporation documents. Among other things, unlawfulness of the decision of a general meeting may be determined by reason of its failure to comply with the goals of the company’s activity established in its incorporating documents. This contradiction is usually associated with obvious economic uselessness of the transaction concluded or to be concluded on the basis of a specific decision.

The Permissible Modification of the Suppliers’ Bid According to the Lithuanian Case Law

The Permissible Modification of the Suppliers’ Bid According to the Lithuanian Case Law