Some reflections of the mechanism of protection of the civil rights in Lithuania in the XXI century
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Abstract
On the st of January 2003 the new Code of Civil Procedure of Lithuania (CPC) came into force. Knowing that CPC was drafted during relatively short time, it seems not so surprising that some mistakes and shortcomings were not avoided. Those indeed were revealed when applying the mentioned complex instrument of procedural law in practice. Some provisions of the CPC have even already faced, and unfortunately not always successfully, the test of the conformity to the national Constitution.
It seems that the best appraiser of the legal act is time, which fixates the empirical observations of legal practitioners and scholars. Today, after some time has already passed since the CPC came into force, it becomes possible to discuss the shortcomings of the CPC that were already noticed in practice, to propose possible ways of elimination of those shortcomings, as well as to predict some general tendencies of the future evaluation of the civil procedural law of Lithuania.
While drafting and adopting the CPC, it was often underlined, that the drafters of the CPC had chosen the conception of social civil procedure, which is displayed by the aim to disclose the real circumstances of a legal dispute and to establish the material truth. Today it has to be acknowledged that while implementing the reform of civil procedure and aiming to prevent the procedural delays, which were quite common when applying the provisions of the former CPC, adopted in 1964, it was gone to one extreme to the other. In other words, the priority was given to the expeditiousness of court proceedings, but not to the adoption of the court decision which is materially correct. Meanwhile when analysing the recent jurisprudence of the Constitutional Court of Lithuania, one can reach the unambiguous conclusion, that the Constitutional Court supports the idea of active judge, need to protect the public interest and to establish the material truth in the case.
Following the argumentation of the Constitutional Court, one can predict the future evaluation of civil procedural law of Lithuania. Generally speaking, the tendencies of further evaluation of civil procedural law can be described by several phrasings: more attention to the protection of public interest, less absolute written prohibitions in the laws and more space for the display of judicial discretion. Therefore civil procedural law is “doomed” to be dynamical, constantly evaluating and changing branch of law. New tasks, set for the judiciary by the society, will inevitably be interrelated with the further evaluation of judicial practice and legal regulation. It is a road that has no end.
It seems that the best appraiser of the legal act is time, which fixates the empirical observations of legal practitioners and scholars. Today, after some time has already passed since the CPC came into force, it becomes possible to discuss the shortcomings of the CPC that were already noticed in practice, to propose possible ways of elimination of those shortcomings, as well as to predict some general tendencies of the future evaluation of the civil procedural law of Lithuania.
While drafting and adopting the CPC, it was often underlined, that the drafters of the CPC had chosen the conception of social civil procedure, which is displayed by the aim to disclose the real circumstances of a legal dispute and to establish the material truth. Today it has to be acknowledged that while implementing the reform of civil procedure and aiming to prevent the procedural delays, which were quite common when applying the provisions of the former CPC, adopted in 1964, it was gone to one extreme to the other. In other words, the priority was given to the expeditiousness of court proceedings, but not to the adoption of the court decision which is materially correct. Meanwhile when analysing the recent jurisprudence of the Constitutional Court of Lithuania, one can reach the unambiguous conclusion, that the Constitutional Court supports the idea of active judge, need to protect the public interest and to establish the material truth in the case.
Following the argumentation of the Constitutional Court, one can predict the future evaluation of civil procedural law of Lithuania. Generally speaking, the tendencies of further evaluation of civil procedural law can be described by several phrasings: more attention to the protection of public interest, less absolute written prohibitions in the laws and more space for the display of judicial discretion. Therefore civil procedural law is “doomed” to be dynamical, constantly evaluating and changing branch of law. New tasks, set for the judiciary by the society, will inevitably be interrelated with the further evaluation of judicial practice and legal regulation. It is a road that has no end.
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Please see Copyright and Licence Agreement for further details.
