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) Thu, 25 Oct 2018 00:00:00 +0300 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/11963 <p>[text in Lithuanian]</p> ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/11963 Thu, 25 Oct 2018 00:00:00 +0300 Pre-Trial Resolution of Administrative Disputes in Lithuania: Substantive Aspects of Special Legal Provisions http://www.journals.vu.lt/teise/article/view/11964 <p>[only abstract and summary in English; full article and abstract in Lithuanian]</p> <p>In this article, the author analyzes special legal provisions regulating legal administrative out-of-court dispute resolution in the main specific spheres of public administration, seeking to estimate the legal clarity of these provisions and the level of their harmonization with general legal provisions of the pre-trial administrative dispute resolution. The author is trying to investigate the character of special legal regulation particularly in the matter of its position in the hierarchy of law and of different regulative models of placing a dispute to different subjects in binding or facultative stages in order to evaluate both quantitatively and qualitatively the clarity of special regulation with regard to the possibility of ascription of the specific dispute resolution type to the pre-trial administrative process or administrative procedures.</p> <p><strong>Summary</strong></p> <p>In Lithuanian legal system, administrative out-of-court dispute resolution is vastly regulated by the provisions of special legislation in separate fields of administrative law. Commonly here the administrative dispute resolution is legally assigned to the administrative bodies performing public administration.</p> <p>In previous article having examined that, in the provisions of general laws, the legal category of the pre-trial administrative dispute resolution is described especially concisely, providing it should be established by the law, but lacks further qualitative criteria to the whole system and relies on the lawmaking in those specific public administration spheres, now the author continuously seeks to investigate special legal provisions regulating the legal administrative out-of-court dispute resolution. This research is focused on estimating the legal clarity of these provisions and the level of their harmonization with general legal provisions of the pre-trial administrative dispute resolution, and the ascription of the specific dispute resolution type to the latter resolution process, or administrative procedures. Therefore, the author analyzes the character of the specific regulation particularly in the matter of their position in the hierarchy of law and different regulative models of the dispute resolution, according to the clarity of the reference to common provisions, the dispute resolving subjects and the binding or facultative stages of dispute resolution. The analysis is based on quantitative and qualitative evaluation of the special regulation.</p> <p>The author comes to conclusions that, in various fields of administrative regulation, the specific legal provisions of the administrative dispute resolution are established in sub-statutory legal regulation, which under the principle of legality in all cases should not contradict the statute provisions, inter alia, the statutory provisions, which require that the pre-trial dispute resolution should be established by the law. The vast delegation of legislation in this sphere can potentially and really impose problems of the clarity and certainty of the legal regulation of the pre-trial administrative dispute resolution. The reduction of the delegated legislation, and instead, increasing and expanding the regulation of the pre-trial administrative dispute resolution by general laws would be eligible in order to achieve overall legal clarity and consolidate the legal regulation of the pre-trial administrative dispute resolution. Also, it is concluded that the less part of the researched special legal regulation refers to the general regulation, directly pointing to the category of the pre-trial administrative dispute resolution as described in the Law on Administrative Proceedings or redirecting to the provisions of the latter, or the Laws on Administrative Dispute Commissions and on Public Administration. In most cases, the special provisions are self-contained in assigning the administrative dispute regulation to particular administrative authorities. Hence, the regulative approach in this dominating part of special legislation can be described as the dissociation from the general categories of the pre-trial dispute resolution or administrative procedures. The modeling of the dispute resolution types described by the special legislation showed different combinations of dispute resolution levels by the internal administrative control, general pre-trial in administrative dispute commissions and in court. Most of this special regulation in practice requires systemic legal interpretation because it does not give clear provisions about the nature of the proceedings of the dispute resolution. As the pre-trial administrative dispute resolution is not sufficiently regulated in positive law, the main role in clarifying its general and special provisions lies in court jurisprudence.</p> Laura Paškevičienė ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/11964 Thu, 25 Oct 2018 00:00:00 +0300 Draft Laws on Administrative Court in the Interwar Period in Lithuania http://www.journals.vu.lt/teise/article/view/11965 <p>[only abstract and summary in English; full article and abstract in Lithuanian]</p> <p>The very first law under which Lithuanian administrative courts were established was adopted in 1999. However, the predecessors of the Administrative Court (the Commission of Legal Ministerial Advisors, Complaints and Remanding Commission of the Seimas, State Council) were created in the third decade of the 20th century. Notwithstanding this, these authorities could not match the judicial review of public administrators’ activity. Consequently, the first draft laws on the Administrative Court were drafted in the fourth decade. There were over ten of such drafts but only two remained. The goal of the article is to reveal the content and the background of draft laws on the Administrative Court developed in 1932 and 1940, which were found in the Wroblewski Library Manuscript Division.</p> <p><strong>Summary</strong></p> <p>The predecessors of the administrative court were created in the third decade of the 20th century in Lithuania. Notwithstanding, these authorities could not match the judicial review of public administrators’ activity. It is noteworthy that sometimes the Senior Tribunal performed the functions of the administrative court and reviewed the legality of administrative acts. However, some laws did not provide the possibility to challenge administrative acts in the courts. That was the main reason to create Law on the Administrative Court of the Republic of Lithuania.</p> <p>There were a number of attempts to establish judicial review in Lithuania in various laws: in Constitutions, State Council Statute, Law on the Judicial System. Around 10 draft laws on the Administrative Court were prepared by the State Council and the Seimas Commission. However, these attempts were unsuccessful.</p> <p>The first draft law on the Administrative Court was drafted in 1932 by the State Council. The main proposals of this document were: first, the Administrative Court is an Administrative Division of the Supreme Court of Lithuania; second, the Administrative Court disposes general jurisdiction of judicial review of individual or regulatory administrative acts due to the violation of subjective rights of natural or legal person; third, the Administrative Court is the only judicial instance and before bringing an action into court, a plaintiff must go through all lower review processes. The draft law created in 1940 by the Seimas Commission was almost the same but more detailed in the provisions of administrative process, what is more, the Administrative Court was proposed to be a separate judicial body.</p> <p>The main initiators of the Law on the Administrative Court were two lawyers: member of the State Council, judge of the Senior Tribunal, ad hoc judge of the Permanent Court of International Justice, constitutional and administrative law scholar M. Romeris and Memel Territory Governor, Meyer of Kaunas, member of the Seimas and last Prime Minister A. Merkys.</p> Ieva Deviatnikovaitė ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/11965 Thu, 25 Oct 2018 00:00:00 +0300 Types of EU Law Application in the Jurisprudence of the Constitutional Court of the Republic of Lithuania http://www.journals.vu.lt/teise/article/view/11966 <p>[abstract and summary in English; full article and abstract in Lithuanian]</p> <p>The significance of European Union law application in the jurisprudence of the Constitutional Court of the Republic&nbsp;of Lithuania varies. The European Union law application in the jurisprudence of the Constitutional Court of the&nbsp;Republic of Lithuania is examined. The typology and categories are proposed in the research and the characteristics&nbsp;of each of the categories are analysed.</p> <p><strong>Summary</strong></p> <p>The influence of the EU law on the Lithuanian Constitutional Court (Konstitucinis Teismas, hereinafter – Constitutional Court) is analysed in this article. Research is based on a coherent analysis of the jurisprudence of the Constitutional Court. To estimate the possible influence, all the jurisprudence was analysed and all decisions (63) which refer to the EU law were identified.</p> <p>Any attempt to assess the jurisprudence based on an objective criterion (such as time periods of court activities, reference to written law or jurisprudence, sources of the EU law, etc.) failed. The only possible criterion which could bring substantial results would be the cases where the Lithuanian Constitutional Court refers to the European Court of Justice for a preliminary ruling. Since there is one case from 2007 for such a reference and a second from 2017, this criterion could not yet be qualified as valid due to the insufficient practice. The research proves that the influence of the EU law on the jurisprudence of the Constitutional Court could not be assessed by any objective criteria.</p> <p>The research continues by searching for any possibility based on subjective criteria (although ensuring a highest level of objectivity and neutrality). This assessment was based on a tailor-made methodology: all the related jurisprudence (63 decisions) was analysed and preliminary categories were identified. Then all these decisions were meticulously reassessed and assigned into one of the categories. Three categories were proposed based on the ascension of the intensity of the said influence: orienting, reinforcing and harmonising.</p> <p>The more intense the EU law influence, the less jurisprudence could be assigned to a certain category: 40 decisions fall within the category of orienting category, 18 decisions to reinforcing category and only 5 decisions to harmonising category. The more intensive the EU law influence is identified, the more thorough analysis has been carried out. In the category of 5 influenced decisions, the decision of the Constitutional Court to refer for a preliminary ruling is assigned (another decision is expected due to the second referral in the end of 2017). There is a brief analysis of two particular decisions based on acte claire doctrine where the Constitutional Court could have referred for a preliminary ruling. One particular case might bring some challenges due to the differences in construing the EU law by the Constitutional Court and the European Court of Justice regarding the compulsory insurance against civil liability in respect of the use of motor vehicles.</p> <p>The research illustrates that the Constitutional Court clearly maintains a friendly approach vis a vis EU law and the preliminary ruling procedure could be used more frequently to maintain the judicial dialogue between the highest judicial institutions of different legal systems. This attitude becomes more important when the EU law influence is clearly present in a particular case.</p> Paulius Griciūnas ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/11966 Thu, 25 Oct 2018 00:00:00 +0300 Jüri Uluots (1890–1945) in His and Our Time http://www.journals.vu.lt/teise/article/view/11967 <p>[full article in German; abstract in Russian]</p> Peeter Järvelaid ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/11967 Thu, 25 Oct 2018 00:00:00 +0300 The Early Works of Ilmar Tammelos: The Way to the Science http://www.journals.vu.lt/teise/article/view/11968 <div> <p>[full article in German]</p> </div> Peeter Järvelaid ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/11968 Thu, 25 Oct 2018 00:00:00 +0300 Means of Securing the Preservation of Lawyer‘s Secrecy Under the Legislation of Uktaine http://www.journals.vu.lt/teise/article/view/11969 <p>[full article in Russian; abstract in English]</p> <p>Article is devoted to the definition of the essence of means of securing the preservation of the lawyer’s secret. Particular attention is paid to the legal regulation of guarantees that indicate the existence of the witness immunity of&nbsp;a lawyer and guarantees during the search or inspection of the home, other possession of the lawyer, the premises&nbsp;where he/she performs advocacy.</p> Виктор Викторович Заборовский ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/11969 Thu, 25 Oct 2018 00:00:00 +0300 The Status of Literary Monuments in National and International Law http://www.journals.vu.lt/teise/article/view/11970 <p>[full article in Russian; summary in Lithuanian]</p> <p>Libraries play an important role in the formation of personality, patriotism and a sense of national pride, strengthening the&nbsp;country’s authority in the international arena. The public mission of libraries is to collect and keep the national memoryof states, depositaries of treasures of knowledge and to provide access to this information to new generations. Among thetasks solved by libraries, the principles of their activities are to ensure the availability of cultural goods, to promote the&nbsp;protection of historical, cultural and archaeological heritage. The article analyzes the current situation of legislation on&nbsp;the protection of historical and cultural heritage. The author for the first time proposes a new approach in the science of&nbsp;international law: to adopt the UNESCO Convention «On the protection of book monuments».</p> Игорь Мартыненко ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/11970 Thu, 25 Oct 2018 00:00:00 +0300 Class Action as the Method of Managing a Multi - Party Civil Procedure http://www.journals.vu.lt/teise/article/view/11971 <p>[full article in Russian; abstract in English]</p> <p>The article is devoted to the definition of the legal nature of class action. The construction of class action is analyzed&nbsp;in the context of a multi-party civil procedure. Having considered the legal regulation of certain types of class action,&nbsp;the author came to the conclusion that the class action is the modified multi-party civil litigation.</p> Татьяна Андреевна Васильева ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/11971 Thu, 25 Oct 2018 00:00:00 +0300 Author Guidelines and Bibliographic Data http://www.journals.vu.lt/teise/article/view/11972 <div> <p>[text in Lithuanian]</p> </div> ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 http://www.journals.vu.lt/teise/article/view/11972 Thu, 25 Oct 2018 00:00:00 +0300