There are several reasons, according to which it is worth analyzing European administrative law. First, this is a rather new branch of law. Second, the European administrative law is treated in different countries from different legal traditions positions, consequently, any effort to unify the approach to it can provide a basis for a unified European administrative law model. Third, there are no works dedicated to the analysis of the phenomenon of the European administrative law in Lithuania. Therefore, this article deals (...) with the concepts of the European administrative law. It is stated that the comprehensive image of the European administrative law reveals three European administrative law concepts. The first concept of the European administrative law characterizes it as the European Union (hereinafter – EU) administrative law, the validity of boundaries of which can be based on three aspects – functional, institutional and procedural. The second concept of the European administrative law identifies it as the law of administrative cooperation., whereas the third concept allows the European administrative law to be seen as the law common to various public administrations of European countries – ius commune. The article focuses on the analysis of the above-mentioned three approaches and the EU set of administrative procedures as an instrument to promote the development of the EU administrative law. The author comes to the conclusion that the concept of the ‘European Administrative Law’ is broader than the concept of the ‘EU Administrative Law’. The European administrative law can be perceived not only as a part of law that establishes the EU administration’s administrative legal status, its’ activity principles, forms and methods, but also as a law of administrative cooperation between states, governmental and non-governmental organizations and various corporations, based on a wide range of multilateral treaties or conventions, which cross the limits of the EU. Moreover, the European administrative law can be understood as a law with common concepts, general principles characteristic to different European countries’ public administrations as well as a science, with the help of which diverse administrative legal systems of various countries could be compared. Taking into account the content of various working documents, the author draws the conclusion that for the further development of the EU administrative law the establishment of uniform operating rules for the EU administration in its’ relations with the society is of exceptional importance. There are a number of important reasons to develop the Law on administrative procedure of the EU. First, it is generally recognized that the EU needs common binding legislation that sets out clear operating rules of the EU administration in its’ relations with legal and natural persons, and that would increase the transparency of the EU administration and its’ accessibility to citizens. Second, the drafting of the law on administrative procedure of the EU lies in the legal framework as well; the importance of the article 298 of the Treaty of the Functioning of the European Union, the articles 41 and 42 of the Charter of Fundamental Rights of the EU as well as “soft” law (i.e. codes of good administrative behavior) are obvious here. (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)

Today’s Lithuania is the historical-legal result of many processes, including the creation of the country in the thirteen century, ongoing life during five hundred years, two annexations resulting in the disappearance from the political map and two rebirths. The tradition of statehood and extended experience has greatly contributed to its survival and its ability to regain statehood in the light of the changed political, economic and social circumstances. Upon the climax of the First World War, the reinstatement of the statehood (...) of Lithuania has been influenced by favourable international situation, the popularity of the principle of nation’s free choice, and the decisive actions by the Lithuanian politicians. The relationship of the modern Lithuanian statehood with the historical state of Lithuania meant the continuity of this statehood, even though it was a multinational country. Without any other prospects upon the fall of other European empires, it has been replaced by the statehood based on national ethnicity. Together with the determination to manage the reinstated country of Lithuania according to the democratic principles, this was the main difference from the historical Lithuania. The state of Lithuania has managed to keep its own legal formal framework even though it has lost sovereignty upon annexation by the Soviet Union. The statehood has been reinstated once favourable circumstances came into place within the Union. The High Council of Lithuania has transformed from being a marionette structure forced upon by alien country into an instrument of parliamentary struggle for independence that has represented the second rebirth of the statehood of Lithuania. The formation of own law in both cases occurred by temporarily using current alien legislation that was not in conflict with the newly adopted constitutional legislation. The former has been gradually replaced by own legislation. (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)

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)

The Civil Code of Lithuania (1964), in force until 2000, did not regulate the objects of civil rights, thus Chapter V of Part III of Book I of the Civil Code of Lithuania is a significant novelty. Several approaches to an abstract definition of the objects of civil rights still exists in the legal doctrine: whether the object of civil rights and the object of the civil relationship coincide; is the object of civil rights an element of the civil relationship (...) and can separate objects (e.g. actions) be considered as the objects of civil rights. Some authors consider such discussion useless to the practical implementation of the law, however, other authors emphasise that the lack of attention of the theory to this subject causes methodological problems while analysing the functional and systemic links among different types of civil relationships. Therefore, the purpose of this research is to analyse the link between the concepts of the object of civil rights and the object of civil relationship, the link between the objects of civil rights and property objects and the types of objects of civil rights in order to reveal the system of objects of civil rights. The subject-matter of the research is the analysis of legal regulation and legal doctrine of the objects of civil rights and their types and their interrelation with the property objects in order to identify the abstract definition of the object of civil rights and examine the system of objects of civil rights. (shrink)

Evasion of value added tax (VAT) is a pressing criminal justice problem; however, there still are no theoretical studies on the specific nature of this offense and the basis of its legal evaluation. This article is an attempt to explain the preconditions of the origin of this type of fraud and its connection with the Value Added Tax Law, to formulate the conceptual understanding of the offense, to reveal the important aspects of its legal evaluation and to discuss relevant examples (...) from the case-law. The preconditions of VAT fraud lie in the legal nature of tax administration and the particularity of VAT regulation creating opportunities to abuse the right of deducting the overpayment from the budget or reducing the tax payable. The system of tax crimes stipulated in the Criminal Code is not sufficient to properly assess the impact and danger of VAT fraud. The judicial practice considering VAT deception as property fraud is theoretically justified and welcome. (shrink)

This paper examines the concept of medical necessity as it relates to mental health care rationing, arguing that the normal functioning model of medical necessity is insufficient because it fails to cohere with an important aim and function of mental health care, which is to provide support for individuals in abusive or otherwise difficult personal relationships.

lt is now commonplace in fallacy inquiry for many of the traditional informal fallacies to be viewed as reasonable or nonfallacious modes of argument. Central to this evaluative shift has been the attempt to examine traditional fallacies within their wider contexts of use. However, this pragmatic turn in fallacy evaluation is still in its infancy. The true potential of a contextual approach in the evaluation of the fallacies is yet to be explored. I examine how, in the context of scientific (...) inquiry, certain traditional fallacies function by conferring epistemic gains upon inquiry. Specifically, I argue that these fallacies facilitate the progression of inquiry, particularly in the initial stages ofinquiry when the epistemic context is one of uncertainty. The conception of these fallacies that emerges is that of heuristics of reasoning in contexts of epistemic uncertainty. (shrink)

Illustrations: Numerous B/w Figures Description: Key questions in the history of Navya-nyaya (New Nyaya) remain unresolved: when did this school of logic begin, who was its founder, what distinguishes Navya-nyaya from Pracina-nyaya (Old Nyaya), and so on. This book attempts to answer these key questions in Part I. Part II provides a translation, analysis, and critical edition of the Lion and Tiger Definitions of Invariable Concomitance Chapter (Simha-vyaghra-laksana: LT Chapter) of the Tattva-cintamani-rahasya (TCR) of Mathuranatha (16th-17th c.). The hypothesis adopted (...) by the author with regard to the first question is that Udayana, who lived in the 11th century, is the founder of Navya-nyaya. This hypothesis is closely linked to the hypothesis offered regarding the second question, which is that the feature that distinguishes Navya-nyaya from the earlier school is its description of concepts and the structure of the world in terms of relation. Early Navya-nyaya authors, who flourished between Udayana and Gangesa (14th c.), devised specific terminology, of which delimitor (avacchedaka) and describer (niËpaka) are the most important, in order to identify or specify relation. This book attempts to illustrate the function of these and other Navya-nyaya terms from the viewpoint of relation. The main sources upon which the author has based his conclusions are Udayana s Laksanavali and the chapters on invariable concomitance or pervasion (vyapti) of the Nyaya-siddhanta-dipa (NSD) of Sasadhara (13rd-14th c.), the Tattva-cintamaÆi (TC) of Gangesa, and the TCR. Of these Sanskrit texts no scholar has worked on the Invariable Concomitance Chapter (Vyapti-vada) of the NSD in detail or the LT Chapter of the TCR. The latter chapter follows in the TCR the Five Definitions of Invariable Concomitance Chapter (Vyapti-pancaka), which Ingalls edited, translated, and analyzed in his epoch-making book Materials for the Study of Navya-Nyaya Logic (1951). One major innovation of this book made in Part II is to explain the structure of Navya-nyaya analysis by employing 86 diagrams based on the dharma-dharmin (property and property-possessor) relation, which serve as a visual aid and help readers to more easily understand the complicated structure of its analysis. The diagrams are also helpful in ascertaining how the definitions of invariable concomitance apply to individual cases and how the entities are connected in the application of the definitions. Another major innovation is: almost every sub-section of the LT Chapter of the TCR contains Mathuranatha s clarification of part of the two definitions; but this clarification does not give the definition incorporating prior clarifications and insertions; this book provides such a definition accompanied by a diagram. In other words, Part II illustrates the structure of the whole definition at every process of the clarification, which (definition) is never presented as such in Mathuranatha s text. (shrink)

Globalisation, repeated economic (financial) crisis and other contemporary social processes are changing the capability of the state to provide individual social security and guarantee human rights. There is therefore a need to review social policy guidelines and their implementation measures. The problem is how to develop the social security system of state, so that human rights are not violated. For the reformation of the social security system to be consistent, it is also necessary to determine the principles on which the (...) social security system should be based. This article examines the concept of the principle of subsidiarity and its impact on the implementation of socio-economic human rights. The goal of this research is to explore theoretical aspects of application of principle of subsidiarity for ensuring the protection of socio-economic human rights and development of the policy of social security in Lithuania. In order to achieve this goal, the research starts from the analysis of the concept and origin of the principle of subsidiarity and its impact on the implementation of human rights. Further the constitutional basis and levels of application of this principle for implementation of socio-economic human rights are studied. Lastly, according to the principle of subsidiarity, some relevant issues of Lithuanian social security system are evaluated. (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)

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)

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 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 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 aim of the article is to answer the question if accession can be maintained as a separate and independent mode of acquisition and loss of ownership in the Lithuanian civil law. Although this mode takes its beginning in the Roman law and is well-known in other European jurisdictions, the situation in Lithuania is less clear because the accession is almost totally absent from the legal texts of the Lithuanian positive civil law, court decisions and legal doctrine as well. Thus, (...) a legal analysis confined to the linguistic analysis of law would come to the conclusion that Lithuanian law functions without the accession. Nevertheless, a deeper analysis of the Lithuanian Civil Code and case law reveals a different view. To respond to the posed question, the article analyses the functions and the concept of accession as one of the aspects of a broader property law principle, namely, of unity. The essence of the latter is that one thing presupposes one right of ownership and it is inconceivable to hold several full ownerships into the same thing. In this respect, accession plays an important role protecting the legal interests of the third parties. Also, the application of accession in other continental European countries and the solutions proposed by the Draft Common Frame of Reference is analysed. Further, the analysis turns to the Lithuanian positive law and case law. In spite of the lack of express reference to the accession rule, careful analysis shows that, in fact, the accession rule is established in the Lithuanian Civil Code, albeit it could be found in various forms and in several different units of the Civil Code. Also, Lithuanian courts routinely apply the rules on accession in practice. Even more, the analysis shows that the Lithuanian Civil Code is not devoid of the rules of accession, but, on the opposite, this legal institute is over-regulated and, in part, incoherent. This quality can be explained as a consequence of an imprecise legal drafting. The final conclusion is drawn that accession is a separate and fully working legal institute of Lithuanian civil law, although to reach its coherent application a certain interpretative position should be adopted. (shrink)

This chapter contains sections titled: Background Concepts for Examining LTS Dynamics Societal Implications of LTS References and Further Reading.

The act of “embezzlement” provided for in Article 183 of the Criminal Code of the Republic of Lithuania gives rise to a number of both theoretical and practical problems. First of all, various authors do not agree whether embezzlement constitutes a substantive or formal element. In the author’s opinion, embezzlement is deemed complete when possession of the property of others is taken illegally and there is a real possibility, perceived by the perpetrator, to manage it, to use it or to (...) dispose of it or misappropriation is made of a property right, giving the perpetrator a possibility to receive other persons’ property or property benefit immediately or in the future, to treat the property of others as one’s own. That is, when a real possibility, perceived by the perpetrator, to treat the property of others as one’s own arises but not when the damage is caused. In this case, particular importance is adduced to the condition that the perpetrator must clearly perceive his/her possibility to treat the property of others as one’s own. In case such a possibility has not been perceived by the perpetrator, we cannot state that embezzlement is complete. The moment of completeness and the fact that in practice there may be cases where no real damage is caused to a legal entity when the perpetrator embezzles property of the former (see the example in footnote 15), show that the criminal act provided for in Article 183 of the Criminal Code contains a formal element. When evaluating practical problems, the article overviews two rulings of the Supreme Court of Lithuania that are of particular importance for the formation of the case-law. Before the ruling of the Supreme Court of Lithuania of 8 May 2012, this court used to formulate somewhat erroneous case-law in examining cases concerning accusations raised on the basis of Article 183 of the Criminal Code. In cases where the head (shareholder) of a company was accused of embezzlement and used all the “cashed” funds of the company only for the interests and benefit of the company, the court used to evaluate the factual circumstances of the case not as indicative of the fault of the defendant, but only as indicative of the purpose of his/her act. Even if it was determined that the perpetrator did not perceive the real possibility to treat the company’s property as his/her own and always used to regard the property which came to his/her disposal as the company’s property, the court used to qualify the perpetrator’s act as embezzlement, by reasoning that the purpose of the perpetrator’s act was not a circumstance relevant for such qualification. It can be stated that in such a manner the court failed to distinguish between the concept of purpose and the concept of fault, failed to evaluate the features of the subjective part individually, and assessed them in their entirety. Due to such a mistake, the court created an impression that the concepts of fault and purpose in the case were confused. By its ruling of 8 May 2012 the Supreme Court of Lithuania corrected those mistakes, however, its instruction to investigate whether “cashed” funds were not used “for personal needs” and whether the company suffered damage introduced a confusion into the investigation of cases of this type and their examination in court, as the concept of “personal needs” was not absolutely clear, whereas the fact of suffering damage was not necessary in order to qualify an act under Article 183 of the Criminal Code. In the author’s opinion, the Supreme Court of Lithuania should pronounce clearly that the cases where the head (shareholder) of the company has not perceived the real possibility to treat the other person’s property as his/her own will not be regarded as property embezzlement and there will be no deliberation in the person’s act. The absence of such perception would be confirmed by the fact that the perpetrator has used absolutely all “cashed” money of the legal entity only for the interest and benefit of the company. (shrink)

This paper is dedicated to a critical discussion of the logical-philosophical conceptions of language that are presented in Rolandas Pavilionis’ book Language. Logic. Philosophy, its primary focus being an analysis of Pavilionis’ hypothesis of meaning as nonverbal continuous system. The paper consists of two parts. Two types of theories of meaning are distinguished and an analysis of the discussed conceptions of natural languages is proposed in the first, analytic, part of the paper: assumptions that are relevant for the philosophical semantics (...) are identified and used for clarification of the presuppositions of the alternative semantic programme advanced by Pavilionis. Two shortcomings of Pavilionis’ semantic theory are presented in the second, critical, part of the paper. First, it is maintained that Pavilionis’ theory of understanding, which suggests taking the notion of interpretation as fundamental, is unacceptable: interpretation is an enabling, not a constitutive condition of understanding. Second, due to the lack of discussion of the epistemic aspects of meaning and the relation between concepts and conceptual capacities, it remains unclear what theoretical value can be carried by the idea of innate concepts and how can it be made compatible with externalistic aspects of this semantic theory. (shrink)

This article presents the dual conception of legal regulation of funding of political parties. In general, funding of political parties is considered as part of public law, however, this article explains that it also could be understood as an institute of private law. When funding of political parties is analysed not only through the conception of public law, but also taking into consideration the idea of private law, it is possible to apply different (than usual) principles of legal regulation of (...) such relations. Those principles are followed in this article in order to reveal different practical problems pertaining to legal regulation of political party funding. A conclusion is made that the legal provisions on funding of political parties form an integral system that consists of both public law and private law provisions. The relations when natural and legal persons assign property to political parties are considered as part of private law and those property relations that are based on state subsidies to political parties or other financial support by the state are the object of public law regulation. In the case of Lithuania, all such relations are regulated by the Law on Funding of, and Control Over Funding of Political Parties and Political Campaigns, which is an act of private law and also a source of public law. The legal regulation that stems from this law is supplemented by the Civil Code of the Republic of Lithuania and other related laws. The legislator, while regulating the legal relations pertaining to the funding of political parties, and the courts, when dealing with disputes related to those relations, are advised to take into consideration the general principles of civil law. It is important to point out that some legal provisions of the Law on Funding of Political Parties that are in force as of 1 January 2012 are against those principles. A prohibition for legal persons and limitations for natural persons to fund political parties should be critically considered, since those restrictions limit the possibilities for private persons to dispose their property and for political parties – to acquire it. Moreover, it is important to point out that such restrictions can be circumvented by assigning property through a third party and by other legal means. In order to avoid such cases, it is recommended to provide an opportunity for natural and legal persons to fund political parties, but with reasonable limitations for such donations. (shrink)

There are some problems in the implementation of rulings of the Constitutional Court. The legislator should make more efforts for implementing the concept of the provisions of the Constitution provided in the reasoning parts of rulings of the Constitutional Court. The Statute of the Seimas should be supplemented with provisions obligating structural sub-units of the Seimas to carry out permanent and systemic analysis of reasoning parts of rulings of the Constitutional Court. It would allow timely to prepare proposals how (...) to amend still unchallenged legal regulation which, however, from the constitutional standpoint is doubtful. One should consider whether the norm of Item 4 of Paragraph 1 of Article 64 of the Law on the Constitutional Court, which allows one to challenge the compliance of a legal act with the Constitution on the grounds of the procedure for adoption regardless of any terms expired after the adoption of a law or other legal act, should be amended. It is to be presumed that the principles of legal certainty and legal security entrenched in the Constitution, as well as other constitutional provisions, imply a certain reasonable period of time within which the subjects provided for in the Constitution may apply to the Constitutional Court with a petition requesting to investigate whether a law or other legal act is not in conflict with the Constitution according to the procedure of their adoption. This period of time should not be a long one, for example, half a year or a year since the official publishing of the law; this term should be a prescriptive one–after it has finished, it would not be allowed to challenge the compliance of a law or other legal act with the Constitution according to the procedure of their adoption. In order to speed up the consideration of cases at the Constitutional Court, one would have to change the procedure of consideration of cases in this Court in essence. (shrink)

The modern doctrine of the “fresh start” reflects the differences between the past paradigm of punishment of the insolvent person and the current focus on the economic effectiveness and activeness. Global practice in the field of insolvency shows that the “limited liability rule” is eminently effective in the economic and social perspective. The appending threat of abuse and misapplication of the system might be neutralized through the legal regulation of prevention and rehabilitation means, which are analyzed in this article. The (...) aim of this research is to: 1) present a summary of the paradigm of bankruptcy of natural persons; 2) evaluate the categories of prevention and rehabilitation means set in the Lithuanian concept of the bankruptcy of natural persons; 3) identify the physical factors affecting the bankruptcy of natural persons; 4) provide a conceptual model of rehabilitation after bankruptcy and insolvency prevention measures have been implemented in the field of bankruptcy of natural persons. (shrink)

The paper analyses theoretical presuppositions of the predominant form of semantic naturalism in contemporary analytic philosophy. The aim is to show that irrespective of the fact that the doctrine of semantic naturalism is grounded in ontological and epistemological naturalism, and is developed on the basis of semantic externalism, this conception of foundational semantics rests on internalist premises, and therefore should be construed as Cartesian. Theories and their interrelations that are assumed by semantic naturalism are explicated by relying on the tripartite (...) interpretation of “the problem of intentionality”. The Cartesian aspects of the assumed theories – and thus of the form of semantic naturalism that is analysed – are then specified in the context of Hilary Putnam’s version of semantic externalism. (shrink)

The article presents a geographic position of the Arctic. Legal regimes of the Arctic and the Antarctic are compared. In a geographical terms, the Arctic is part of the ocean that is covered by ice, and Antarctic is a continent covered by ice which is surrounded by an ocean. It follows that Arctic should be considered a part of the world’s ocean, which is governed by 1982 UN Convention on the Law of the Sea. Currently, a sectoral regime is established (...) in the Arctic. The article analyzes the views of international law scholars on the issue and shares an opinion of those who criticize sectoral regime of the Arctic as incompatible with international law. Yet, what principles should underpin legal regime of the Arctic? Recent scholarly writings have considered a concept of common heritage of mankind. The article discusses the concept of common heritage of mankind. In the view of the author, this concept can be applied only to specific maritime areas but not to Arctic in its entirety. The article further thoroughly discusses Russia’s practice as regards its claims regarding the continental shelf of the Arctic. Furthermore, it evaluates the grounds of Russia’s policy in the Arctic until 2020 and also examines Russia’s application for extension of continental shelf in the Arctic and the Pacific Oceans. The article ends with conclusions. (shrink)

Cyber warfare is becoming a new reality with new battles fought everyday on virtual battlefields. For a century and a half, International Humanitarian Law has been a sentry for victims of wars guaranteeing their legal protection from the calamities of war, trying hard to respond to Clausewitz’s “chameleon of war”. Cyber conflict marks new chameleon’s colour together with the unmanned aerial vehicles, autonomic battle systems and other technologies deployed on battlefields. However, it would be greatly erroneous to claim that the (...) International Humanitarian Law may not apply to the new phenomena just because it is caused by the advanced technology. Even if the Geneva Conventions of 1949 are already sixty years old, the International Humanitarian Law in itself has at minimum customary response mechanism, granting, in a spirit of Marten’s clause, protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience (Protocol I). Notwithstanding, some more complicated fundamental issues also have to be addressed: how the use of cybernetic weapons and means may affect the classic notion of armed conflict? How it can be interpreted in the light of new technologies, i.e. can we still rely on a classic understanding of weapon’s kinetic effect as the main element, or shall we embrace effectsbased “Schmitt’s criteria”. If it so happens, will it make an act without apparent damage to a person/property equal to military hostilities, required by the armed conflict notion and justify the real-life response to it. The effective or overall control tests were used for the attribution of non-state actor’s activity to the state party of an armed conflict but these tests might not meet its purpose in the virtual battlefield of loose networks and open-source communities. If the concept of armed conflict is treated more flexibly, other changes (including issues of attribution) may follow, as well. Perhaps this is the way how the combatant institute will evolve. With classic combatant’s criteria impossible to apply on virtual battlefields, one of the options would be to elaborate concepts of “constant combat function” and “direct participation in hostilities” more precisely, as well as to reconsider state’s affiliation requirements. (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)

The paper deals with mutual conditionality of existence between the civil society and legal state. The paper is based on the 1918-1940 doctrine of independent Lithuania, the models of the legal state and the tentative models of the civil society created at that time. In the first part of the article, the concept of the legal state is discussed. In terms of creation of the model of the legal state, M. Romeris works are of exceptional importance. It his works, (...) M. Romeris related the legal state in essence with the legal, procedural system for ensuring the lawfulness. On the basis of works of European scholars of the 19th–20th centuries, M. Romeris conducted a critical analysis of the legal state and elucidated its most significant traits. It is notable that M. Romeris was able to make a correct insight into the strategy of advancing towards the legal state. (shrink)

This article is aimed at representing the approaches of legal theory to the interaction between law and politics and to depict the main national features of the relationship between law and politics. The analysis is based on the adoption of methodology of fundamental work of Mauro Zamboni “Law and Politics”. The adoption of methodology was used only partially, while seeking to identify and clarify the features of static, dynamic and epistemological aspects of the relationship of law and politics in Lithuania. (...) Researchers have faced the problem of a diverse approach to the definitions of law and politics, and it has been resolved by focusing only to the researches representing the standpoint of legal theories. The analysis has led to the findings that there are reasonable grounds to assume that legal content (referring to the “static” aspect of law and politics) in Lithuania is flexible to outgoing politics. This implication is based on 1) the noticeable disproportion of legal regulation in different areas of social life, 2) law-making priority areas determined mostly by the choice of political actors will and 3) through changed execution of legal norms, prefering the forms which could be more cost effective (alternative dispute resolutions) and more suitable for changing social environment. What concerns the “dynamic” aspect of the relation between law and politics, it is implicated that there are backings for both open and closed law making, but at the same time more open legislative features are observed than the closed ones. This tendency is identified in the legislative process, where the help out of non-legal world is applied (using sociology) and the persistence of politicians to access and use the institutes of citizens’ legislative initiative (iniciatives for referendums or other legislative initiatives, the right to petition, etc.) is obvious. The reflection of „epistemological“ aspect of the relationship between law and politics in Lithuanian legal discipline reflects the general trend of international scientific community of law. It is considered to step back from the autonomous legal discipline concepts and in this way the appropriate conditions for incorporation of different categories from other scientific fields are created. On the other hand, a reserved cautious attitude of both researchers and research institutions on the conjunction of law and political science is observed. The interaction between law and economics and business or public relations is still prioritized. (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)

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)

Internal protection alternative (further—IPA) as the element of refugee definition is interpreted very differently in the practice of the State Parties to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (further—Geneva Convention). Thus it is important to regulate this concept clearly in the EC directive 2004/83/EB (further—Qualification directive) and its coming amendments. The definition of the IPA concept does not contain adequate criteria for assessing the level and effectiveness of protection required, in line (...) with the Geneva Convention and the ECHR, thus allowing Member States to reject claims and return applicants to their country of origin despite the lack of effective protection. Moreover, this concept is defined in a broad and vague manner which creates a risk of diverse recognition practices. (shrink)

Unwritten constitutional conventions also known as lex non scripta, are under permanent scholarly scrutiny. This does not happen only in the Anglo-Saxon scholarly tradition. When analyzing the issues of unwritten law, a considerable number of representatives of this tradition, starting with W. Blackstone and finishing with contemporary British and American scholars, also talk about the existence of constitutional conventions. It should also be noted that issues pertaining to unwritten law and issues of conventions in particular, are often mentioned and analyzed (...) in the works of scholars of the Roman-Germanic legal tradition. Italian, French, German and Czech scholars take account of constitutional conventions, analyze their features and hold discourse on their future. However, in the course of scholarly debate, the issues of constitutional conventions have been dealt with in a fairly controversial manner. Even though individual scholars recognize constitutional conventions, the variety of opinions and conceptions is too large to form a uniform understanding. (shrink)

It is a striking point that, in the general context of the municipal administration's reform, this administration itself is never brought into discredit. When criticisms are formulated, they concern the fact that not all municipalities are able to offer their inhabitants the services which they normally may expect, as well for their immediate human development as for the adapted extension of the material infrastructure and of their vital environment. This normally raises the question of the municipalities' administrative power.The factors which (...) determine that power can be considered in direct or indirect connection with the number of inhabitants.In the first place, the population has to be sufficiently differentiated to enable the conception of a development-policy that comes up to the requirements of the present society. One may assume that in municipalities with 2.000 inhabitants, which perform a centre-function or are located near a town-centre, the possibility exists to elect a properly composed common council. For rural municipalities the numberof inhabitants must undoubtedly be higher. Moreover, the municipality should have the disposal of specialised personnel to help the municipal authorities with the conception and practice of their policy. InBelgium a municipal secretary cannot do bis work properly if the municipality does not count 2.500 to 3.000 inhabitants.In the second place, administrative power is determined by available finances. Calculations have been made per category of municipalities, based on disposable data concerning 196.5 and 1966.As far as the extraordinary accounts are concerned, which essentially refer to investment expenses, it is relevant to note that the average figures per inhabitant are equally high in municipalities with less than1.000 and with 10.000 inhabitants. But, taking into account the cost of planned infrastructure-works, it is a fact that only from 10.000 inhabitants on a municipality has the disposal of sufficient finances to performa development-policy.The figures concerning ordinary accounts, which refer to operation- and administrative costs, show that a municipality with less than 1.000 inhabitants - although offering less services - has to spend more perinhabitant than a municipality with 5.000 to 10.000 inhabitants. lts fiscal charge is also higher than that of a municipality belonging to the latter category.The figures clearly show the disadvantage of smaller municipalities.In that context one should not forget that practically 63 to 70 % of ordinary expenses concern the actual operations and municipal debts. Seen in proportional relations, small municipalities have but little means to take care of policy-tasks.To be complete «municipality with administrative power» also means «municipality with a democratic function». As a matter of fact, administrative power is not exclusively determined by sufficient financialresources or by a minimum of differentiation of the inhabitants. Generally speaking one can assume in this context that the geographical size of the territory does not normally hamper the functioning of alocal democracy. More attention however should be given to the question if that functioning is not rather hindered by the number of inhabitants, when a certain population-maximum is exceeded. lt appearsindeed that local authorities have less appeal in urbanised municipalities or as soon as a population-number of 20.000 to 30.000 inhabitants is reached. For that reason, attempts should be made in bigger municipalities to stimulate the population's participation in policy-matters.Activities with a definitively technical character, need a wider approach. So it seems more advisable to work on the basis of regions, rather than on the basis of large municipalities.Taking into account the big number of small municipalities, one can state as a conclusion that the municipal elections miss a great part of their signification in the majority of Belgian municipalities. Practically two thirds of them have no possibility to perform an adapted policy.Changing the constitution of those who are responsible for that policy cannot give much of a result as there are no material means to realize a modern policy with administrative power. (shrink)

Abastract The article analyses the intense public debate between the author Martin Walser and Ignatz Bubis caused by Walser's speach on the occasion of the award of the »Friedenspreis des Deutschen Buchhandels 1998«. lt argues that the conflict is based on two different conceptions of democratic public, public moral, and the function of moral elites in public. Both conceptions have religious implications and analogies in traditional theological conceptions of social corporations.

This article presents the conception of negligent account management, analyses the rules of the criminal act that govern criminal liability for negligent account management, by focussing on the form of guilt and the problem of its content. The plenary session’s conclusion that the two offences – failure to administer bookkeeping and failure to protect the bookkeeping documents – can be committed both intentionally and negligently is disputed in this article. The adoption of the new Criminal Code in 2000, setting the (...) form of guilt and its content in criminal cases for negligent account management, posed no significant problems – the court practice and legal literature followed the attitude that this crime could be committed only negligently. According to Article 16(4) of the Criminal Code 2000, a person is punished for negligent commission of a crime or a misdemeanour only in individual cases stipulated in the Special Part of the Criminal Code. The problem was that no “individual case” was foreseen in Article 223 of the Criminal Code that imposed liability for negligent bookkeeping. This created preconditions for deviating from pre-existing case-law under which this crime could be qualified as negligent. Only in 2009 the Criminal Division of the Lithuanian Supreme Court concluded in its plenary session that Article 223 of the Criminal Code provided liability for criminal record-keeping and accounting only if committed negligently as a form of guilt, and other activities pursuant to this Article might be committed intentionally and recklessly. The plenary session identified a loophole of criminal law and created preconditions for the formation of uniform court practice. Only the legislator can remove the loophole of criminal law identified by the Supreme Court of Lithuania. The author states that all of the acts named in Article 223 of the Criminal Code can be committed negligently and suggests applying the rule contained in Article 16(4) of the Criminal Code to Article 223 of the Criminal Code. All of these findings are based on historical, grammatical and logical interpretation of the “neglect” concept and the analysis of Articles 222 and 223 of the Criminal Code. (shrink)

The article provides an analysis on how much the standard court proceedings can be regarded as the research, which is performed by investigating by what manner and measures the justice in a procedural sense is implemented. It is generally acknowledged that the court, as a subject, solving a legal dispute, implements justice only in the case, when it ensures the impartiality towards all persons. The appropriate legal proceedings form a constituent part of the constitutional right to apply in the court. (...) The article aims at introducing certain aspects of the implementation of the principle of justice in the court proceedings of Lithuania. It is indicated that the lack of legal methodology results in different arguments of the rendered decisions and their unpredictability, therefore, it does not encourage to opt for the legal peace. The article is topical in a sense that it has not provided an analysis, on which the aspects of impartiality reveal themselves in the nowadays case law in particular cases and how it produces an effect on the approach to justice. In Lithuania, doctrinal presumptions were created for the freedom of the courts, upon which the courts started to formulate new procedural regulations. The freedom of the actions of judges is based on the aim to ensure a stronger safety in regard to the rights pertaining to one of the public groups, i.e. to disallow the domination of certain subjects over the others by eliminating inequality between the parties. The freedom of the actions of judges is also justified by the aim to render the right decision. However, the formulation of the new regulations according to the actual situation by too freely interpreting the norm of the proceedings, without having the doctrinal basis for that, causes the legal confusion, thus inconsistency in the case law appears, the inner contradictions arise and, in addition to that, there is a failure to follow the standard of impartiality. The individualisation of each legal dispute pursuant to the newly established procedural regulations creates the presumptions for legal instability. Upon the absence of doctrinal substantiation for the newly formulated procedural regulations, the risk arises for the courts to unduly avail of the competence granted to them, thus there will be no implementation of the justice attained. The approach, based on the demand for an individual safety, encourages to refuse the regulations, which are universally applied. Such conception of justice is characteristic for legal individualism, which is grounded in consumerism, by means of which the standard court proceedings are refused, while the extended sympathy theory becomes the starting point. The comprehension and observance of the legal methodology is one of the conditions for the development of the consistent case law. The presence of a clear method in the case law will allow to prevent from pursuing different legal conceptions, i.e. different reasoning of a court decision upon the similar circumstances, as well as it will prevent from speculating on the accepted legal position by refusing the legal argument. (shrink)

This article analyses one of the variations of classic mediation,64 which is mandatory mediation. In foreign countries mandatory mediation is often used as a tool to encourage the use of mediation and to popularize this method of alternative civil dispute resolution. Started in 2005, mediation faces difficulties in Lithuania. Thus, making mediation mandatory at least in certain categories of disputes could give new impetus to the development of mediation in Lithuania. Therefore, the article deals with the concept of mandatory (...) mediation, analyses experience of foreign countries in the field of mandatory mediation, deals with practical problems while implementing mandatory mediation and presents a review of arguments for and against mandatory mediation. On the basis of a study performed, the author of the article submits proposals for the introduction of mandatory mediation in the Lithuanian legal system. In this article mandatory mediation is defined as a form of mediation where the parties are directed to use mediation by judge or by law. Mandatory mediation can also be imposed on the parties by procedural and economic sanctions against parties for the unjustified refusal to use mediation. In all cases, the main condition for the application of mandatory mediation is the right of the parties to the dispute to go to court. Under this condition, mandatory mediation for its expected social and economic benefits is not considered to be an obstacle to access justice. The practice of foreign countries that implemented mandatory mediation shows that drastic imposition of mandatory mediation naturally induces rejection. Thus, consistent, systematic, based on the results of the interim analysis of the gradual introduction of mandatory mediation, starting with certain categories of disputes particularly susceptible to the effects of mediation is necessary. The author of the article proposes to promote mediation in Lithuania by introducing mandatory mediation for at least certain categories of disputes. The introduction of mandatory mediation in Lithuania could be started from the family disputes including interests of children. At a later stage it is possible to decide on the feasibility of application of the mandatory mediation for other categories of disputes, as well (e.g., labour, small sum property disputes, disputes between relatives and neighbours, etc.). In order to encourage not only the parties to use mediation, but also judges to direct parties to mediation, it would be appropriate to introduce mandatory mediation by the law (the Civil Procedure Code of the Republic of Lithuania) that would have an exemption provision to allow a party to petition the court for good cause to be exempt from the referral to mediation. (shrink)

Este artigo é fruto de uma pesquisa sobre o magistério da Filosofia, no Ensino Médio, em Uberlândia. Revela metodologias espontaneístas e conteudistas, no bojo das concepções aqui denominadas de "romântica", "enciclopédica" e "crítica''. Palavras-chave: Educação no ensino médio; Filosofia; Uberlândia. Abstract: This article is product of a research about the teaching of Philosophy, at high school, in Uberlândia. lt tries to show some methodologies, associated to conceptions called here "romantic", "encyclopaedic" and "critic". Keywords: teaching at high school; Philosophy; Uberlândia.

Tyrimų duomenys rodo, kad šiuolaikinė tranzicijos į suaugystę patirtis neatitinka so­cialinių normatyvinių tvarkaraščių, o suaugystės samprata prarado didelę savo vaid­menų struktūros ir tradicinės prasmės dalį, tapo daug labiau psichologiniu reiškiniu, siejamu su vėlyvosios modernios visuomenės individualizacija. Šiame straipsnyje analizuojamos suaugystės sampratų sąsajos su tranzicijos į suaugystę patirtimi Lietuvoje XXI a. Siekiama atsieti šias sąsajas formuojančius ar jų nebuvimą lemiančius veiksnius. Tam pasitelkta 1990­ųjų pradžioje gimusių dviejų skirtingų lyčių jaunuo­lių suaugystės atvejų analizė, paremta kokybine gyvenimo istorijų interviu medžiaga. Straipsnyje taip pat (...) pateikiamas platesnis ir bendresnis suaugystės modelių kaitos, pra­sidėjusios visuomenėms pereinant iš modernybės į vėlyvąją modernybę, vaizdas. Jis papildomas suaugystės kaitos XX–XXI a. Lietuvoje apžvalga. (shrink)

Even though the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) does not explicitly address the rights of asylum seekers and refugees, the case law of the European Human Rights Court (ECtHR) confirms that their rights can be successfully defended under this mechanism. In parallel, in its evolving jurisprudence on asylum the Court of Justice of the European Union (CJEU) refers to the Strasbourg case law, where there is a certain interrelationship between these two jurisdictions, in particular (...) given the recent ECtHR pronouncement on “EU Dublin transfers”. The article aims at evaluating protection available for asylum seekers and refugees under the ECHR, while comparing it with protection of asylum relevant fundamental rights under the EU legal order and the most recent jurisprudence of the CJEU in asylum cases. The authors also analyze which of the two systems is more favourable and what are their limitations. Thus, the article offers to students and practitioners a detailed analysis of ECtHR and CJEU jurisprudence in asylum cases through a comparative perspective, as well as the key problematic aspects arising in both jurisdictions and their junction. The jurisprudence of the ECtHR reveals that despite the most developed protection from expulsion under Article 3 of the ECHR, it does not sufficiently secure status for the concerned persons. Effective remedy requirements under the ECHR allow for filling the gaps of national asylum procedures, while recognition of vulnerability and special status of asylum seekers by the ECtHR assist in addressing still commonly prevailing detention problems of asylum seekers in Europe. In the context of family protection, the recognition of positive obligations by states to reunite the refugee families is still rudimentary, thus, clearly Article 3 protection in expulsion cases takes over Article 8. At the same time, the jurisprudence of the CJEU in asylum cases is still inconsistent, as the court sometimes takes decisions without including human rights into its’ analysis (Kadzoev, Arslan, K.), while in other cases refers to the Charter (MA and others), verifies if its’ own decision is in line with the ECtHR jurisprudence (Elgafaji) or shapes secondary legislation in line with Strasbourg arguments and findings (N.S.). Quite likely, the ECtHR practice will have an important influence on the developments of subsidiary protection in the EU, at least in the context of Articles 2 and 3 of the ECHR, and serve as an important reference for interpretation of various concepts under the EU Qualification and Procedures Directives. The comparative analysis of pros and cons of the two mechanisms demonstrates that the main advantage of the ECtHR is individual justice possibility, which is not yet accessible under CJEU preliminary judgement procedure and its input in developing asylum law concepts, such as non-state agents of persecution, internal protection or even subsidiary protection regime under EU asylum law. Thanks to the ECtHR, the realistic possibility to question the application of certain EU norms has emerged (Dublin Regulation). While the ECtHR does not have such a specific competence over asylum issues as the CJEU and is clearly a slow and seriously overburdened mechanism, the pilot judgement procedure seems to be increasingly capable of providing guidelines to the states concerning systematic problems in their asylum procedures. Thus, both jurisdictions in their own ways contribute to strengthening asylum seekers’ protection while forming a common oasis for these individuals in Europe. (shrink)