Peculiarities in the Adjudication of Cases Concerning Violations of Possession
##plugins.themes.bootstrap3.article.main##
Abstract
An institute of the civil procedure – the peculiarities in the adjudication of cases of violation of possession of things – exists in the Lithuanian legal system since 1 January 2003, when the new Code of Civil Procedure of the Republic of Lithuania came into force. Prior to the mentioned date, such a form of procedure was unknown to Lithuania. This conditions the fact that there is still a gap of legal research in the field. The authors, by invoking the systemic analysis of the provisions of the Civil Code and the Code of Civil Procedure of the Republic of Lithuania, and comparing the latter with the civil law and the law of civil process of the other European countries, seek to reveal the reasons for the necessity to anticipate in the civil procedure special rules of a summary character for the defence of possession of things, analyse the indications, which denote the differences between the adjudication of cases of violation of possession of things and the general contentious proceedings. The analysis provides a deeper look into causes which condition such peculiarities. The article outlines the common characteristics of the peculiarities of adjudicating cases concerning violations of the possession of things, discusses the relation between such a form of procedure and the other forms of the defence of civil rights and interests. It is pointed out that the existence of the peculiarities of adjudication of cases of violations of possession is justified and, at the same time, their essence is revealed by the fact that the process of defending possession, has an aim of eliminating the violations of possession, but not of settling the dispute over the legal status of a thing in general. This way, such special standards of the civil procedure allow for at least a temporary restoration of the status quo.
It is further progressed to the detailed analysis of the specific peculiarities of the adjudication of cases concerning violations of possession of things. The authors analyse the purpose of the special norms of the civil procedure, which concern the adjudication of cases of violation of possession of things, the relation of such norms with the provisions of material law, which concern possession, and are established by the Civil Code of the Republic of Lithuania, and also seek to an64 swer the question, whether the chosen form of the defence of possession is effective.
It is pointed out in the article that during the procedure of defending possession, it is not only unnecessary, but also not possible to aver one’s rights over a thing under disagreement.
Only the final factor of possession and the violation thereof must be proven. This simplified object of proof determines the fact that by lodging a possessive claim, during the course of the procedure the hearing cannot grow into a dispute over a right. An argument based on the right of possession may be relied on only when there is a particular aim of proving the fact of possession, but not of justifying the licence to reclaim a thing from illegal possession, because this is explicitly prohibited by Article 422 of Code of Civil Procedure, which provides that the court does not investigate into the right of the defendant over a thing, nor into his good will.
Some formal possibilities exist for the acceleration of the process while hearing such cases (special terms for preparing for the hearing of the case and for the hearing itself are laid down in Article 421 of the Code of Civil Procedure).
It is further progressed to the detailed analysis of the specific peculiarities of the adjudication of cases concerning violations of possession of things. The authors analyse the purpose of the special norms of the civil procedure, which concern the adjudication of cases of violation of possession of things, the relation of such norms with the provisions of material law, which concern possession, and are established by the Civil Code of the Republic of Lithuania, and also seek to an64 swer the question, whether the chosen form of the defence of possession is effective.
It is pointed out in the article that during the procedure of defending possession, it is not only unnecessary, but also not possible to aver one’s rights over a thing under disagreement.
Only the final factor of possession and the violation thereof must be proven. This simplified object of proof determines the fact that by lodging a possessive claim, during the course of the procedure the hearing cannot grow into a dispute over a right. An argument based on the right of possession may be relied on only when there is a particular aim of proving the fact of possession, but not of justifying the licence to reclaim a thing from illegal possession, because this is explicitly prohibited by Article 422 of Code of Civil Procedure, which provides that the court does not investigate into the right of the defendant over a thing, nor into his good will.
Some formal possibilities exist for the acceleration of the process while hearing such cases (special terms for preparing for the hearing of the case and for the hearing itself are laid down in Article 421 of the Code of Civil Procedure).
##plugins.themes.bootstrap3.article.details##
Section
Articles
Authors contributing to Jurisprudence agree to publish their articles under a Creative Commons Attribution-NoDerivatives 4.0 International Public (CC BY-NC-ND) License, allowing third parties to share their work (copy, distribute, transmit) and to adapt it, under the condition that the authors are given credit, and that in the event of reuse or distribution, the terms of this licence are made clear.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
