The recent Lithuanian court practice shows discrepancies in cases dealing with partitioning of common partial divided property. Moreover, no doctrinal research has been concluded on the limits and conditions of the co-owners‘ right to demand that his share should be partitioned from the common partial ownership in Lithuania. Taking into account that proper implementation of co-ownership rights is based on common agreement of co-owners, when no agreement is reached between co-owners regarding the fact and the mode of partitioning, a (...) question arises on what conditions and to what extent the co-owner is free to implement his right to demand partitioning of his share from the common partial ownership. The research on historical developments of the partition law in different European countries shows that the co-owner’s right to partition is based on the idea of pluralistic conception of the modern property law objects. The authors of this article argue that this conception allows the co-owner to enjoy the right to dispose of his share in the common ownership as a separate object of civil turnover at his own volition and without the other co-owner’s consent. However, the right to partition is not absolute and is limited by the rights of the other co-owner to his share of the same property, so the right to partition may be implemented only following the proportionality and interest balance between the co-owners. (shrink)

The article outlines some aspects of the civil law in Lithuania, an Eastern European country, which underwent an essential transformation in the last decades. The author outlines the development of the Lithuanian civil law from the oldest written sources up to the adoption of the new Civil Code of the Republic of Lithuania in 2000. The author is critical about the denomination of Lithuania as a “new” state and draws attention to the history of Lithuanian law, which spans (...) hundreds of years. The article emphasizes the continuity of the legal tradition and the heterogeneity of law – the coexisting of several legal systems in the territory of one state. The article discusses the role of Roman Law in the legal system of Lithuania. Even though Roman Law has never been applied in Lithuania, the author argues that it nevertheless had an indirect influence on Lithuanian private law. Roman Law and Canonical Law were among the main sources while drafting the three codified acts, the Statutes of Lithuania, in 1529, 1566 and 1588. The knowledge of Roman Law acquired by lawyers at universities in other European countries was transmitted through drafting of the laws and the jurisdictional and administrative practices. (shrink)

The article describes the publications of 1945–1990 in the Lithuanian emigration press, reflecting the efforts to use the intellectual potential of Lithuanian emigration in the future in order to reconstruct the Lithuanian political-social system and public relations after breaking away from the Soviet Union. One of the tasks of higher importance the emigration considered was the search for the proper future legal regulation in the sphere of ownership relations, taking into account the essential reforms in this sphere (...) that have been made in Lithuania by the Soviet authority. The discussions in the field of ownership relations began practically from the beginning of the second Soviet occupation after the representatives of Lithuanian residents retreated to the West. The most active discussions were held during the sixth-seventh decades. The eminent interwar period Lithuanian specialists in conformable fields expressed their opinion in the press. (shrink)

This article is based on the presupposition that postmodern philosophy has been largely influenced by Nietzsche's writings. The author raises the question of how Nietzsche and postmodern philosophy are interpreted in the contemporary philosophical discourse in Lithuania. The conclusion drawn is that many philosophy critics in Lithuania are interested in Nietzsche's philosophy (Mickevižius, Sodeika, Šerpytytè, Sverdiolas, Baranova) and in the problems of postmodern philosophy (Keršytè, Rubavižius, Žukauskaité, Serpytytè, Šverdiolas, Baranova, Norkus). The article also raises a second crucial question: beyond the (...) critics, are there any truly authentic postmodern thinkers in Lithuania? This article's main hypotheses is that Arvydas Šliogeris' philosophy is the best and perhaps the only example of original Lithuanian postmodern thought; it is based on, and interconnected with, the deeply inherited roots of existential thought in Lithuanian philosophical culture. The arguments for these hypotheses are as follows: first, Šliogeris is the first philosopher in Lithuania who has tried to reason in an interdisciplinary manner, e. g. trying to overcome the modernistic distinction between philosophy and the arts (especially literature, poetry, and the visual arts); secondly, Šliogeris's philosophizing is indispensable to his writings— his texts are examples of an experience of writing as thinking and thinking as writing; thirdly, following Deleuze's presupposition that the philosopher is a creator, one can see this creative aspect in Šliogeris's approach. His texts show how it is possible to synthesize insights from philosophy and poetry. (shrink)

In modern times, philosophy finds itself in a contradictory position. On the one hand, it has long been a theoretical abstract knowledge of the phenomena of reality and the ideas that express it. On the other hand, it is, at its core, a science that reflects on changes in fundamental human values. Values are embedded in the structure of each society, in the variety of issues that it has to deal with. Therefore, to be in touch with changing reality, philosophy (...) naturally responds to societal issues that have a lasting impact on human beings and their environment. Being aware of the multi-layered nature of the Anthropocene, the author of the article explores the values that emerge in Lithuanian philosophy in the context of research on the Anthropocene. For this purpose, the insights of Lithuanian philosophers Naglis Kardelis, Gintautas Mažeikis, Arvydas Šliogeris, Mintautas Gutauskas and Danutė Bacevičiūtė into the most significant changes in nature caused by the Anthropocene are discussed. (shrink)

The article deals with a specific type of contract that an heir is entitled to conclude—the transfer (or sale) of the rights of succession. As a starting point, the author of the article analyses the formation and further development of the transfer of succession as a whole (hereditas) in the Roman law. Two major proceedings used by Roman lawyers for the purposes of the alienation of hereditas are analysed, one being in iure cessio hereditatis and the second taking the form (...) of emptio venditi hereditatis. The interrelations between this kind of transfer and the recognition of the possibility of the assignment of rights (cessio) under the Roman law are pointed out. The author traces the impact of the principles developed by the Roman law on the legal regulation of the contract in question in modern codification by drawing attention to the French Civil Code and the Civil Code of Quebec. The author states that the legal rules on the sale of the rights of succession contained in the new Lithuanian Civil Code adopted in 2000 have been transposed, to a large extent, from the two abovementioned codes. After analysing the object of this contract, the author concludes that it is the sale of a certain incorporeal property (res incorporales) that is meant by the terms ‘succession’ (hereditas) or the ‘rights of succession’. This feature distinguishes the analysed contract from the ordinary contracts that an heir may conclude for the purposes of the alienation of specific objects making part of the succession. (shrink)

The idea of the article was suggested by Lotman’s theory about two basic mechanisms of social behaviour — fear and shame. The presented paper aims at highlighting two other mechanisms of such kind — guilt and repentance. The novella Isaac (1960–61) by Antanas Škėma, the Lithuanian writer in exile, is about a Lithuanian patriot who kills a Jew called Isaac during the years of German occupation. The author’s fundamental conception implies that the real perpetrator of crime is not (...) a separate individual but the crowd representing the values of the society. Škėma’s interpretation of history demystifies the moral system in the inter-war Lithuania and proves it to be a collection of futile signs that fail to prevent society from falling into mass psychosis and following primitive impulses. The other Lithuanian novel, Leonardas Gutauskas’ Šešėliai (Shadows) written in 2000, focuses on the tense relationships between Lithuanians and Russians, suggesting that there are several moral systems determining the concepts of guilt-repentance. The Christian agricultural society embodies the ethics of individual responsibility. The domination of the Russian ethic code is associated with the separation of Churches and the strengthening of the Orthodox Church. A moral system based on harmony and aiming to reconcile the guilty and the innocent comes across as a sought ideal. Both novels discussed exemplify different modes of a liberating society. The first one is an account of the society’s effort to become free of the guilt complex and rethink its history. The second one articulates theguilt of the Russian nation against Lithuanians and fights russophobia at the same time. (shrink)

The present article analyses the so-called ‘crime of denial’ recently established in Article 1702 of the Lithuanian Criminal Code. It describes how this crime was introduced in the Lithuanian Law, and the reasons for its present form and challenges. The crime has been applied in two instances (Stankeras case and Paleckis case). The author discusses these two instances of application, critically reviews the arguments of the Prosecutor’s Office and of the court of first instance and shows that at (...) least in the first cases of application of this crime, its objectives and particularities are misunderstood. (shrink)

Private copying exception is an exception to copyright which is present both in Lithuanian national law and law of the European Union. Recent jurisprudence of Court of Justice of the European Union interpreted legal regulation of private copying exception in the laws of the European Union. The mentioned jurisprudence raised concern whether Lithuanian copyright laws on private copying exception and their interpretation in case law of Supreme Court of Lithuania are compatible with the European Union law. This paper (...) analyses the nature and intention of private copying exception, its reflection in Lithuanian and European copyright law and evaluates Lithuanian laws and case law in the light of recent jurisprudence of the Court of Justice of the European Union. The authors conclude that recent jurisprudence of the Court of Justice of the European Union on private copying exception shall not lead to any dramatic or substantial changes of Lithuanian national copyright laws. (shrink)

This article aims to analyze the legal regulation of performers’ rights in Lithuania. Analysis is divided in two parts: the first part analyses performers’ economic rights by comparing them to the authors’ economic rights and the legal regulation of performers’ rights in foreign countries; the second part of article focuses on the different content of performers’ economic rights due to the mean of fixation of performance (unfixed performance, performance fixed to the phonogram, audiovisual fixation of performance). Analysis of the (...) class='Hi'>Lithuanian legal regulation on performers’ economic right has shown that although Copyright Law of Lithuania in general complies with international and EU acts governing performers’ rights, four main fields of legal regulation need to be revised. Firstly, Copyright Law should provide that when concluding an agreement concerning an audiovisual fixation of his performance with a producer of audiovisual work the performer transfers his exclusive rights to the producer, the performer shall retain an unwaivable right to receive an equitable remuneration for every transferred exclusive right. Secondly, the legal definition of phonogram published for the commercial purposes should be provided in the Law on Copyright of Lithuania. (shrink)

The object of this research is the law created and enforced by different selfgoverning institutions such as the Church, the town, province and village communities in Lithuania in the Middle Ages. The author examines what was the contribution of this law to the realization of the law-governed state model in the Grand Duchy of Lithuania. The author believes that this problem can be viewed through the prism of the competition of these communities and their law with the aristocratic Lithuanian (...) state and the law created and ruled by noblemen. This aspect is not considered in the known scientific studies. Pluralism of law is highly preferable as an idea and in practice in law-governed states, because some regress of this conception in one community can be compensated by a progress in any other community. The author thus aimed to advance the hypothesis that favourable conditions for the law-governed state conception in Lithuania in the Middle Ages potentially existed. (shrink)

In this article the author analyzes the first written constitutions adopted at the end of the eighteenth century (the Constitution of the United States of 1787, the Constitution of Polish – Lithuanian State and the Constitution of France of 1791). These constitutional acts mark the beginning of the era of constitutionalism. These are the constitutions of the first phase (‘wave’) of constitutional development, which laid the foundations for the further establishment of constitutionalism in the world. The history of the (...) first modern constitutions confirms that the nations adopt constitutions in order to protect individuals from possible abuses of state power. The essence of constitutional regulation is the restriction of this power. The three countries differ in many ways, but all had certain tradition of the restriction of powers. The first modern constitutions established the separation of powers and protected classical individual rights. They have become an example for the authors of later constitutions. These constitutions propose legal standards for constitutional development. Each of these constitutions is an original system of principles and norms. (shrink)

The article deals with the legal acts which were adopted by the Supreme Council Reconstituting the Seimas of the Republic of Lithuania on 11 March 1990, and which are related to the restoration of the independent State of Lithuania. The author discloses the chronology of the legal acts adopted on that day and investigates why some particular act was adopted first, and only later another act was passed; he investigates the circumstances which determined the content of the legal acts and (...) shows the interconnection between these acts. The sequence and content of the legal acts of restoration of independence were determined by the fact that the independent State of Lithuania could not arise from the so-called “Lithuanian SSR” which had never been a form of Lithuanian statehood. The restoration of independence could and had to be grounded only upon the continuation of the pre-war Republic of Lithuania. One had to draw a boundary line between the Supreme Soviet of the Lithuanian SSR, which was elected in democratic and free elections on 24 February 1990, and which was a genuine representation of the Nation, from the former Supreme Soviets of the Lithuanian SSR—the essence and formation procedure of which was completely different. This was done by adopting the Declaration “On the Powers of the Supreme Soviet of the Lithuanian SSR” in which it was held that in the 24 February 1990 elections the Nation vested to the deputies of the Supreme Soviet of the Lithuanian SSR the mandate and the duty to restore the State of Lithuania and express the sovereign will of the Nation through this body, which, from 11 March 1990, 6 p.m., would be referred to as the Supreme Council of Lithuania. (shrink)

Criminal liability of legal entities was legitimized in the Republic of Lithuania eight years ago, and in the ruling of the Constitutional Court of 8 June 2009, a conclusive confirmation on its accordance with the Constitution was made. It should be noted that the extension of the concept of criminal offense subject has received considerable attention of Lithuanian scientists. It was obvious that this penal law novel would cause many problems and, surely, it has become a reason of many (...) doubts in the judicial practice. However, despite the fact that a fairly broad scientific analysis of the topic under consideration has been made, none of the Lithuanian authors has ever addressed the issue regarding the sources of the criminal liability of legal entities. (shrink)

The 6th of February 2005 marks the deadline of transposition of the EU Council Directive No. 2003/9/EC (Reception Conditions‘ Directive) into national legislation. This article is the second in a series of articles on transposition of the European Union Asylum Directives in Lithuania and remaining concerns. It analyses the transposition of the Reception Conditions Directive in the country, the impact of the directive‘s provisions on the development of the Lithuanian asylum law and draws attention to the remaining concerns in (...) relation to implementation of this directive in Lithuania. The authors illustrate the remaining concerns with practical and live examples/stories from Lithuania. (shrink)

Recognition of the status of family in the Constitution of the Republic of Lithuania mandates the state authorities to care and provide for the family, to ensure the family members’ constitutional rights, and to ensure respect for family life. Such duties fall on both, the legislative and executive authorities. However, the enforcement of constitutional imperatives is not straightforward. One reason for this is that the Constitution does not contain any legal definition of ‘family’ or ‘family members’. Nor does the jurisprudence (...) of the Constitutional Court of the Republic of Lithuania reveal the content of these notions. This, in turn, allows for various interpretations as to the scope of duties of state authorities and state attitude towards the family in general. In this context, the article aims to present approaches to the legal concept of family in Lithuanian legal doctrine, positive law and court practice. First, the article analyses the constitutional background of the concept of family and presents an overview of the ongoing political debate concerning this concept. Second, we analyse Lithuanian legal doctrine, scanty as it may be on this issue. Third, we examine the legislative specifics and the case law developed by the country’s highest judicial bodies with regard to the legal definition of ‘family’ and ‘family members’ in order to assess their impact on the state family policy in general. (shrink)

The present article analyses the qualitative and quantitative parameters of the execution of foreign policy in the Constitution of the Republic of Lithuania. It should be noted that the matters of foreign policy were on the brink of constitutional regulation for a long time. The powers of institutions of the state in the field of foreign relations were established laconically by the Constitutions of first and second “waves” of establishment of constitutionalism. It was argued that the choices of decisions and (...) the execution of foreign policy were determined by political reasons and the law could only fix the results of that policy. That is why these constitutions should be seen as establishing quantitative characteristics of action of the state institutions in the field of foreign policy. As a result of the changes in the concept of the Constitution and the general recognition of the relevance of constitutional regulation from the middle of the twentieth century the constitutional acts began to define not only the powers of certain state institutions in the field of the foreign policy but also the objectives and principles of this policy. These objectives and principles are qualitative parameters of the action of state institutions, which are mandatory constitutional requirements to all subjects engaged in foreign policy. From a qualitative standpoint, the powers of the state institutions can be exercised only by taking the constitutional objectives into account and by respecting the Constitution. The Constitution establishing both qualitative and quantitative characteristics of the execution of foreign policy becomes an actual basis of this policy. It is unlawful to execute foreign policy without complying with its objectives and constitutional principles. The institutions of constitutional review have the powers to determine the constitutionality of legal acts related to the execution of foreign policy. Constitutional regulations previous to the Constitution of the Republic of Lithuania of 1992 only defined the powers of state institutions, i.e. the quantitative parameters of their action. The Lithuanian Constitution of 1992 also established the constitutional objectives and principles of foreign policy. This area of constitutional regulation has been enhanced by the participation of the Republic of Lithuania in the European Union. The author suggests analysing this matter as an autonomous constitutional principle and not only as a case of participation in international organisations or an integral element of the principle of geopolitical orientation. Constitutional objectives and principles of foreign policy, as well as the other provisions of the Constitution regarding the exercise of foreign policy, are interpreted in constitutional jurisprudence. In cases concerning the constitutionality of international treaties, laws and other legislative acts directly related to the exercise of foreign policy, the Constitutional Court reveals the content and meaning of the qualitative and quantitative constitutional parameters of foreign policy. Despite the fragmented nature of the case law one can see the precise contours of the foreign policy system. (shrink)

Imposition of sanctions for violations of competition law rules is an important instrument of the European Union (EU) and Lithuanian competition enforcement authorities and is an inevitable part of the EU and Lithuanian competition law policy. The fining policy of the Lithuanian Competition Council for breaches of the Lithuanian and EU competition rules has recently been changed by the new 2012 Government resolution and has been aligned with the 2006 Commission Guidelines on the method of setting (...) fines. The new Lithuanian fining rules set exactly the same basic principles for setting the amount of fines and are very similar to the Commission’s Guidelines, however some peculiarities may and shall be distinguished. The new Lithuanian fining rules in some aspects are even stricter than the EU fining rules established in the Commission’s Guidelines. The aim of the article is to analyse the main changes in the Competition Council’s fining policy and identify the discrepancies in national and EU fining rules, analyse advantages and disadvantages of the new fining policy. (shrink)

The principle of solidarity is one of the fundamental legal principles applied in the field of health care regulation. This article analyses EU and Lithuanian legal acts, judicial practice, the doctrine of law and foreign scientific resources in order to reveal the content of solidarity principle and to discuss its role in the legal regulation of health care both at EU and national levels. The article is divided into three parts. The first part of the paper examines the correlation (...) between the right to health established in the EU Charter of Fundamental Rights (the Charter) and the principle of solidarity as the fundamental value upon which the EU is ‘founded’ and which it seeks to ‘preserve and develop’, as the preamble to the Charter states. It is noticed that the principle of solidarity is one of the principles which characterize the European law on social protection. In the summary of the findings of the article, the author states that this principle can be considered as a tool to achieve a greater social cohesion within the EU Member States in defining and implementing all policies and activities in order to ensure a high level of human physical, mental and social health protection through, first of all, a reduction of health care inequalities. For that it is necessary to tackle the factors which determine health care inequalities among the EU Member States. (shrink)

The author tries to explore several new amendments to the penal code of Lithuania, made by the Law on 2 December 2010. The first amendment concerns article 72 of the Penal code of Lithuania (confiscation of property). Prior to the year 2003, confiscation of property implied the right of the court to confiscate any property in possession of the sentenced person. However the Penal code of 2003 set up a new concept of confiscation: just proceeds of the crime or objects (...) intended to be used in committing a crime should be confiscated. However practice was very poor. New law aimed at boosting practice of confiscation, particularly from third persons, to whom usually the offender transfers property. Previous wording of the law provided for that the property should be confiscated from the third person just in case the person knew or could know that the property that he possesses is from a crime. The law of 2010 added new alternative conditions. (shrink)

The author of the article analyzes the constitutional doctrine of the dismissal of a judge from office upon the expiration of the term of powers. The author discusses the guarantees of the independence of courts and judges, one of which is the guarantee of the inviolability of the length of powers of judges. The previously valid Law on Courts used to provide that the President of the Republic could appoint a person as a judge of a local court when such (...) an appointment is made for the first time, for a five-year term, and that upon the expiration of the five-year term, the President of the Republic could appoint such a person as a judge of a local court without examination or selection until the person reaches the age of 65. Under the Law on Courts valid at present, judges of all courts are appointed at once for the term until they reach 65 years of age. It is asserted in the article that the Constitution of the Republic of Lithuania has not established the right of a person, who was for the first time appointed as a judge of a local court for a five-year term, to be appointed as a judge until he reaches 65 years of age. (shrink)

Regulation and clinical practices regarding end of human life care differ among the nations and countries. These differences reflect the history of the development of state health systems, different societal values, and different understandings of dignity and what it means to protect or respect dignity. The result is variation in the ethical, legal, and practical approaches to end-of-life issues. The article analyzes the diversity of strategies to strengthen dignity at the end of life of terminally ill patients and to highlight (...) the legal preconditions and limitations for implementing these strategies in independent Lithuania, as a former state of the Soviet Union. It is based on the critical analysis of philosophical literature, legal national and international documents and scientific evidence related to the issue. The author argues that the legal system in Lithuania is not sufficient to ensure the patient’s dignity at the end of life and remains far behind other Western European countries. Legal regulations in Lithuania do not guarantee the right of the patient to express his or her will regarding the future treatment, including the refusal of resuscitation, do not regulate the termination of burdensome, non-viable and meaningless treatment that is undesired by the patient, and limit the accessibility of palliative care with its necessary quality and comfort. (shrink)

The article emphasizes the importance of the Charter of Local Self-Government to the Lithuanian national legal system. Lithuania has ratified the Charter, not only acknowledged, but also committed to implement its provisions. The Charter consists of 13 items representing the essence of local self-government, which sets the content and is the principal purpose of local public. The principles should be not only a declaratory move into the national legal system, but also recognized as a state’s obligation to follow them. (...) The article analyzes the content of the Charter principles, their incorporation level in the national legal system. During the study noted that between the executive and local authorities are the differences of interpreting and dysfunctions implemented a few principles of the Charter: subsidiary and decentralization, local government financial autonomy and the freedom of formation executive local bodies. (shrink)

The article describes the evolution of problems in the Lithuanian labour law and labour law science since the re-establishment of independence in 1990. Three periods of evolution are presented: the Soviet period (lasted until 1990), the transitional period (1990- 2004) and the period of the Labour Code (2003 and onwards). During the Soviet period, the Code of Labour Laws regulated employment relationship in strict detail as the main employer was the state itself. Good reflections of that period can be (...) pointed out: active (but forced) collective bargaining, single tariff system that implemented equal treatment in the field of remuneration for work and fluent performance of enforcement of labour laws (legal clarity). During the transitional period, new labour laws were introduced and tuned-up with international labour standards (ILO), but in general there were no essential changes in practice. During all that period, the Lithuanian Labour Code was drafted and came in force in 2003. The period of the new Labour Code started together with the European integration and had to bring new trends of the European labour market into Lithuanian practice. The government and academics brought few initiatives for the liberalisation of labour laws but most of them were stuck in the stage of consulting with social partners (Tripartite Council). Nevertheless, 22 years after the collapse of command economy labour laws incompatible with free labour market still dominate. It is obvious that the Lithuanian Labour Code is outdated and needs general reconstruction. Scientific researches and the EU Council recommendations call for the introduction of flexibility, implementation of flexicurity aiming for full integration into the single European labour market. Some strict labour code rules are prevented from functioning in practice. The courts are forced to derogate from disproportionate and improper articles of the Labour Code. The author brings some of the existing problems of labour law into light and proposes their possible solutions. The existing crisis of labour law could be solved by drafting a new Labour Code with the help of academic researchers and by introducing it directly to the Parliament for adoption. (shrink)

Special “flexicurity” (English compound from “flexibility” and “security”) term has been used since the middle of the 1990’s. Most authors think that this phenomenon should be related to the success of Denmark and Netherlands, where after the enactment of appropriate acts (for example, “The Flexibility and Security Act” of the Netherlands and Act on the Distribution of Workers by Agents) and the operation of labor unions, the unemployment level was reduced significantly. However, as T. Wilthagen and F. Tros state, “flexicurity” (...) is the first and most important concept/strategy in the employment policy as such and it has been applied in most of the states. Until 2006 this term has been discussed basically only among narrow academic layers. Nowadays, this term is included in the European Agenda, since, in 2006-2007 “flexicurity” became a fundamental element in the Europe-wide debates, first of all on employment policy and on social and economic policy overall. However, as a result of absence of corresponding conditions, the transition of the experience of Northern countries to other states was impossible. For example, there were no active labour unions, beneficial tax policy and etc. (shrink)

This article analyzes the judicial framework of the takeover bid regulation in Lithuania, identifies the obstacles to the more effective regulation and considers possible solutions. As laid down in the Directive 2004/25/EC of the European Parliament and the Council as well as in the Law on Securities of the Republic of Lithuania, if a natural or legal person acquires a specified percentage of voting rights in the company (the issuer), which gives him a certain degree of control of the company, (...) this person must announce and implement a mandatory takeover bid to protect the minority shareholder rights. The regulation process of takeover bids in Lithuania, however, encounters several obstacles in aiming to increase the protection of minority shareholders. The authors claim that the main problems preventing a more efficient takeover regulation are first, issues related to the counting rules of the voting rights and second, the lengthy process of implementing mandatory takeover bids (the implementation process could last up to six years). Finally, the definition of a fair price of the security presents another obstacle to a more efficient takeover regulation as well. The matter of a fair and reasonable price is the most important in emerging markets, such as Lithuania. (shrink)

Out-of-court proceedings or alternative dispute resolution (ADR) is a peaceful, voluntary alternative method for settling disputes without litigation in the court. ADR institutions usually use a third party to help the consumer and the trader reach a solution. The main purpose of this article is to share the main insights and experience about the out-of-court proceedings in various countries and present main trends of ADR development. First of all, in this article, ADR is presented and its main advantages or disadvantages, (...) main reasons of its origin are outlined. For example, ADR institutions are indeed a low-cost and quick alternative for consumers to settle disputes with businesses. These are the main reasons why ADR originated and developed so fast in the United States of America. Secondly, it is important to analyse various definitions used to describe ADR and its characteristics, because it is a very complicated and complex phenomenon. ADR and the principle of legal accessibility are also very closely related issues which are deeply analysed in this article. (shrink)

In this article the influence of scientific attitudes of Prof. Mykolas Romeris upon modern administrative justice of Lithuania is investigated by historic and comparative aspects. In the first part of article the Professor’s ideas, stated in the fundamental monograph “Administrative Court”, published in Kaunas, in 1928, about the foundation of the Administrative court are reviewed. Here are also pointed out Prof. M. Romeris’ principal,alternative and critical notes concerning the draft of the Law of Administrative Court, made by the Seimas (Parliament) (...) Committee on April 1940. As due to historical circumstances of that time the Law was not passed, in the second part of this article the author proposes the analysis of which ideas of Prof. M. Romeris and to what ambit they were reflected in the Republic of Lithuania Law on the Proceedings of Administrative Cases enacted in 1999, and improved in 2000. The conclusion is made that in this case almost all principle attitudes of Prof. M. Romeris on the organizing the Administrative court and its competence were realized in this Law. It is also stated that the Law mentioned also embedded some other norms, e.g. the possibility to settle a dispute in a pretrial way in Administrative Disputes Commissions. (shrink)

The comparative historical method provided the possibility to perform a retrospective analysis of parole release, learn about the origin of the institution and the trends of its development within the historical dialectics, evaluate its social importance and benefits, distinguish its positive and negative characteristics, and forecast the model that would be more acceptable in Lithuania today. In order to create a versatile standpoint regarding the variety of conceptions (models) of this institution, the author analyzes the evolution of release on parole, (...) because without an analysis of the historic world outlook it would be impossible to perceive the essence of the modern model of release on parole, to disclose its content, to identify the factors influencing its formation and foresee the perspectives of its further evolution. (shrink)

This article, while disclosing the conception of rights, their relation to law and their nature, presents the constructive criticism and motivated support of legal personalism, i. e. the original theory presented by prof. A. Vaišvila. This article presents the criticism of terms “positive law” and “natural law”. It emphasizes that the term “natural rights,” while historically very important and common, is rarely used of late. The primary reason for its fall from favor seems to be that it was used in (...) too many different ways and therefore ceased to be useful. So, the author, while defending the indispensable relation between law and morals, offers the term “good morals” instead of “natural law” and also offers to refuse the usage of terms “positive law” and “natural law”. This article represents the view that morality is the source of law. The author accepts a position asserting that the terms “human rights”, “natural rights” and “fundamental moral rights” are synonymous. However, some institutional rights (for example, social rights) flow from statutes, but not morals. (shrink)

The article discusses the possible consequences that can be faced by a Member State of the European Union if its national court does not comply with the obligation to make a reference for a preliminary ruling to the Court of Justice. The TFEU does not specify any sanctions applicable to a state when its national court disregards its obligation under Article 267 TFEU. Therefore, the analysis focuses on the practice of the Court of Justice and its interpretation by scholars. At (...) the outset, the author analyses whether refraining from making a reference for a preliminary ruling can lead to the duty to pay damages to an individual. Taking into account the criteria of a sufficiently serious breach formulated in the Köbler case, the author comes to the conclusion that the infringement of the obligation to make a reference for a preliminary ruling is one of the most important criteria in assessing whether a Member State has to pay damages for any loss suffered by an individual, but the infringement itself is not sufficient to make a state liable. (shrink)

The paper deals with the issue of tying (as well as bundling) practices which are applied by dominant undertakings and which, under certain circumstances, can be considered as abuses of a dominant position. The authors describe the concept of tying, indicate its types, and reveal its economic aspects, since all these issues have a certain impact on the legal assessment of tying practices. The authors conclude that the European Commission (the Commission) and the European Community (EC) courts have usually been (...) too formalistic and unreasonably hostile to tying practices and have not paid due attention to the impact of tying on competition and the beneficial features of tying. Thus certain cases have frequently and rather easily been treated as abuses of a dominant position. A more realistic and effect-based approach was taken by the Commission and the courts in the Microsoft case, where certain criteria for the assessment of tying were formulated. Still, the Microsoft case reflects a rather strict attitude towards tying practices, especially in technological tie-ins. (shrink)

The article describes the main publications of emigrant press during the period of 1945-1990. These publications reflect a significant contribution to the academic research of the constitutional development problematics of an independent Republic of Lithuania in 1918-1940, made by the emigrants who escaped Soviet aggression by going to the West. Among emigrants these topics were mostly analysed and described at the time when any possibilities of objective academic research in Lithuania were widely limited by Soviet ideology and politics. Exceptional attention (...) of emigrant authors was attracted by the democratic constitutional structure of Lithuania, established by the Constituent Assembly. The article describes the academic research made by emigrants on the main constitutional acts established by the Constituent Assembly, such as the resolution of the 15th of May, 1920, ascertaining the fact of reconstructing the independence of the state of Lithuania, as well as the Constitution of Lithuania of August the 1st, 1922. (shrink)

The author of the article describes globalization processes as inevitable historic and objective phenomena, the driving force of society’s development and progress. It is emphasized that these processes result in harmful effects of global character on the environment and society. In the opinion of the author, one of the most important negative effects of globalization is the increase in environmental pollution which in turn results in the change of climate, extreme ecological situations, and threats to the natural environment and human (...) health. The author argues that one of the main legal instruments for limiting and neutralizing the harmful effect of pollution on the environment and society is the integrated system of environmental legal regulation. The author considers the safeguarding of the environmental objects and resources (climate atmosphere, soil and subsoil, water, air, biologic diversity, etc.) as the object of the legal regulation of the integrated environmental protection. What is more, the author of the article analyzes certain problematic aspects related to climate change and integrated prevention and control of climate pollution which are regulated under the new integrated institute of environmental protection under the environmental protection law. The author compares the provisions of international agreements, the European Union and Lithuanian legislation regarding these relations and concludes that Lithuania has not fully met its international obligations in this field. (shrink)

The author of the article explores the views of Lithuanian–American thinker Thomas Kasulis on the interaction between emotions and ethical principles. This interaction is revealed in the contexts of the concepts of intimacy and integrity analysed by the philosopher. Intimacy is perceived as a framework of sociocultural structures of society, which determine the behavioural patterns and choices of individuals. In the ethical sphere, Kasulis attributes responsibility to integrity, which he links in his comparative analysis to Western and Eastern philosophies. (...) Another philosophical concept, namely intimacy, is associated by the philosopher with relationships between people and values revealed in them. In communication, values are expressed not only through language but also through emotions. Kasulis particularly emphasizes sympathy, which is inherent in the cultural orientation of intimacy. For this reason, the article also analyses the nature of sympathy and its relationship to love, compassion, favour and trust. The article is based on the assumption that in the hermeneutics of the texts of comparative philosophy, it is possible to find both differences and similarities in the ideas of heterogeneous civilisations, and that the emotional-value vision emerging in these contexts makes it possible to look differently at cultural phenomena that appear in everyday life. (shrink)

The author investigates the necessity of fault as the prerequisite of contractual civil liability. The author makes the conclusion that Lithuanian law, following most of the countries belonging to the civil law tradition and contrary to the common law systems, as well as Vienna convention, UNIDROIT principles, PECL and DCFR, begins with the theory that fault is a requirement for contractual liability. Strict liability in Lithuanian law is the exception of this general rule. Nevertheless, the author argues that (...) the general rule is subject to important exceptions, and the practical importance of these exceptions is as great as the cases falling within the general rule. In case of no agreement of the parties or any provision of law regarding fault as the necessary prerequisite for contractual liability, in Lithuania, similar to France, the distinction between the obligations to produce a given result and the obligations to use reasonable care is essential: according to Article 6.200(4) of the Lithuanian Civil Code (hereinafter – the CC), a party in breach of an obligation to use best efforts is liable for fault. (shrink)

The article describes the problematic spots of the court system ordained by the temporary law during the inter-war period in Lithuania and the prolonged attempts of the authority to transform it into the permanent one. It demonstrates that there has been a constant involvement in this situation among the authority representatives and the institutions until the issue of the Judiciary Act in 1933. The new legislation has been prepared, even though not all of it has been implemented. The first legislation (...) on judiciary of an independent Lithuania was enacted in 1918 as the Temporary Act on Lithuanian Courts and their Operation. It acknowledged the weak spots such as the procedure for assigning peace judges, no provision for cassation, elimination of jury as well as no limitations of guarantees during assignment and dismissal of judges, etc. Current imperfections resulted from lack of knowledge and no possibility to have an election as well as the limited financial potential of the state. It has been intended to solve these problems in the near future. The legal regulation of the fundamental points on court organization and operation, that lacked in the Temporary Judiciary Act, has been supported by the provisions incorporated into the Constitution of Lithuania of 1922. The distinct laws have let the colegially operating courts to temporary incorporate the advocate under oath as a member of the judicial board. Also, considerably transcendent salaries of the court official workers as compared to other civil servants has been established. The bill ascertaining the court system and their operation has finally been drawn and hereafter for several years it has been refined by various legal institutions and experts. This situation ended with enactment of the new Judiciary Act in 1933. Although it retained the assignment of judges and finally eliminated the institution of the jury, it solved the majority of questions related to the court organization and operation that had not been regulated by law before. (shrink)

The authors of this article use systemic, comparative and historical methods to review the most representative legal systems – rench, English and German – and analyse how these legal systems deal with the effects of change in circumstances on the performance of a contract. The authors also discuss solutions adopted by scholar groups working on supranational contract law (soft law) instruments, namely, UNIDROIT Principles of International Commercial Contracts and Principles of European Contract Law, stressing that these sets of principles have (...) significantly affected Lithuanian contract law provisions on changed circumstances. The authors concisely evaluate the case law of the Supreme Court of Lithuania on the application of the provisions on change in circumstances and their effect on the performance of a contract. (shrink)

Directive 96/9/EC of the European Parliament and of the Council on the legal protection of databases of 11 March 1996, which was intended to protect the interests of the makers of databases, determined that databases could be protected by double rights: copyright and sui generis right. The article first of all analyses what persons are entitled to be acknowledged as holders of copyright and sui generis right in respect of a newly created database. As the issue of the owner of (...) copyright is not regulated by the 1996 Directive, this is determined by the application of national provisions. Pursuant to the Law on Copyright and Related Rights of the Republic of Lithuania, the owner of copyright may mean, depending on the situation, a natural person – the author of a database or a group of authors, the holder of the right to a collective work, or an employer. The analysis presented in the articleindicates that predominantly it is the author (authors) of a database who is held to be the owner of the copyright. Courts tend to interpret the rule concerning the transfer of copyright to the employer in a restrictive way; besides, in accordance with the specifics of the Lithuanian legal regulation, economic rights are transferred to the employer only for the period of 5 years. The category of collective work is of a subsidiary character and may be applied only in exclusive cases. Therefore, when a database is created upon the commission of another person, including the employer, the customer is expected to form a written agreement where the transfer of economic rights to the customer is clearly defined. (shrink)

The modern Lithuanian legal doctrine recognises that criminal liability is a last resort (ultima ratio) protecting the society from various law violations. This idea has got deep roots in criminology and is obviously based on the position of rational approach towards the state criminal policy. However, it is not clear whether it is of obligatory legal status to the legislature and the courts. This article attempts to present the idea of a last resort as a concept based on the (...) constitutional principles of the rule of law, justice, proportionality and rationality in the legislation and case law. The author concludes that the main precursors of the ultima ratio principle are the German legal doctrine of protection of legal goods (Rechtsgüterschutz) and Harm principle respected in the common law tradition, as well as the need for protection of human rights in the democratic world. These concepts raise the duty of the legislator to justify the act of criminalisation by legitimate purpose and to comply with certain constitutional limits of application of criminal law. The idea of criminal liability as a last resort is recognised both in the jurisprudence of the Constitutional Court (obiter dictum) and in the practice of the Supreme Court of Lithuania reasoning particular decisions in criminal cases, especially delimiting criminal and other types of legal liability. The author concludes that the fact of discrepancy of criminal law to ultima ratio test can be one of the arguments in support of its objection to the Constitution and even the European Convention on Human Rights and Fundamental Freedoms. At the same time, the author of the article has found that many norms of the Criminal Code are in conflict with the idea of a last resort. (shrink)

The article is based on the data of the 10th round of the European Social Survey (ESS) analysis and discusses the correlation between Lithuanian residents’ satisfaction with democracy and political participation, self-evaluation of political efficacy, social trust, trust in authorities and satisfaction with their performance, as well as sociodemographic variables. The article also analyses the dynamics of satisfaction with democracy in Lithuania, and this indicator is compared with the data of other countries that participated in the ESS. The analysis (...) was performed with a representative sample of the Lithuanian population, and the case of Lithuania was compared with representative population samples of other countries. The method of research is statistical analysis, Pearson’s r correlation coefficient was calculated. Statistically significant correlations were identified between the satisfaction with democracy and almost all analysed variables. The strongest positive statistically significant correlations between the satisfaction with democracy in Lithuania are with the satisfaction with the government and its performance and trust in authorities. (shrink)

[full article, abstract in English; abstract in Lithuanian] Fred Dretske motivates his denial of epistemic closure by way of the thought that the warrant for the premises of a valid argument need not transfer to the argument’s conclusion. The failure-of-transfer-of-warrant strategy has also been used by advocates of epistemic closure as a foil to Michael McKinsey’s argument against the compatibility of first person authority and semantic externalism, and also to illuminate, more generally, why certain valid arguments appear ill-suited for (...) the purpose of establishing their conclusions. This paper takes re-examines some of the central attempts to explain transmission-failure, and a central line of objection to the strategy from Begging-the-Question theorists. The ultimate goal of this paper is to promote a decidedly Dretskean explanation of the unpersuasiveness of the said arguments. (shrink)

The paper highlights the dependence of the level of organizational trust on work ethic and aims to show that development of trust in organizations can be stimulated by raising the level of work ethic with organizational practices. Based on the framework by Kanungo, R. N. and A. M. Jaeger, Management in Developing Countries, pp. 1-23), historical-cultural analysis of the Lithuanian context is carried out. The country is chosen as an example of a post-socialist context where work ethic and trust (...) in the society tended to be rather low. The authors discuss organizational practices, particularly the ones related to people management, which can facilitate development of work ethic, and thus, trust in organizations operating in a post-socialist context. The importance of a processual approach to the development of organizational trust and the ethical content of organizational practices, which are aimed at developing organizational trust is highlighted. Directions for further research are indicated. (shrink)

The history of the church, inter-confessional relations and religious policies of the state is one of the developing areas of today's historical studies. An increasing number of special historical researches, papers, articles devoted to these issues, covering different periods in the history of our country, were a proof to that. Such interest is well justified as Ukraine is a country with complex ethnical and confessional set-up. This calls for deep insight into the history of relations between different confessions in the (...) past. The article analyses specific features of the church policies of the Polish-Lithuanian Commonwealth during the four year parliament (Sejm) of 1788-1791, acts of law adopted in that period that set legal grounds for the status of the Orthodox Church in the state, and studies the interpretation of those events and documents by church historian V. Bednov. Special attention was paid to the analysis of the actions of the Polish authorities to be avoided in today's church policies or, alternatively, to be encouraged today to maintain public peace and inter-confessional dialogue in the country. In his work, V. Bednov described in details all clauses of the Resolution of the General Congregation held in Pinsk, which were later legitimised by the Polish parliament (1791) and confirmed in the special Sejm constitution. This document was intended to dramatically change the status of the Orthodox Church in the Polish-Lithuanian Commonwealth. Yet, time was lost, and prejudices that prevented the document from being adopted without limitations became one of the factors further resulting in the disappearance of the Polish-Lithuanian Commonwealth as an independent state after the second (1793) and third (1795) partitions. These prejudices did not help to resolve controversies between Catholic, Uniate and Orthodox Christians either. The work of V. Bednov analysing the above issues was highly praised by his contemporaries. Yet, the scholar never returned to this topic in his studies, which makes this area very promising for modern researchers. (shrink)

Halakhic Man--originally published in Hebrew in 1944 and appearing for the first time in English translation--is considered to be Rabbi Soloveitchik's most important statement. A unique, almost unclassifiable work, its pages include a brilliant exposition of Mitnaggedism, of Lithuanian religiosity, with its emphasis on Talmudism; a profound excursion into religious psychology and phenomenology; a pioneering attempt at a philosophy of Halakhah; a stringent critique of mysticism and romantic religion--all held together by the force of the author's highly personal vision. (...) Exuding intellectual sophistication and touching upon issues fundamental to religious life, Rabbi Soloveitchik's exploration, in sum, seeks to explain the inner world of the Talmudist--or as he is referred to typologically, halakhic man--in terms drawn from Western culture. This book brings to the English-reading world a significant work by one of the most profound Jewish thinkers of this century. (shrink)

The company's profit and profitability are one of the most important criteria for assessing the enterprise performance. According to the achieved results of profit and profitability, it is being judged what benefits may receive different interest groups of the company - owners, employees, investors and creditors. All business enterprises are concerned to increase the profitability. The article analyses the theoretical aspects of profit and profitability assessment. The analysis of scientific literature of foreign and Lithuanian authors suggests that the company's (...) profitability analysis helps to determine the financial aspects of the company's financial performance, to assess the current situation in order to make appropriate management decisions. The company's profit and profitability are one of the most important criteria for assessing the enterprise performance. According to the achieved results of profit and profitability, it is being judged what benefits may receive different interest groups of the company - owners, employees, investors and creditors. All business enterprises are concerned to increase the profitability. The article analyses the theoretical aspects of profit and profitability assessmentWhile assessing company’s activity efficiency in various aspects, its competitiveness and growth possibilities, it is not enough to analyse absolute profit indices and based on them to take particular decisions, because an absolute profit index does not reflect company’s real financial situation. More comprehensive information is obtained by calculating relative profitability indices and comparing them with profitability. Besides, profitability indices in a structured form provide to company’s managers the most important and most precise information in form of indicators based on which there is a possibility to assess company’s financial situation and to forecast company’s future financial situation, foresee activity’s success and failures. Therefore, even a profitable company needs a constant analysis of these indices, their dynamics, affecting factors, because due to affecting factors the company’s managers can assess and forecast profitability indices. In search for the ways how to increase a profit and profitability indices, it is very relevant for the company’s managers to assess introduction of new services to a market, because new implemented services reach a success, the company’s managers can take decisions, determining dynamics of development of profitability indices, and direct company’s management towards profitable direction.The article analyses the theoretical aspects of profit and profitability assessment. The analysis of scientific literature of foreign and Lithuanian authors suggests that the company's profitability analysis helps to determine the financial aspects of the company's financial performance, to assess the current situation in order to make appropriate management decisions. (shrink)

This article discusses the poem written by Joseph Brodsky shortly after the proclamation of Ukrainian independence in the early 1990s. It compares this poem with other pieces by the same author that deal with the paradigm of “independence vs. imperial unity.” These poems present a difference, which is striking at first glance: Brodsky welcomes Lithuanian independence, while simultaneously denying the same rights to Ukrainians and Aztecs. As for Afghanis … his disdain is even more palpable. The proposed explanation is (...) the concept of “Cultural Empire,” which the poet considers to be the ultimate good. This article briefly mentions the general problem of de-imperializing classical Russian literature in the context of post-colonial studies. (shrink)

Relying on the systematic, logical, and analytical methods, national legislation and some internationally accepted guidelines, as well as on the research conducted by the Lithuanian scientists and law practitioners, this article consistently and comprehensively deals with the problems arising in the areas of interpretation and application of tax law. The article examines the relevant tax concepts, studies the tax law system, deals with the relevant issues arising in the field of application of legal regulations on taxation, and provides a (...) particularly detailed analysis of court jurisprudence within the context of the relationship between tax and law. On the basis of the analysis conducted, it was established that the basis for the Lithuanian tax law system consists of the Constitution of the Republic of Lithuania; the Law on Tax Administration; tax laws that lay down specific taxes and of by-laws adopted on their basis; national legal regulations that contain a consideration attribute and set mandatory payments to the State budget; the Law on Customs; ratified international agreements; the European Union legal regulations to the extent they are related to the duties, import excise duty, and value added tax; and the European Union directives in respect of direct and indirect taxes and the extent to which they are related to tax administration. When relationships in public law are directly regulated by the relevant public law regulations, it is not private law regulations, but the corresponding public law regulations that must be applied. In order to determine the need for tax authorities to rely on the regulations of the Civil Code, it is necessary to state the necessity to assess legal relationships from the point of view of private law or to identify a gap in legal regulation of public law due to which the norms of the Civil Code are subsidiary. Prior to establishing the tax base, the tax authority does not have to rebut transactions in civil procedure. The taxpayer’s obligation to fulfil tax liabilities that are properly prescribed by tax laws is not called into question by unlawful acts of other persons which constitute grounds for their civil (non-contractual) liability for the damages caused. The factual circumstances of tax relations established in the court cases heard in criminal and/or administrative procedures, do not need to be proved again – they are relied on in the course of tax inspections or when hearing tax disputes. The principle of equality of taxpayers requires tax administrators to give equal treatment to the facts with respect to all participants regarding the same tax relationship and obliges taxpayers to pay taxes honestly, because non-payment of taxes is a breach of public interest and therefore of this principle. In accordance with the principle of general applicability and equality, each taxpayer has an obligation to pay taxes as prescribed in tax legislation observing the calculation and payment procedures stipulated in the tax legal regulations, whereas the amount payable as established by the tax administrator shall be regarded as well-founded to the extent that it does not exceed the criterion of equality and reasonableness. The principle of clarity of taxation requires the tax administrator to adopt clear and comprehensive decisions with respect to the taxpayer and therefore to ensure their rights and legitimate interests. In the calculation of tax by applying the principle of primacy of content over form, it is necessary to establish that a transaction, an economic deal or indeed any group thereof has been concluded for the purpose of obtaining tax benefits. (shrink)

[full article, abstract in English; abstract in Lithuanian] Modern revolution as the beginning of founding a new political order has to confront the vicious circle inhered in all beginnings: in so far as it is the beginning, where does its principle come from? Or, if there is no principle, how could the beginning establish one? Set in the context of modern political experience, the aporia is equal to the problem of how modern politics to be self-grounded or how to (...) reestablish political authority in modernity? By an exploration into the relevant writings of Hannah Arendt, the article tries to investigate the vicious circle of beginning and principle in the political realm, and to point out that Arendt has told a story about the mutual generating of beginning and principle, turning the so-called vicious circle into a hermeneutic circle, in which those implicit principles become explicit through the performance of founding actions. (shrink)