Straipsnyje tyrinėjamos dvi akrasijos sampratos ir jų santykis su atsakomybės priskyrimu Douglaso Husako baudžiamosios atsakomybės teorijoje. Nuo Platono Protagoro laikų akrasijos problema filosofijoje glaudžiai siejama su moralinio žinojimo klausimu. Pasitelkiant Antikos bei krikščioniškajai etikai itin reikšmingus tekstus, taip pat šiuolaikinius akratiško elgesio tyrinėjimus, straipsnyje išryškinama kita – vidiniu konfliktu paremta akrasijos samprata. Husako teorijoje taikoma akrasijos samprata akcentuoja moralinį žinojimą-nežinojimą. Tačiau jos prielaidų šaltinis yra ne Antika, o šiuolaikiniai moralinės atsakomybės priskyrimo skeptikai, nors paties Husako teorija (...) nėra skeptinė. Darbe išryškinami esminiai Husako teorijos trūkumai. Šie trūkumai atsiremia į Husako akratiško veikėjo sampratą ir kaip tokiam veikėjui priskiriama atsakomybė. Jų nagrinėjimas leidžia parodyti vidiniu konfliktu grįstos akrasijos sampratos pranašumus konstruojant neskeptinę baudžiamosios atsakomybės teoriją. (shrink)

The article deals with the entrenchment of the institute of criminal liability of a legal person in the Lithuanian criminal law. Upon approval of the Criminal Code of the Republic of Lithuania (hereinafter also referred to as the CC) on 26 September 2000, the criminal liability of a legal person was provided almost in every fifth (at present—in every second) article of the Special Part of the CC. Although criminal liability has been increasingly applied to legal persons (e.g., in 2011, (...) if compared to 2005, almost three times as much punishments were imposed), however, almost 90 percent of the articles of the CC providing also for criminal liability of a legal person are “dead”. One doubt arises with regard to social legitimacy of such lawmaking and the quality thereof in the sense of juridical technique. (shrink)

This article focuses on the problem of criminal liability for unlawful engagement in economic activities, analyses the emergence and development of this norm in criminal law and the ways of its optimal explanation. Special attention is paid to the problem of identification of illegality of activities, based on specific tax and economic regulation. The study concludes that criminal liability must be limited to a violation of fundamental requirements for the legality of business, and does not include particular abuses occurring in (...) legal business. The author also deals with the criteria of delimitation of criminal and administrative liability for unlawful engagement in economic activities. Under Article 202(1) of the Criminal Code of the Republic of Lithuania, application of criminal liability is limited by two alternative conditions: either a person illegally undertakes activity in entrepreneurial way or on a large scale. According to the paper, the above-mentioned regulation lacks clarity and leads to the risk of unfounded prosecutions. The author gives practical examples, where on the basis of inexplicable criterion of an entrepreneurial way, criminal charges are filed in respect of petty economic activities. Such practice is incompatible with the purposes and principles of criminal law. The paper proposes to delete the criterion of an entrepreneurial way from the definition, leaving the possibility of criminal liability only in case of large scale illegal economic activity. The article also substantiates the conclusion that prohibited business activities provided for in Article 202(2) of the Criminal Code actually defies logical explanation and should be removed from the regulation. At the end of the article, the author offers a sample of optimal legal wording of unlawful engagement in economic activities in criminal law. (shrink)

Lietuvos, kaip ir kitų Europos valstybių, teisės aktai numato bendrovės visuotinio akcininkų susirinkimo sprendimų teisėtumo užtikrinimo priemonę – tokių sprendimų pripažinimo negaliojančiais institutą. Civiliniame kodekse išvardijami teisiniai šio instituto taikymo pagrindai. Kita vertus, visuotinio akcininkų susirinkimo sprendimų pripažinimo negaliojančiais pagrindų sistemos skirtingose valstybėse skiriasi. Šiame straipsnyje siekiama pateikti bendrą įstatymo numatytų bendrovės visuotinio akcininkų susirinkimo sprendimų pripažinimo negaliojančiais pagrindų Lietuvos teisėje apžvalgą, minėtų pagrindų sistemą lyginant su užsienio valstybių teisiniu reglamentavimu.

This article discusses the problematic aspects relating to the employee dismissal based on application of the disciplinary liability. It contains analysis of two grounds for termination of the employment contract without any previous notice: 1) imposing several disciplinary sanctions upon the employee in the course of twelve months, and 2) the employee has only one breach of labour discipline but a gross one. The article is based on legal acts and judgements of Judicial Assemblies of the Civil Division of the (...) Supreme Court of Lithuania and resolutions of the Senate of the Supreme Court of Lithuania in order to provide the legislative execution practice as well as reveal the problems in this field of labour law. (shrink)

Although the Refugee Convention 1951 generally provided that contracting states should recognise those who came within its definition as refugees, it did not prescribe how contracting states should determine this in order to enable them to balance this obligation with their national interests. However, evidence from the background and drafting of the Refugee Convention 1951 suggests that the provisions that a contracting states would implement in order to protect its interests would be commensurate with the human rights spirit of the (...) treaty. This implied that contracting states would act fairly in balancing the competing interests in devising status determination policies and would take into account decent considerations. But, from a theoretical viewpoint, it is arguable that some recent asylum determination policies have been based on the threats posed by asylum seekers. Asylum seekers have come to be blamed for contributing to the national issues that some contracting states face and as such, some contracting states have adopted draconian measures as a result. (shrink)

The article examines the problem of compensation for the value of lost opportunity at the pre-contractual stage. It has been determined that such measure of recovery depends on the nature of pre-contractual liability. However, although the Supreme Court of Lithuania recognizes the possibility for the aggrieved party of pre-contractual negotiations to recover the value of lost opportunity, the motivation of the Supreme Court’s decisions is too incoherent. Moreover, Lithuanian courts have not yet adopted any methods of awarding and calculation of (...) the damages. The conclusion of the analysis is that in cases of breach of the general obligation of good faith in pre-contractual negotiations, the Supreme Court of Lithuania allows the recovery of lost opportunity, i.e. awards delictual damages. The same motivation applies even in certain cases where there is a possibility of broadening the scope of pre-contractual liability by applying contractual damages. (shrink)

This article is divided into three sections. In the first and second, I examine Sartorio’s account of the causal structure of the famous Thirsty Traveler thought experiment. I argue that this account does not withstand critical scrutiny. In the third, I turn to a novel kind of moral luck that Sartorio uses the Thirsty Traveler to expose. I expand the scope of my argument to look also at other recently proposed categories of moral luck. I argue that these proposals are (...) overhasty. (shrink)

Due to its specificity, the legal institute of preliminary agreement poses a number of questions. This pre-contractual agreement is not yet a contract. Therefore, the form and scope of legal protection will not be the same as that guaranteed to contracting parties. However, the European legal systems would claim that the relationships between the parties during pre-contractual negotiations have to be regulated and protected by the law. The first part of this article deals with the legal nature of pre-contractual liability: (...) tort, contractual or sui generis. The question of determining the type of applicable civil liability for breach of a preliminary agreement still remains a matter under debate in the Lithuanian legal doctrine as well as in legal practice. Taking into account the specific interest that may be infringed and the fact that the aggrieved party cannot recover the expectations it had in profit of the sought contract, including the remedy of the right of performance, there is nosufficient reason to apply contractual legal regime for breach of the preliminary agreement either. Hence, the special nature of the pre-contractual phase merits special treatment. In the Lithuanian legal system, liability for breach of a preliminary agreement should therefore be qualified as a separate sui generis kind of liability. In fact, the biggest problem is the scope of damages recoverable under the preliminary agreement. As far as the tendencies of a legal doctrine and jurisprudence of Lithuania and other countries are concerned, the aggrieved party should be compensated not only the direct expenses incurred during the negotiations, but also the value of lost opportunity, which must be based on real, proven, unavoidable income or expenses. It is not possible to claim the profit which would have resulted had the main contract been concluded (the so-called expectation damages). Recent tendencies show that the Lithuanian courts are prone to make no distinction between the concept of the lost opportunity to conclude a transaction with a third party (as reliance damages) and lost profits as expectation damages. The reason for such an interpretation is the fact that the value of lost opportunity can be determined by applying the principle of price difference provided in Article 6.258(5) of the Lithuanian Civil Code, which is used for contractual liability. This principle should be applied in accordance with the Commentary on the UNIDROIT Principles of International Commercial Contracts and in the context of the nature of the preliminary agreement. Therefore, the aggrieved party may claim compensation for damages in the amount of difference between the price of the contract that has not been concluded with a third party and the price of the replacement contract. Such an interpretation reflects the compensatory function of the recovery of the value of the lost opportunity. (shrink)

The question of detention of asylum seekers is specific due to the special situation of detainees (persons who have experienced human rights violations and apply for asylum in receiving country) and due to peculiarities of detention itself (persons have not committed crimes, but come or stay illegally because they have been forced to do so by fleeing from human rights violations). Therefore, lately it raises many discussions at the European level. Sooner or later, discussions influence national laws, as after adopting (...) the EU directives their provisions must be properly transposed into national laws. This article describes the recent documents: the study in Lithuania, the UNHCR guidelines, the EU developments, the Lithuania judicial practice. The authors of the article discuss the latest amendments of the Law on the Legal Status of Aliens (entering into force on 1 February 2012) related to detention of asylum seekers after the transposition of the provisions of the Return Directive. The practice of the Supreme Administrative Court of Lithuania when applying the new detention-related provisions is also reviewed in the article. The authors do not agree with the position of the Supreme Administrative Court of Lithuania that the provisions of the Return Directive are applicable to asylum seekers. The authors pay attention to the case-law of the European Court of Justice, the preamble of the Return Directive and its legal relations with the EU asylum directives. At the end, the conclusions are drawn as to the way that the provisions of the Law on the Legal Status of Aliens should be interpreted in the light of the purposes and provisions of the European Union directives. In order to avoid contradictory practice and at the same time ensure the interests of public order in Lithuania, Article 113(7) of the Law on the Legal Status of Aliens could be applied. (shrink)

The object of this study is the legal framework for the sale or purchase of company shares when the goal of the transaction is the sale of a business. The impact of such transactions on Lithuanian economic development underlines the importance of this study. The recent wave of mergers and acquisitions in Lithuania is likely to substantially increase the number of related legal disputes as well. Legislation on the purchase and sale of company shares and the resulting transfer of business (...) has been enacted in Lithuania only recently. The regulation of such cases remains rather unclear, few cases have been brought to court, and the topic has been barely addressed by legal scholarship in Lithuania to date. It is unclear whether the fact that the real purpose of the transaction is not a simple reassignment of company shares, but business transfer, results in any differences in the interpretation and application of the law. An especially delicate question, raised in Lithuania and other European countries, is whether the buyer may submit a warranty claim to the seller regarding the business acquired. (shrink)

The proposed article provides an overview of European and North American states’ legislation, which regulates the procedure for pre-clinical research, clinical trials and state registration of medicinal products, as well as responsibility for its violation, analysis of the problems and prospects of adaptation of the national legislation to European legal space, particularly in the field of criminal and legal regulation of relations in the sphere of pre-clinical trials, clinical trials and state registration of medicine. The emphasis is put on the (...) matter that inclusion of Article 321-2 into the Criminal Code of Ukraine leads to a false concurrence with other provisions of the Code. The author proposes to introduce recent EU legislation (Acquis Communautaire) on legal regulation of clinical trials and circulation of medicine into the law of Ukraine, clarify terminology related to Fundamentals of Ukrainian Legislation on Health Protection and the Special Part of criminal law, introduce criminal liability for legal entities that will provide effective control over negative effects of research centers’ activity. It is suggested to develop legislative proposals to improve the provisions of the Criminal Code of Ukraine, which provide legal protection of relations arising in connection with pre-clinical research, clinical trials and state registration of medicinal products. (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)

In the West, the Estate Rights originated in the eleventh century, whereas in Lithuania they started to evolve only after the Wallachian Land Reform in 1557. The then state conventional rules and manners were gradually transformed into registered Country – seat rights. In the present rather concise paper an attempt has been made to present a picture of the development of Country – seat rights as a relatively independent law system and define its concept. The author has attempted to prove (...) that the rules of behaviour, introduced and observed in estates should be recognised as legal regulations for the following three reasons: (1) the publicly recognised exclusive Land property right and the right of the ownership of the people living on this land; (2) the rights were publicly registered in the Land, Castle (City) Law or Court books or in the books of the Tribunal. Thus they acquired official status; (3) the above-mentioned established estate rules were to be legally and obligatorily executed. Their realisation was guaranteed either with the help of the local power apparatus or, if needed, state compulsory measures could be applied. The Estate Rights in Lithuania in the sixteenth to nineteenth centuries comprised the following legal acts: (1) the act of inventory; (2) urban regulations and directions; (3) privileges granted to the owners by the rulers and special ordinances for the realisation of the given privileges; (4) the so-called “release papers/cards” (horty wolnosci) ; (5) the verdicts of the local Courts of Law; (6) the ownership of different objects on the estate ( the estate lands, mills, pubs, tar boiling pits, etc., including the people who could not act freely, rent treaties, foundations, wills with foundation forms legally included, by applying which the estates realised their constitutive cultural initiatives. The Estate Rights were defined as a system embracing the relations of obligatory conduct designed by the estate owner or his authorised institutions or officials. They were meant to maintain the order within the estate, to guarantee and realise the norms of different cultural initiatives as well. Being mostly ad hoc in their form, the Estate Regulations served both the private and public interest. The Estate Rights in the sixteenth to eighteenth centuries in Lithuania were practiced alongside with other existing legal systems, i.e. the Statute Law, Towns and Canon laws, etc. They all reflected the autonomous state of different law subjects and regulated their relations emerging within. At the same time, the estate rules emphasised their relationship with the Statute Law and importance of legality when formulating their own local regulations. The author presumes that the historical mission of the Estate Rules was more important than the Statute Law for the following two reasons: (1) the estate rules regulated the conduct of the majority of the population (in 1971, 64% of the population lived on estates) and (2) estate rules were carried into effect more consistently and accurately. It was guaranteed by a huge number of estate administration personnel who had the right to immediately apply the local force apparatus measures in respect of the violator. The Statute Law was applied to a rather limited layer of the population (the nobility amounted to only 5 or 6% of the country’s population) . Due to the widespread lawlessness of the nobility and the weak administrative power the State Law was seldom applied. Thanks to its daily labor and obedience, the majority of the population absorbed the destructive effect of the nobility on the state. (shrink)

The article deals with the concept of the court’s fault in the action for damages against a state suffered due to infringement of European Union law. The author searches for the right position of the criterion in the system of the conditions of state liability and discusses whether European Union law establishes a uniform standard of fault, or at least the guidance on the application of the criterion that would enable uniform national judicial practices concerning state liability for the infringements (...) attributable to the courts of last instance. The article also analyses national legal regulation and jurisprudence of several Member States such as France, Belgium and Italy, providing the definitions of different forms of fault and (or) examples of their practical implementation. (shrink)

Pasibaigus Šaltajam karui smarkiai išaugęs tarptautinių konfliktų skaičius bei identifikuotos naujos grėsmės paskatino tarptautines organizacijas, tokias kaip Jungtinių Tautų organizacija (toliau – JTO) ir Šiaurės Atlanto sutarties organizacija (toliau – NATO) peržiūrėti Šaltojo karo metu taikytą jėgos panaudojimo praktiką, poreikį ir priemones reaguoti į konfliktus. Tokiomis priemonėmis kaip tik ir tapo vadinamieji „mėlynieji šalmai“, kurie Jungtinių Tautų valstybių narių yra priskiriami Jungtinių Tautų Saugumo Tarybos sankcionuotoms operacijoms vykdyti. Nors priskirtos pajėgos vykdydamos tarptautines operacijas dėvi Jungtinių Tautų simboliką, tačiau jų pavaldumas (...) savo valstybei išlieka visą laiką. Analizuodami valstybių dalyvavimo tarptautinių organizacijų sankcionuotose tarptautinėse operacijose teisinius pagrindus, straipsnio autoriai per jėgos panaudojimo prizmę analizuoja Jungtinių Tautų Saugumo Tarybos ir apskritai tarptautinių organizacijų vaidmenį sankcionuojant jėgos panaudojimą pagal Jungtinių Tautų Chartijos nuostatas bei tarptautinių operacijų vykdymo raidą. Straipsnyje taip pat detaliai apžvelgiami siuntimo į tarptautines operacijas nacionaliniai teisiniai pagrindai ir procedūros bei Lietuvos Respublikos praktika. Šis straipsnis yra skirtas visiems besidominties tarptautinėmis operacijomis ir jų sankcionavimo nacionaliniais ir teisiniais pagrindais. Straipsnio struktūra susideda iš trijų dalių. Pirmojoje šio straipsnio dalyje yra nagrinėjamas jėgos panaudojimas pagal Jungtinių Tautų Chartijos nuostatas, antroje ‒ aptariami dalyvavimo Jungtinių Tautų Organizacijos ir Šiaurės Atlanto Sutarties Organizacijos vadovaujamose tarptautinėse operacijose raida ir teisiniai pagrindai, o paskutinėje dalyje yra nagrinėjamas nacionalinis siuntimo į tarptautines operacijas reglamentavimas. (shrink)

The present article is aimed at dealing with certain questions of compensation for damage, caused by the criminally insane person. Disposal of a civil action on compensation for damage, caused by the criminally insane person, in the criminal procedure is analyzed in the first part of the article. The subjects, who are responsible for compensating for damage, caused by the criminally insane person’s deed, are dealt with in the second part. Not only the respective rules of law, stated in the (...) Civil Code of the Republic of Lithuania and in the Criminal Process Code of the Republic of Lithuania, are systemically analyzed in the present article, but the court practice is considered from the aspect of the items, which are relevant to the theme under investigation, and is systematized. (shrink)

The article deals with the question whether a state might be held liable for the infringement of the European Convention on Human Rights if its national court of last instance fails to implement the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying on well-established (...) practice that an arbitrary decision not to refer a question for a preliminary ruling theoretically could infringe the right to a fair trial, the author analyses the practical application of the “arbitrariness rule” and discusses whether the European Court of Human Rights has established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer. (shrink)

Although the need of freedom is definite, the concept of individual freedom, while being interpreted with legal terms, causes not only theoretical, but also practical problems. The observed two extremes of freedom are defined as any human self-expression as well as the license, where the state power is generally attributed to disregard personal freedom. In this article the freedom of expression and state enforcement jurisdiction dichotomy are addressed by discussing positive and negative conceptions of freedom and the relationship between the (...) interpretations of political liberalism and Kant and Hegel‘s philosophies. This paper aims to prove that the positive liberty is the assumption of the negative liberty. The paper based on Hegel‘s philosophy shows that freedom is the characteristic of human nature to seek identity. It is also argued that human identity can take many forms and, therefore, a person has a number of inherent rights and liberties. It is human psycho-physical identity that provides the right to life and health care; human creative identity, providing the right to privacy and freedom of occupation; human moral identity, which provides the right of dignity, and the moral autonomy of person’s social and political identity, providing the political and social rights and freedoms. This article concludes that while a person uses the given rights with integrity and the state is limiting people’s arbitrariness, there is no conflict between the freedom and state violation. (shrink)

Criminal liability of legal entities was legitimised in the Republic of Lithuania nine 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 this penal law novelty (providing the extension of the concept of criminal offence subject) caused considerable debate among Lithuanian scientists. One of the most controversial issues of this penal law novelty are the exceptions listed in Article 20(5) (...) of the Criminal Code. (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)

Recently (2010–2011) new criminal legislation to combat illegal income and corruption was passed and publicly discussed in Lithuania. Within the list of the new legal measures, special attention should be paid to criminalisation of illicit enrichment, establishment of a model of extended property confiscation, reinforcement of responsibility for corruption-related offenses, a provision that not only property but also personal benefits may constitute a bribe. It can be seen from the explanatory letters attached to the draft laws and the political debate (...) that the new regulation is expected to achieve decisive breakthrough in the fight against corruption and illegal income. However, without any doubt as to the necessity to fight against those social evils, the author presents critical evaluation of the reform by applying the test of principles of criminal law, legal language and practical effectiveness. By making critical conclusions that the new criminal legislation deliberately lightens the prosecution’s goal of incrimination and the burden of proof, the author warns about the purposive instrumental nature of the new laws, which are balancing on the threshold of legitimacy. In the article the author reveals crucial shortcomings of the new legislation: in some aspects it lacks legal certainty, in other aspects it ignores the principles of guilt, presumption of innocence and proportionality as well as the conception of criminal law as a last resort (ultima ratio). As a result, the new legal means against illegal income and corruption leave space for applying inadequate repression beyond their intended purpose, in addition, they criminalise human conduct that is insufficiently dangerous and create preconditions for senseless criminal prosecutions and violation of human rights. (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)

Lithuania’s legislation, establishing criminal liability for illegal disposition of narcotic drugs and psychotropic substances, uses two different terms while identifying the subject matter for criminal deeds: “narcotic and psychotropic substances” and “plants, incorporated into the lists of controlled substances.” The legislation in article 269 of the Lithuanian criminal code explains that narcotic and psychotropic substances, indicated in the respective chapter of the Lithuanian criminal code, shall be those substances that are included in the lists of narcotic and psychotropic substances as (...) approved by the Ministry of Health of the Republic of Lithuania. Plants having narcotic drugs and psychotropic substances are not introduced into this definition although the exception of the coca bush is enumerated in the lists of controlled substances. This described present position brings in a certain intricacy when deciding when a perpetrator should be punished only for illegal cultivation of plants and when he should be punished also for other illegal acts with narcotic and psychotropic substances. (shrink)

Today, a rapidly spreading drug addiction is one of the most relevant problems in Lithuania. It is possible to state without reservation that it has become a threatening social phenomenon. Drug addiction is considered to be one of the national threats. Trafficking in narcotic and psychotropic substances is being conducted on an international level, destroying states’ economic and political welfare. The use of these substances has a negative impact on human mental and physical health, ruins human personality and produces other (...) negative effects. In the article bodies of criminal acts, namely, an object, a subject, an act, an entity, guilt and a purpose, set forth in Articles 259, 260 of the Criminal Code of the Republic of Lithuania, are analysed. (shrink)

It is important that from a wider scientific perspective the basics of the conceptual comprehension of impeachment entrenched in the 1992 Lithuanian Constitution be related not only to (a) the nine explicit provisions whereby impeachment relations are regulated directly (Item 5 of Article 63, Article 74, Paragraph 2 of Article 86, Item 5 of Article 88, the first sentence of Paragraph 1 of Article 89, Item 4 of Paragraph 3 of Article 105, Paragraph 3 of Article 107, Item 5 of (...) Article 108, Article 116), but also to (b) the general constitutional principles (especially, the principle of protection of the rights and freedoms of a person), as well as to (c) the precedents of preparation, arrangement, suspension or continuation of impeachment proceedings (in cases of A. Butkevičius, R. Paksas or L. Karalius) and to (d) comparative international aspects, which are perceived not only in the US Constitution, but also in the European Convention on Human Rights which is no longer compatible (and clashing as regards the issue of consequences of impeachment) with the former. According to the European Court of Human Rights (judgment of 6 January 2011 in the case Paksas v. Lithuania), the European Convention on Human Rights prohibits irreversible (termless) limitation (grounded on impeachment) of the passive electoral right to be a Member of Parliament. It is also important to perceive (three) abstract procedural grounds of application of this institute to a certain official—a gross violation of the Constitution, breach of the oath and in case it transpires that a crime has been committed (Article 74 of the Constitution), and the factual (“concrete actions”—see Item 4 of Paragraph 3 of Article 105) grounds qualified according to the former, while due to the factual grounds the “impeachment case” is instituted. The notion “impeachment case” used in Item 4 of Paragraph 3 of Article 105 of the Constitution deserves special scientific attention. This notion indirectly means that: (a) prior to the application to the Constitutional Court by the Seimas, an impeachment case is (must be) instituted, which in itself means that impeachment and initiation and consideration thereof are distinguished by peculiarity in substantive procedure; (b) the Constitutional Court neither institutes this case nor “takes it over” (considers it), but in “its own” case of constitutional justice verifies those factual and procedural grounds, which are necessary in “the other” (impeachment) case instituted in the Seimas. The essence of the institute of impeachment cannot be properly perceived in the constitutional notions of “impeachment”, “case”, “proceedings“, if these notions are assessed only in the explicit provisions of Article 74 of the Constitution, i.e. they are not related to the logic of substantive and procedural arrangement and “intertwining” of the three provisions of the Constitution (Article 74, Item 4 of Paragraph 3 of Article 105 and Paragraph 3 of Article 107) as well as to the purpose of these provisions. On the grounds of the said three provisions of the Constitution, it is possible to assume that the essence of the institute of impeachment lies in a specific official accusation (of violations of special law) against the officials who have acquired (or who hold) certain constitutional powers and of bringing such officials to constitutional liability under the procedure for specific parliamentary impeachment proceedings and constitutional justice proceedings, i.e. deprivation (discontinuation) of constitutional powers under multi-level procedure for conditionally dual proceedings, in which the parliamentary proceedings and the constitutional justice proceedings are inter-connected and supplementeach other. (shrink)

Superior responsibility has been a widely recognised form of responsibility for omission in both treaty and customary international law. Superiors are held responsible for the acts of their subordinates when they fail in fulfilling their duties to prevent or punish crimes of subordinates. Duties to prevent and punish arise only after the superior knows about the subordinate’s crimes or has a reason to know about it. ‘Has a reason to know’ is a form of constructive knowledge and could be defined (...) as absence of actual knowledge about subordinates’ crimes where that knowledge should exist because of information available to the superior from the content of which it could be easily concluded that there is a possibility that subordinates intend to commit, are committing or have already committed crimes and the lack of that knowledge is a cause of willful disregard of his duties or at least disregard based on gross negligence. (shrink)

The paper deals with certain aspects of the interpretation and application of the law pertaining to the European Arrest Warrant (EAW), which are related to a person’s right to question the possibility of criminal prosecution as well as to the impossibility of execution of criminal prosecution in respect of a person who was not surrendered to the Republic of Lithuania. It is observed that the procedures of the execution of the EAW in legal practice, as distinct from their delineation in (...) the provisions of the legal acts of the European Union, are being inadmissibly misinterpreted in the national law. It conditions infringements of the right of a person to be brought to criminal account to know what he/she is suspected of. A person’s right to question the possibility and the limits of criminal prosecution is a constitutional guarantee towards the legitimacy of criminal proceedings. (shrink)

The article deals with the question how transnational corporations can bear direct responsibility for human rights abuses they commit by analysing the deficiencies of the current international legal background with respect to human rights and transnational corporations, and the solutions offered by national and regional legal tools. By establishing that current international law is incapable of reducing or compensating for governance gaps, the case law analysis shows that the litigation system under the Alien Tort Claims Act in the United States (...) and ATCA-like litigation possibility in the European Union present a feasible alternative to international law in the field of human rights protection when abuses are committed by transnational corporations. (shrink)

Legal acts of the Republic of Lithuania establish several types of material liability of workers engaged in labour (professional) relations: material liability applied pursuant to the Labour Code of the Republic of Lithuania (hereinafter referred to as the LC) and material liability applied pursuant to the Law on Public Service of the Republic of Lithuania (hereinafter referred to as the LPC). In the present article, theoretical and practical aspects of material liability of Lithuanian public servants for material damage caused are (...) analysed. The authors of the article study the conditions for the application of the material liability and identify the main circumstances that must be determined in applying this type of legal compulsion. Furthermore, the authors investigate the relation between the material and disciplinary liabilities, study the limits of the application of labour law norms (that regulate material liability of employees) and civil law norms (regulating personal civil liability) in professional legal relations, identify the means and procedure for solving disputes arising in the application of the material liability. Practical mistakes in the application of the material liability of public servants and violations are analysed on the basis of a rather sparse case-law of the Supreme Administrative Court of Lithuania related to the material liability. (shrink)

The Constitution of the Republic of Lithuania1 determines that both parents have to maintain their minors, while the state has to establish conditions under which parents would be able to do their duties, i.e. undertakes responsibility to maintain the children who lack the maintenance from their parents. Latter obligations are concretized in the Civil Code of the Republic of Lithuania2 (3.192–3.204 art.). It also anticipates the principles under which the child’s maintenance should be provided, its forms, size criteria and the (...) definition of its use and control. There is a theory that when parents are not able to fully perform the duty to maintain their children, the guarantees of the child’s constitutional rights oblige the State to secure quick reception of necessary financial support from other resources. Considering the existing social, economic, legal and other changes and sustaining both the analysis of court practice and doctrine attitude the article analyses present topicality concerning children maintenance, i.e. correspondence between child’s needs, parent’s wealth status and the prosecution of court’s decision, the correlation of state’s duty to children maintenance and parent’s responsibility, the peculiarities of majors maintenance. (shrink)

Succession of states regains its importance in current geopolitical situation as now we are witnessing a possible new wave of state succession: South Sudan has been accepted to the United Nations, Kosovo’s independence has been recognized by many countries, Palestine has gained new status in the United Nations, etc. This would lead to the necessity to resolve questions related to succession of states, which might, among other subjects, include issues of diplomatic protection which was subject to international legislation – International (...) Law Commission has prepared the Draft Articles on Diplomatic Protection. However, General Assembly is still not ready to adopt this document as a convention, therefore the term to consider possible ways of handling the issues on diplomatic protection within the UN was extended till 2013. Draft articles give the definition of diplomatic protection, indicating the main features of this institute. However, sometimes the difference among the institutes being called the same name with diplomatic protection might cause misunderstandings when analyzing the issue both in general and in the context of succession of states. One of the main prerequisites for diplomatic protection recognized in the jurisprudence of International Court of Justice is the Mavrommatis rule, which indicates that when protecting the citizen’s rights, state in reality is asserting its own right. This rule has been cited in other cases, however, especially now, when individuals already have quite a number of measures to protect their individual rights independently from the actions of state, it has been acknowledged that the rule is fictitious. This recognition, reflected in the Draft Articles and indicated in the commentary of it, is most welcomed as it helps to resolve questions related to the succession of states. There is a need to understand that there is a difference between international obligations under which state is entitled to diplomatic protection and those under which it really asserts its own rights, despite the fact that the latter might also be related to the rights of individuals. This difference is also important in the context of the succession of states, as the consequences arising out of the breach of these obligations in the context of state succession might differ. The last but not least issue addressed in the article is the question of the succession to treaties, which indicate individual rights, but does not form a customary international law. The question is whether the successor state is entitled to diplomatic protection on behalf of its succeeded citizen in a case of a breach of international treaty which was not subject to succession by the successor state. Taking everything into account, there are issues which are not addressed in the Draft Articles on Diplomatic Protection. Herewith there are issues of diplomatic protection which should be addressed in a case of state succession. Nonetheless, it should be reminded that diplomatic protection is always subject to the decision of the state itself, it is just important that newly created states understand and know the possibility to invoke international responsibility of the third state using the means of diplomatic protection, even if the injury was made to its national before the moment of state succession. (shrink)

There are two types of responsibilities of civil service enshrined in the Law of the Republic of Lithuania on the Civil Service – disciplinary and material liability. Disciplinary liability is the structural part of the Lithuanian civil service. It directly impacts the frame of the civil service, improves the image and gives people’s trust. That is the main reason to analyse the legal base and the practical application of the disciplinary liability in analytical-critical way. The article deals with the theoretical (...) and practical aspects of the responsibility of civil servants. This article also covers the peculiarities of the concept of disciplinary liability in order to reveal the procedural grounds of application of this kind of liability and the consequences for the status of a civil servant. The authors also analyse practical situations of demarcation between disciplinary and administrative liabilities. One part of the article is devoted to the analysis of procedural application of the disciplinary liability issues. The main goal of the article is to discuss problematic aspects of executing stage. The authors of the article come to the conclusion that there are two types of civil servant liabilities laid down in the Law – disciplinary and material liability. Taking into account the results of the analysis, it must be stated that the same things are defined differently in the legal acts. Disciplinary liability must be applied to civil servants and to public officers, whereas other kinds of liability must be applied to persons working on the basis of contracts. Moreover, the authors of the article draw the conclusion that the procedural mistakes made while applying disciplinary liability cannot fully eliminate the results of punishment. Here it must be clarified whether the rights of a civil servant were not restricted and whether the impartiality of the disciplinary inspection was guaranteed. That kind of analysis of procedural mistakes allows us estimating their status and the ultimate impact on the legality of disciplinary liability. (shrink)

Recent developments in criminal legislation of the Republic of Lithuania among other significant novelties include the criminalization of illicit enrichment as criminal offence. Such offence presents new legal instrument for the law enforcement in dealing with individuals who acquire property in doubtful ways. The crime of illicit enrichment is rather a novelty within the context of criminal legislation. Such novelty was largely based upon the requirements of United Nations Convention against Corruption, which stipulates the implementation of such legal measure. According (...) to the article Twenty of the convention, “Subject to its constitution and the fundamental principles of its legal system, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income”. While the convention was undoubtedly major factor for making grounds for said developments the need to widen the scope of confiscation of property and impound illegally acquired wealth were the driving forces behind the political will to support amendments to the Criminal Code. At same time the new offence of illicit enrichment presents significant challenges for the investigative bodies with the prosecution as well as the courts establishing such offences. First and foremost, the techniques of criminalization and legal wording of the offence are new and do not go well with the established principles of criminalization. Unnatural features of the corpus of the crime listed in the code (article No. 1891 of the Criminal Code of Lithuania) involve criminal act lacking attributes illegitimacy, complications regarding guilt of the accused. In addition, doubts and questions regarding the fundamental principles of criminal procedure, due process concerns, and problems of the balance of the rights of the accused with the right of the society to recover illicitly acquired wealth. The relationship of illicit enrichment to other criminal acts committed by the same accused is also of a great importance in establishing sources of such enrichment. As for the time of submission of present article, one hundred and seven interrogations on the illicit enrichment were on and lasting while only three simplified judgments and one proper court sentence were passed. The reasons for such slow implementation of the law are the ambiguities of the definition of law, as well as limitations of regulations, insufficiencies in asset declaration systems, lack of theoretical background and complete absence of court practice on such cases. Two of the existing convictions are analyzed from the point of view of establishment of guilt, the evidence set in the case, the grounds of adequacy of such convictions. The examples presented give basis to judge the adequacy of the new law an opportunity to predict the future rulings of the courts. Necessity of the improvements of the law becomes quite obvious on the basis of the analysis. Strong criticisms, various scientific suggestions on the improvements of the regulations, namely on the constitution of guilt, wording of the criminal act are presented by the author. (shrink)

In societies of high legal culture, criminal law is regarded as a protective and repressive measure of the state, as an imperative of crime and inevitable punishment (as a strict rule). Therefore, the article attempts to show the fact that the entirety of the provisions and norms of criminal law, consolidated in a modern democratic state under the rule of law (or, at least, a state that is attempting to become such a state), allows for the assertion that the purpose (...) of criminal law is coordination or, at least, the balance of the interests of conflicting subjects—the victim and the culprit, the culprit and the state. Thus, by means of criminal law, one can try to attain legal concord in seemingly irreconcilable situations. The reality of such striving is confirmed by court practice and statistics in criminal justice. The article analyses the origin of the reconciliation function, essentially a new aspect of criminal law. A position is formed that the fundamentals of such a function of criminal law are “laid” by the provisions of the Preamble to the Constitution of the Republic of Lithuania that the striving of the Nation is an open, just and harmonious civil society and a state under the rule of law. For the implementation of these provisions, one makes use of the possibilities of penal law-making and respectively corrects the penal policy. (shrink)

In tort law, including Lithuanian tort law, damage usually is divided into two types: pecuniary and non-pecuniary damage. The concept of non-pecuniary damage has recently become a focus of attention of Lithuanian legal researchers. However, it has to be noted that the issues related to the concept of pecuniary damage remain scarcely analysed. As a result, the unique type of pecuniary damage, i.e. the damage of purely economic character, has received no attention whatsoever in Lithuanian tort law. It is usually (...) believed that the defence of the values of purely material character fall into the sphere of contractual law, while tort law is not concerned with the protection of these values. However, in the course of the development of social relations it has become apparent that in the present-day society personal financial losses have become equally important to the cases of actual damage to a person or a property. On the other hand, the fear to overextend the limits of tort law and, thus, limit the persons’ freedom to act, coupled with the different nature of the values protected by tort law provide grounds for the position that relatively abstract financial interests and absolute values or relative personal values should be protected in different ways. Referring to the doctrine and practice of foreign countries as well as the results of the analysis of Lithuanian positive law and court practices, in this article we aim at giving an answer to the question of where and how the ambit of protection under the tort law in the cases of damage of purely economic character should be defined. (shrink)

Among the most complicated issues in the law of delict, in the case of multiple debtors, is to determine the scope of each co-debtor’s liability. The rule of proportional liability clearly favours debtors more than the aggrieved party. And, on the contrary, the solidary liability best suits the interests of the aggrieved party as the risk of co-debtor’s insolvency is transferred to the debtors. Furthermore, in the latter case, the debtors who attempt to allocate the scope of their liability among (...) themselves and fail to reach an agreement have to undergo two legal procedures: the first concerning the compensation to the creditor, and the second concerning the determination of the scope of their liability among themselves. Adequate balancing of the interests of the two parties (the debtor and the creditor) lies among the major tasks of tort law. Therefore, he law should seek specific rules instrumental in determining the scope of the co-debtor’s liability in the case of multiple debtors. The application of the rule of solidary liability is based on the assumption that individuals whose joint actions inflicted damage must compensate it together. (shrink)

The article analyses the key issues of the legal status of the sole managing body from the perspective of the valid legal regulation, the established case-law and doctrine. The first part of the article analyses the dualism of the manager’s legal status from the perspective of civil law and labour law. The analysis of the latest case-law presented herein shows that the rule of “internal” and “external” relations between the manager and the company formulated in the case-law is applied differently, (...) and the criterion of distinguishing the manager’s as the subject of the labour law and that of the civil law statuses still remains unclear. The authors of the article are of the view that due to insufficient legal regulation in force rules established by the case-law to regulate the manager’s legal status cannot ensure the required legal certainty. Thus, the reform of the manager’s legal regulation is essential. The second part of the article strives to answer the question what legal regulation models exist and what are the main criteria of quality legal regulation. The comparative analysis of the legal status regulation of the sole managing body allows to determine the main available regulation models of the manager’s legal status and to distinguish their advantages and disadvantages. The authors of the article believe that it is necessary to take regard to other states’ practices regulating the relations at issue, however, while creating such legal regulation, the evaluation of economic, cultural and social peculiarities of Lithuania is also required. In search for the most appropriate model of the manager’s legal status, attention should be drawn to the fact that in some aspects the labour law regime is too restrictive (e.g., shareholders cannot recall the manager, who is on maternal leave, and the manager at interim does not have full authority) and uncoordinated with the doctrine of the companies’ law. Moreover, quite a few questions directly related to the issues of the manager’s authority do not fall or only partially fall into the scope of the labour law. On the other hand, the problem of the manager’s legal status involves a broader scope of points of the companies’ law than the dualism of the manager’s status, and a part of these points has already been regulated by the Law on Companies (the agreement conclusion, termination, removal from the register of legal persons, terms of notice). In regard to this, a question can be raised if it not be better to regulate the issues of the manager’s legal status by the provisions of the Law on Companies and not of the Labour Code. It is proposed to create a specific legal regulation of the companies’ law, which could meet the needs of business and match up to the doctrine of the companies’ law, which is already being applied. (shrink)

According to the Finnish Penal Code a corporation may be sentenced to a corporate fine if a person who is part of its statutory organ or other management or who exercises actual decision-making authority therein 1) has been an accomplice in an offence or allowed the commission of the offence, or 2) if the care and diligence necessary for the prevention of the offence has not been observed in the operations of the corporation. Criminal liability of legal persons is based (...) on the intentional or negligent acts of individuals who are in a certain relationship with the corporation. The Finnish legal doctrine clearly rejects the identification theory according to which an individual is considered as acting not for a company but as a company. According to Finnish scholarly writings, the acts of an individual offender could be attributed to the legal person under certain conditions not as acts of the legal person but as acts of the individual for the company. Nonetheless, Finnish law does not abandon the fault requirement. In this respect, Finnish law differs from the traditional common law theory of vicarious liability. (shrink)