Viešojo intereso problema civilinio proceso teisėje

Abstract

This article analyzes the problem of a definition of the public interest in the civil procedure law and practice. The legislator not only does not explain the concept of the public interest entrenched in norms of the civil procedure law, but it also does not establish any objective criteria or normative characteristics, following which one could ensure uniform interpretation of the concept. Legal literature suggests resolving this problem by leaving interpretation of the concept of the public interest solely to the case law. Courts however do not create legal norms. Therefore, they can only evaluate this concept in a certain situation and cannot provide for any normative characteristics of the public interest. Consequently, absence of a definition of the public interest is a serious problem of interpretation and application of laws of the civil procedure. No legal security and certainty may exist, if a legal norm is not clear and precise enough and if it can only be implemented by reason of its ad hoc interpretation.
The article analyzes the public interest as well as provides for the subjects and object thereof. That enabled to formulate and to present a definition of the public interest. The public interest is objectively existing as well as legally protected and defended general, non-individualized (not depending to particular persons) social needs of the society or of individual groups thereof, which are determined by universally acceptable aims of stability and positive changes in the society (public good). The subjects of the public interest are the society and its social groups. The object thereof is public good of the society.
The article treats the public interest as an independent subject of legal defence and protection. It also discusses guarantees of protection of the public interest in the civil procedure. The concepts of defence and protection of the public interest are defined, as well. The article provides for legal measures of protection and defence of the public interest, which would define objectively the public interest as well as which would make such definition more clear and specific. Such measures would establish the limits and criteria of the public interest, principles of protection and defence thereof, would ensure the balance between the public and private interests as well as would regulate the objects of the public interest, activities of the subjects protected by such interest, and the civil procedure of defence of the public interest.
Protection and defence of the public interest are related with restrictions of human rights and freedoms. Consequently, the article treats such restrictions reasonable if they meet the criteria of legitimacy and democratic necessity. Restrictions can be set only by law as well as the means must be proportionate to the legitimate aim being pursued (principal of proportionality). The public interest cannot be opposed with protection and defence of personal rights, freedoms, and legitimate interests. The just balance must be ensured in this field. The principle of just balance of the public interest and of protection and defence of personal rights, freedoms, and legitimate interests should be applied when civil cases regarding protection of the public interest are heard as well as when norms of the civil procedure, which establish guarantees of protection of the public interest, are construed and created.