The article analyzes the intentions of the legislator when adopting the new Code of Civil Procedure, the expected changes in the role of a judge, as well as the judicial practice concerning the civil procedure. Following the Lithuanian and international practice, the author tries to predict some aspects of the adaptation of certain novelties in the judicial practice. The publication tries to draw the attention of the reader to certain aspects of the Code of Civil Procedure, passed in 2002, which are important for the proper explanation and application of its provisions in the practice of the courts. The article raises and searches for an answer to such questions, as whether the new legal instruments, set in the Code of Civil Procedure, will have a positive effect on the course, the length and the effectiveness of the civil procedure.
The article analyzes the importance of judicial precedents and interpretation and application of law in the practice of Lithuanian courts. It discusses what kind of model of judicial precedent, as a source of law, is currently institutionalized in the legal system of Lithuania, and what changes should occur as a result of the principle of horizontal and vertical judicial precedent, introduced by Article 33 of the Law on Courts after the decision of the Constitutional Court of the Republic of Lithuania of 28 March 2006. The article argues that it is necessary to maintain a distinction between bindingness of court decisions in the countries of common law and the importance of uniform court practice formation in the countries of civil law. Therefore, though judicial precedent de jure is considered as a source of law in Lithuania, under current circumstances the establishment of horizontal and vertical model of precedent cannot be regarded as corresponding to Lithuanian legal traditions. In view of the authors, the establishment of this model needs a careful consideration, based on comprehensible and detailed methodology of identification of a judicial precedent as well as its application in later cases, and a thorough analysis of the changing role of a judge in a democratic society in order to maintain a proper balance between legal stability and the development of law and the principles of court independence and confidence in law as well as to ensure that legitimate expectations of the parties are not violated. ; Straipsnyje analizuojama teismų sprendimų ir juose pateiktų teisės aiškinimo ir taikymo taisyklių reikšmė Lietuvos teismų praktikoje bei analizuojama teismų praktikos koregavimo problema. Temos aktualumą lemia pastarųjų dešimtmečių polemika Vakarų Europos šalyse apie dviejų teisinių sistemų – bendrosios ir kontinentinės teisės šalių – konvergenciją ne tik atskirose teisės šakose, bet ir teismų praktikos reikšmės didėjimo tendencija kontinentinės teisinės sistemos šalyse bei stare decisis doktrinos liberalėjimas bendrosios teisinės sistemos šalyse. Lietuvos Respublikos Konstituciniam Teismui pasisakius dėl teismus saistančios horizontalios ir vertikalios teismų precedentų galios bei šį principą įtvirtinus Lietuvos Respublikos Teismų įstatymo 33 str. Lietuvoje tapo aktualus klausimas dėl teismų precedentų imperatyvaus pobūdžio ir dėl to, ar precedento privalomumo įtvirtinimas įstatymu reiškia stare decisis doktrinos, būdingos bendrosios teisinės sistemos šalims, recepciją Lietuvoje ir kokia yra imperatyvo, jei laikysime tai imperatyvu, vadovautis teismų sprendimais, priimtais ankstesnėse bylose, reikšmė siekiant formuoti vienodą ir prognozuojamą teisės taikymo bei aiškinimo praktiką Lietuvoje. Straipsnyje siekiama pagrįsti, kad teismo sprendimų galia bendrosios teisinės tradicijos šalyse ir vienodos teismų praktikos formavimo reikšmė kontinentinės teisinės sistemos šalyse neturėtų būti sutapatinama, todėl, nors teismo precedentas Lietuvoje de jure pripažįstamas teisės šaltiniu, horizontalaus ir vertikalaus teismo sprendimo veikimo modelio įtvirtinimas pagal esamą situaciją negali būti laikomas kaip atitinkantis Lietuvos teisines tradicijas. Autorių teigimu, dar tik besiformuojančioje Lietuvos teisinėje sistemoje vieninga teismų praktika gali būti užtikrinta teismų sistemos autoriteto stiprinimu bei pačios teismų sprendimų priėmimo, motyvavimo ir skelbimo tvarkos pasikeitimu bei realiu tokios tvarkos įgyvendinimu. Stare decisis modelio įtvirtinimas Lietuvoje reikalingas atsargaus požiūrio, kuris turi remtis aiškia ir detalia teismo precedento identifikavimo, jo taikymo vėlesnėse bylose metodologija ir išsamia moksline besikeičiančio teisėjo vaidmens demokratinėje visuomenėje analize tam, kad siekiant vieningos ir prognozuojamos teismų praktikos formavimo būtų išlaikoma tinkama pusiausvyra tarp teisinio stabilumo ir teisės plėtojimo bei nebūtų pažeisti teismo nepriklausomumo ir pasitikėjimo teise bei šalių teisėtų lūkesčių principai. Straipsnyje taip pat atskleidžiami teismų praktikos koregavimo ypatumai, kuriuos lemia nacionalinės teisinės tradicijos bei teisėjo vaidmens procese ideologija. Autorių teigimu, Lietuvoje, kurioje nėra gilių tradicijų ir teisinė sistema yra nauja, neišvengiamai daroma klaidų, kurios negali būti toleruojamos, todėl kalbant apie teismo precedento laikymąsi ir būtinybę deramai argumentuoti teismų praktikos koregavimą, reikia analizuoti ne tik atvejus, kada praktiką keisti galima, bet ir atvejus, kada ją keisti iš tiesų yra būtina, nes tik taip prognozuojamos ir vieningos teismų praktikos kriterijus atitiks teisinės valstybės idėją.
Parties reach an amicable settlement of any disputes in Lithuania by the way of making an amicable settlement more and more often, so founding out of what legal power has the settlement in the civil procedure, what problems arise to the parties after reconciliation, what tendencies recently appear in the reconciliation process and what objects are pursued in reconciliation of the parties in the course of civil proceedings were actual. The author analyses reconciliation of the parties as an objective of the civil proceedings with the major tasks to reinstate both the legal and the social peace. The author also presents some samples of cases, which were resolved amicably. Objectives of the Master's final thesis were as follows: 1. Estimation of reconciliation of the parties as an objective of the civil proceedings; 2. Estimation of the legal and social meaning of reconciliation of the parties; 3. Exhaustive and well-rounded disclosure of the meaning of reconciliation of the parties; 4. Representing of the newly originated and actively developing alternative way of settlement of civil and commercial disputes- mediation. At the end of the thesis the author presents some conclusions and offers for improvement of reconciliation procedure regulation.
Parties reach an amicable settlement of any disputes in Lithuania by the way of making an amicable settlement more and more often, so founding out of what legal power has the settlement in the civil procedure, what problems arise to the parties after reconciliation, what tendencies recently appear in the reconciliation process and what objects are pursued in reconciliation of the parties in the course of civil proceedings were actual. The author analyses reconciliation of the parties as an objective of the civil proceedings with the major tasks to reinstate both the legal and the social peace. The author also presents some samples of cases, which were resolved amicably. Objectives of the Master's final thesis were as follows: 1. Estimation of reconciliation of the parties as an objective of the civil proceedings; 2. Estimation of the legal and social meaning of reconciliation of the parties; 3. Exhaustive and well-rounded disclosure of the meaning of reconciliation of the parties; 4. Representing of the newly originated and actively developing alternative way of settlement of civil and commercial disputes- mediation. At the end of the thesis the author presents some conclusions and offers for improvement of reconciliation procedure regulation.
The object of this master thesis is the analysis of purposes, content and the problematic aspects of the amendments June 21, 2012 adapted to the Code of Civil Procedure governing the settlement of disputes by courts of the first instance. In this work shall be amendments analysed, that came into force on October 1, 2012 those amendments, that shall come into force on January 1, 2013 shall only be described fragmentarily, in such cases where they are very closely related to the existing provisions. There are a lot of reformed legal rules that regulate different issues of the civil procedure. The necessity of the amendments is based on known problems of the civil procedure in Lithuania. The amendments of the year 2011 do not alter the essential principles of Code of Civil Procedure of the Republic of Lithuania, but search for "middle ground" between the recognized principles in such a way that they could best meet the interest and the needs of the public, of the groups and of specific individuals as well as any of the positive effect of amendments shall last for the long term. The aim is to simplify, speed up, rationalize and modernize the judicial process, reduce costs and use of public funds as well as to promote alternative settlement of disputes. It is essential that judges, lawyers and the parties correctly understand the amendments in their true sense. The object of this master thesis is analysed on basis of a complex of methods such as linguistic, comparative, systematic, historical and theological as well as the method of the intention of the legislator and the general principles of law. The Code of Civil Procedure is a systematic legal act, so the rules shall be interpreted at first on basis of the systematic method, in correlation with the Constitution and other legal acts, with legal doctrine of Lithuania, the general principles of law, international law and evolving case law. It is obvious that not everyone agrees that valid amendments of October 1, 2012 positively affect the future of the Lithuanian Civil Procedure. The discussion of whether the exception to one principle in favour of another is always proportional to the result, for example, are the sanctions for abusing party adequate and do not violate its procedural rights, or do limiting the number of preparatory documents not lead to an incorrect decision, or would the change of the rules of jurisdiction not strain the courts further and, if the right to apply for a court action to the court of higher instance will not damage the principle of judicial impartiality, or will be not abused or stamp duty concessions and exemptions from the costs and other related aspects. The answers shall be provided in the legal practice.
The object of this master thesis is the analysis of purposes, content and the problematic aspects of the amendments June 21, 2012 adapted to the Code of Civil Procedure governing the settlement of disputes by courts of the first instance. In this work shall be amendments analysed, that came into force on October 1, 2012 those amendments, that shall come into force on January 1, 2013 shall only be described fragmentarily, in such cases where they are very closely related to the existing provisions. There are a lot of reformed legal rules that regulate different issues of the civil procedure. The necessity of the amendments is based on known problems of the civil procedure in Lithuania. The amendments of the year 2011 do not alter the essential principles of Code of Civil Procedure of the Republic of Lithuania, but search for "middle ground" between the recognized principles in such a way that they could best meet the interest and the needs of the public, of the groups and of specific individuals as well as any of the positive effect of amendments shall last for the long term. The aim is to simplify, speed up, rationalize and modernize the judicial process, reduce costs and use of public funds as well as to promote alternative settlement of disputes. It is essential that judges, lawyers and the parties correctly understand the amendments in their true sense. The object of this master thesis is analysed on basis of a complex of methods such as linguistic, comparative, systematic, historical and theological as well as the method of the intention of the legislator and the general principles of law. The Code of Civil Procedure is a systematic legal act, so the rules shall be interpreted at first on basis of the systematic method, in correlation with the Constitution and other legal acts, with legal doctrine of Lithuania, the general principles of law, international law and evolving case law. It is obvious that not everyone agrees that valid amendments of October 1, 2012 positively affect the future of the Lithuanian Civil Procedure. The discussion of whether the exception to one principle in favour of another is always proportional to the result, for example, are the sanctions for abusing party adequate and do not violate its procedural rights, or do limiting the number of preparatory documents not lead to an incorrect decision, or would the change of the rules of jurisdiction not strain the courts further and, if the right to apply for a court action to the court of higher instance will not damage the principle of judicial impartiality, or will be not abused or stamp duty concessions and exemptions from the costs and other related aspects. The answers shall be provided in the legal practice.
In this article, the authors study potential of novelty of Lithuanian civil procedure as of 2015 – the group claim institute – to speed up Lithuanian civil process and some problems related to implementation of such potential.After evaluation of aims to implement group claim institute in Lithuanian civil procedure, the authors recognize that it is justifiable to indicate as a separate aim ensuring of more speedy resolution of mass claims. Nevertheless, practice of submission of group claims to Lithuanian courts is developing slowly. Therefore, currently it is not possible to perform empirical study to what extent the aim to speed up Lithuanian civil process by analysed type of claims is realised in reality.After analysis of different models of groups claims, the authors recognize that opt-out system may ensure better concentration and expedition of process, if compared to opt-in system, which is being implemented in Lithuania and in many other European states.As results of the survey several suggestions for improvement of Code of Civil Procedure of Lithuania are introduced, namely, to foresee mandatory aggregation of all group claims and individual claims of the same type and to define more concise and more reasonable correlation between group claims and individual claims examined under general rules of optional joinder of parties. ; Šiame straipsnyje autoriai tiria grupės ieškinio instituto potencialą spartinti Lietuvos civilinį procesą ir kai kurias jo įgyvendinimo problemas.
The creation of the European civil procedure rules could have started from the beginning of the European Economic Community, since the Article 220 of the Treaty of Rome (1958) established that Member States shall enter into negotiations with each other with the view to securing simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards. The first milestone in this area was the Brussels Convention, which entered into force in 1973 and successfully governed the area of recognition and enforcement of judgments across the European Union. The special feature of the Brussels Convention is the mechanism of enforcement, which was granted to it by the decision of the Member States to grant the power to interpret the Brussels Convention for the European Court of Justice. The Brussels Convention became the secondary EU legislation and it continued its existence as Brussels I regulation from 2001 onwards (with a new version issued in 2012). The competence of the European Economic Community countries to collaborate within the area of justice and security using international conventions as a tool became common in 1992, when the Treaty European Union came into force. However, this area of legislation became appealing only when the Treaty of Amsterdam came into force and enabled the primary and secondary legislation in the area of justice. After the Tampere conclusions were announced in 1999, the legislation in the civil procedure area became intensive. Meantime, all the legislation in the area of the European civil procedure has been based on the Article 81 of the Treaty of Functioning of the European Union and it can be described classifying it into the following four categories: yy Rules, governing the jurisdiction of the courts, as well as recognition and enforcement of court decisions in civil and commercial matters, as well as in parental matters. yy Civil procedure matters, which serve in preparation of civil cases, such as: service of judicial and extrajudicial documents, cooperation in the taking of evidence in civil or commercial matters. yy The creation of separate proceedings: Order for payment procedure, European Small Claims procedure, the European Enforcement Order as well as the European Account Preservation Order procedure. yy The unified regulation of certain legal institutes: insolvency proceedings, rules to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes as well as unified rules on certain aspects of mediation in civil and commercial matters. [.]
The creation of the European civil procedure rules could have started from the beginning of the European Economic Community, since the Article 220 of the Treaty of Rome (1958) established that Member States shall enter into negotiations with each other with the view to securing simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards. The first milestone in this area was the Brussels Convention, which entered into force in 1973 and successfully governed the area of recognition and enforcement of judgments across the European Union. The special feature of the Brussels Convention is the mechanism of enforcement, which was granted to it by the decision of the Member States to grant the power to interpret the Brussels Convention for the European Court of Justice. The Brussels Convention became the secondary EU legislation and it continued its existence as Brussels I regulation from 2001 onwards (with a new version issued in 2012). The competence of the European Economic Community countries to collaborate within the area of justice and security using international conventions as a tool became common in 1992, when the Treaty European Union came into force. However, this area of legislation became appealing only when the Treaty of Amsterdam came into force and enabled the primary and secondary legislation in the area of justice. After the Tampere conclusions were announced in 1999, the legislation in the civil procedure area became intensive. Meantime, all the legislation in the area of the European civil procedure has been based on the Article 81 of the Treaty of Functioning of the European Union and it can be described classifying it into the following four categories: yy Rules, governing the jurisdiction of the courts, as well as recognition and enforcement of court decisions in civil and commercial matters, as well as in parental matters. yy Civil procedure matters, which serve in preparation of civil cases, such as: service of judicial and extrajudicial documents, cooperation in the taking of evidence in civil or commercial matters. yy The creation of separate proceedings: Order for payment procedure, European Small Claims procedure, the European Enforcement Order as well as the European Account Preservation Order procedure. yy The unified regulation of certain legal institutes: insolvency proceedings, rules to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes as well as unified rules on certain aspects of mediation in civil and commercial matters. [.]
