Law http://www.journals.vu.lt/teise <p>Founded in 1957. Publishes articles on theoretical and practical issues of law.</p> lt-LT <p>Please read the Copyright Notice in&nbsp;<a href="http://www.zurnalai.vu.lt/teise/journalpolicy">Journal Policy</a>.&nbsp;</p> gintaras.svedas@tf.vu.lt (Gintaras Švedas) vigintas.stancelis@kf.vu.lt (Vigintas Stancelis) Wed, 20 Feb 2019 11:44:38 +0200 OJS 3.1.1.2 http://blogs.law.harvard.edu/tech/rss 60 Editorial Board and Table of Contents http://www.journals.vu.lt/teise/article/view/12515 <p>[full article and abstract in Lithuanian; abstract in English]</p> ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/12515 Wed, 20 Feb 2019 00:00:00 +0200 Implementation of Trade Secrets Directive into Lithuanian Law http://www.journals.vu.lt/teise/article/view/12516 <p>[full article and abstract in Lithuanian; abstract in English]</p> <p>On 8 June 2016 the directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure was enacted, which should have been implemented by the EU member states into their national laws by 9 June 2018. This would raise important questions how these new rules are compatible with the already existing national laws, what will be the scope of changes and what will be the possible impact on national legal practices. This research paper aims to answer these questions from the perspective of Lithuanian national law.</p> <p><strong>Summary</strong></p> <p>On 8 June 2016 the directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure was enacted, which should have been implemented by the EU member states into their national laws by 9 June 2018. In spite of the certain degree of harmonisation of the trade secrets protection brought by Art. 39 of the TRIPS Agreement the new directive provides for a new set of norms. This would raise important questions how these new rules are compatible with the already existing national laws, what will be the scope of changes and what will be the possible impact on national legal practices. This research paper aims to answer these questions from the perspective of Lithuanian national law. For that purpose the current and newly proposed laws, as well as the Lithuanian case law concerning the protection of trade secrets are analysed and assessed.</p> Ramūnas Birštonas ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/12516 Wed, 20 Feb 2019 00:00:00 +0200 Who is Entitled to the Right to Respect for Family Life Under the European Union Law? http://www.journals.vu.lt/teise/article/view/12517 <p>[full article, abstract in English; abstract in Lithuanian]</p> <p>The article investigates the right to respect for family life, established by Article 7 of the Charter of Fundamental Rights of the European Union, as applied and interpreted in conjunction with the right to marry and the right to found a family, laid down in Article 9 of the Charter. The standard of protection set by European Union law regarding these rights is identified by taking into account the standard of protection of the relevant rights established by the European Convention on Human Rights and the established case law of the European Court of Human Rights. Topical issues relating to the consolidation of these individual rights at the national level in the Republic of Lithuania are also addressed in the article. In doing so, an emphasis is laid on the content of the concepts of “family” and “family life” under supranational and national law.</p> Ingrida Danėlienė ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/12517 Wed, 20 Feb 2019 00:00:00 +0200 Application of Article 12 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction in Lithuanian Courts http://www.journals.vu.lt/teise/article/view/12518 <p>[full article and abstract in Lithuanian; abstract in English]</p> <p>The article analyses Article 12 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction which allows courts to refuse return of abducted child where the proceedings have been commenced after the expiration of the period of one year after abduction and it is demonstrated that the child has settled well in the new environment. The author of the article seeks to establish whether the jurisprudence of Lithuanian courts interpreting and applying this Article is well-founded.</p> <p><strong>Summary</strong></p> <p>This article scrutinises content and application of the Article 12 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, in particular its paragraph 2, which allows court to refuse return of abducted child where the proceedings have been commenced after the expiration of the period of one year after abduction and it is demonstrated that the child is now settled in its new environment. The author of the article seeks to establish whether the jurisprudence of Lithuanian courts applying this Article is proper and in line with the Convention.</p> <p>Analysing the cases of national courts of Lithuania, the author of this article established that in several cases Lithuanian courts when interpreting one year term have consistently ruled, that this is a procedural and formal requirement and can be ignored for the best interests of the child. As a result, a child, which is abducted just few months ago is not returned as if is established he has integrated in the country and it is in his/her best interests to continue residing here. The author criticises such an approach and suggests that such practice should be changed.</p> Agnė Limantė ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/12518 Wed, 20 Feb 2019 00:00:00 +0200 Judicial Decision Making: Intuitive and Rational Information Processing http://www.journals.vu.lt/teise/article/view/12519 <p>[full article and abstract in Lithuanian; abstract in English]</p> <p>The contributions of judges’ intuitive and rational information processing making decisions on criminal (robbery) cases were evaluated. Results are interpreted in the context of cognitive psychology and discussed in relation to the contemporary trends and future perspectives in the field of legal decsion-making.</p> <p><strong>Summary</strong></p> <p>The aim of the current study is to investigate the contributions of judges’ intuitive and rational information processing making decisions on criminal (robbery) cases. 98 judges working in various courts of Lithuania‘s general jurisdiction participated in this study. We asked participants to solve two vignettes. One vignette was designed to be compatible with intuitive information processing (i. e., anchor provided at the end of the vignette suggested a correct decision), while another counter-intuitive (i. e., anchor suggested incorrect decision). 51 judges were instructed to solve vignettes intuiti- vely under a limit time (<em>intuitive</em><em> group</em>), 47 judges – rationally with no time constraints (<em>rational group</em>). Results of the current study revealed that intuitive group decided on higher sentences (i.e. was closer to an anchor), compared to rational group. Additonally, we found that judges’ in rational group rational information processing contributed to 53.19%, and intuitive information processing – to 8,51% of all decision-making process. Moreover, judges’ in intuitive group rational information processing contributed to 35.29%, and intuitive information processing – to 15,68% of all decision-making process. Results are interpreted in the context of cognitive psychology.</p> Tomas Maceina, Gintautas Valickas ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/12519 Wed, 20 Feb 2019 00:00:00 +0200 Reasons of Application of the Business Judgment Rule http://www.journals.vu.lt/teise/article/view/12520 <p>[full article and abstract in Lithuanian; abstract in English]</p> <p>The reasons which led to the formation of the business judgment rule and its implementation are discussed in the present article. The courts usually have the competence to rule on the legality of the defendant’s actions and (or) their civil liability. Courts’ competence is being limited when the legality of the business decisions is analyzed and (or) the case of civil liability of the board members‘ or chief executive officer‘s of the private legal entities is decided. Due to the application of the business judgment rule the courts should abstain from evaluating the legality of the business judgments of the private legal entities, if they turned to be unprofitable or profitable not enough where such decisions were made by complying with the duties applied to the board members or chief executive officers. Motives, which justifies special civil liability regime of the directors are analyzed in the article.</p> <p><strong>Summary</strong></p> <p>Although the courts usually have the competence to rule on the legality of the defendant’s actions and (or) their civil liability, Courts’ competence is being limited when the legality of the business decisions is analyzed and (or) the case of civil liability of the board members‘ or chief executive officer‘s of the private legal entities is decided due to the appli- cation of the business judgment rule. As the business judgment rule has been identified by the case law of the Supreme Court of Lithuania, in this article author analyzes the reasons which led to the formation of the business judgment rule and its implementation in the jurisdiction of its origin – United States of America. Conclussions demonstrate that business judgment rule was implemented in the US case law with the purpose to guarantee and declare clearly that the ultimate decision maker within the private legal entity are board members or chief executive officers and not the courts. Business judgment rule works as a guarantee for the executives that they will not be held liable or criticized for the well-informed and fair decisions they make in the course of the company’s management. It encourages board members and chief exec- utive officers to take the risk needed for the development of company.</p> Justinas Jarusevičius ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/12520 Wed, 20 Feb 2019 00:00:00 +0200 The Definition of Green Public Procurement in Lithuanian Legal Regulation http://www.journals.vu.lt/teise/article/view/12521 <p>[full article and abstract in Lithuanian; abstract in English]</p> <p>The article focuses on the analysis of definition of green public procurement and its consolidation in Lithuanian legal regulation, revealing the legal basis for green procurement, examining and comparing definition of green procurement in terms of legislative and sub-legislative legal regulation, considering the application of sub-legislative definition of green procurement and its subsequent legal regulation in practice, identifying the main shortcomings of such regulation, proposing solutions for its improvement.</p> <p><strong>Summary</strong></p> <p>Green public procurement in Lithuania is regulated at the legislative and sub-legislative level: the law establishes general rules for the application of environmental protection requirements, which provides for legal possibilities for contracting authorities to implement environmental protection requirements in the course of public procurement; sub-legislative regulation specifies a specific definition of green procurement by pre-setting environmental protection requirements for specific green products which remain unchanged during the particular procurement, accurately defining their content and implementation conditions.</p> <p>The legal bases for green procurement reveal ambiguity in the perception and definition of it, highlight issues with environmental content. It is suggested to relinquish the regulation of environmental protection requirements exclusively in the context of legal regulation of public procurement and consolidate an interdisciplinary approach to green procurement, viewing it as a measure which balances economic and environmental interests. Also, the establishment of the main environmental objectives and requirements, applicable to green procurement, would be welcome.</p> <p>The definition of green procurement, permissible under the law, allows for a broad and extensive concept and is characterized by a procedural nature and unclear content of environmental protection requirements. However, the definition of green procurement, enshrined in the sub-statutory regulation and used in practice, only partially implements the legislative provisions of legal regulation. Moreover, the legislative provisions are implemented very specifically and in great detail, covering only a limited scope of environmental protection requirements. Environmental protection requirements of a more general nature, permissible under the law, are rarely foreseen in the narrow definition. Therefore, the definition of green procurement, which would not be limited to requirements for green products, but would allow taking into consideration sufficient legal possibilities, concerned with environmental requirements, would satisfy the best integration of environmental protection requirements into the legal regulation of public procurement.</p> <p>If a narrow definition of green public procurement with significant drawbacks continues to dominate in Lithuania, there is a danger that green procurement will remain a formal instrument. It is suggested to strengthen contract enforce­ment and control, as well as encourage more frequent use of advanced environmental criteria, gradually moving to the exclusive implementation of these criteria.</p> <p>The new possibilities for the inclusion of environmental aspects into public procurement at both EU and national levels are not well implemented in the sub-legislative definition of green public procurement and its subsequent legal regulation in Lithuania. It is suggested to improve the sub-legislative regulation of green procurement accordingly by considering new environmental provisions in the public procurement regulation, implementing them in relevant envi­ronmental protection requirements.</p> Rimantė Rudauskienė ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/12521 Wed, 20 Feb 2019 00:00:00 +0200 Targeted Financial Sanctions of the United Nations and the European Union: Attribution of Criminal Character http://www.journals.vu.lt/teise/article/view/12522 <p>[full article and abstract in Lithuanian; abstract in English]</p> <p>The article analyses the character of the targeted financial sanctions as imposed by the United Nations and the European Union. The article portrays that United Nations and European Union institutions, the Court of Justice of the European Union and part of the scholars do not recognize the criminal character of the measures currently, and arguargues that in the context of the international human rights law these measures shall be considered of the criminal character.</p> <p><strong>Summary</strong></p> <p>The article analyses whether targeted financial sanctions as imposed by the United Nations and the European Union shall&nbsp;be considered of criminal character. The article portrays that United Nations and European Union institutions, the Court&nbsp;of Justice of the European Union and part of the scholars do not recognize the criminal character of the measures. The&nbsp;article argues this position cannot be considered as well-grounded and that the measures, as being imposed for serious&nbsp;offences and causing very serious indefinite long-term effects on subject’s life and activities, on the scope of fundamental&nbsp;rights and freedoms, shall be considered of criminal character.</p> Viltė Kristina Steponėnaitė ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/12522 Wed, 20 Feb 2019 00:00:00 +0200 Separate Opinions in Lithuanian Constitutional Justice Procedure: Development and Prospects for Improvement http://www.journals.vu.lt/teise/article/view/12523 <p>[full article and abstract in Lithuanian; abstract in English]</p> <p>The article analyses the legal regulation of separate opinions. The research is focused the procedure of constitutional justice and its legislative development. The author argues that legal regulation of separate opinions in Lithuania should be improved by assigning mandatory publication of separate opinions together (in the same form and at the same time) with judicial decisions.</p> <p><strong>Summary</strong></p> <p>The article analyses the legal regulation of separate opinions in Lithuanian administrative, civil, constitutional and criminal procedures. The research is focused on the legislative development, and its main aspects and arising problems.</p> <p>Separate opinion of a judge in administrative, civil and criminal procedures in Lithuania is a part of case material, not court judgement. This status deems that separate opinions produced by judges of such courts are usually undetectable by the public, unless the courts or parties of the case selectively publish them. The absence of mandatory publication makes comprehensive studies on the dissent rate in these courts impossible, and limits the knowledge of judicial deci­sion-making in this respect.</p> <p>Judges of the Constitutional Court since its establishment in 1993 were banned from issuing separate opinion in an effort foster the authority of a new court, and to protect it from political influence. After long discussions, separate opinions were introduced in late 2008. However, legal regulation was and remains flawed since it allows for separate opinions to be written and published days after the public pronouncement of the Constitutional Court’s ruling. Separate opinions in this jurisdiction are also viewed as a part of case material, and not as annex to the court’s decision.</p> <p>It is concluded that the stated issues of the legal regulation of separate opinions should be resolved by legal amend­ments, which would take into account the original concept of separate opinions and comparative cases of the leading courts. Therefore, separate opinion should be mandatorily published together with court judgements (within the same form and at the same time) as their annexes, not just an addition to case material. This model would improve the quality of legal argumentation in both separate opinions and judgments, and allow for a more thorough research on judicial decision-making. It would also mitigate possibilities for political or biased interpretations of separate opinions, which arise from the possibility to write and publish separate opinions after the public pronouncement of a court judgement. concerned with environmental requirements, would satisfy the best integration of environmental protection requirements into the legal regulation of public procurement.</p> <p>If a narrow definition of green public procurement with significant drawbacks continues to dominate in Lithuania, there is a danger that green procurement will remain a formal instrument. It is suggested to strengthen contract enforce­ment and control, as well as encourage more frequent use of advanced environmental criteria, gradually moving to the exclusive implementation of these criteria.</p> <p>The new possibilities for the inclusion of environmental aspects into public procurement at both EU and national levels are not well implemented in the sub-legislative definition of green public procurement and its subsequent legal regulation in Lithuania. It is suggested to improve the sub-legislative regulation of green procurement accordingly by considering new environmental provisions in the public procurement regulation, implementing them in relevant envi­ronmental protection requirements.</p> <p>&nbsp;</p> Andrius Valuta ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/12523 Wed, 20 Feb 2019 00:00:00 +0200 Protection of the Weaker Party to a Property Development Contract under Polish Law. Implementation of the Model of the State’s Protective Duties in Practice http://www.journals.vu.lt/teise/article/view/12524 <p>[full article and abstract in English]</p> <p>This study examines the mechanism of the protection of customers of property developers that was introduced into Polish legal system by the Property Development Act adopted on 16 September 2011. Those customers are the weaker party to a property development contract that should be protected by the State. The article presents the very concept of the Polish property development contract, its substance and legal forms as well as its practical aspects. This issue of the protection of customers of property developers is of a great importance not only in Poland but also in other European countries that have experienced a boom in the real estate market in the last decade. The article discusses also the issue of the compatibility of the Property Development Act with the model of the State’s protective obligations in horizontal relations that has been established under the Constitution of the Republic of Poland of 2 April 1997. The paper concludes by presenting some postulates of amendments to the Property Development Act submitted by consumer organizations, industry representatives and entrepreneurs as well as a very comprehensive draft of the amendment presented in May 2018 by the President of the Office of Competition and Consumer Protection. This draft is currently at the stage of inter-ministerial consultations and it is difficult to foresee whether the new solutions will be adopted by Parliament in such a form.</p> Monika Florczak-Wątor ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/12524 Wed, 20 Feb 2019 00:00:00 +0200