Neteisėtumas kaip valstybės deliktinės atsakomybės sąlyga

Abstract

This article analyses the concept of unlawfulness as a prerequisite of tort liability of the state. The main question raised in the article is whether unlawfulness should be (or must) be understood in the same meaning while solving questions of tort liability of the state and questions of tort liability of other kinds, or should other standards be applied in case of tort liability of the state, if yes – what kind of standards. Auxiliary questions analysed in this article having the aim to answer the main question are the following: 1) whether the duty of the state to compensate damages arises if public institution or official is in breach of general duty to act carefully and attentively instead of concrete legal norm? Law-governed state acknowledges that every public institution and official should exercise its‘competence within maximum of care and attentiveness. But if the answer to the question would be “yes”, then criterions should be found according to which unlawfulness of act could be stated (taking into account that the act may not be abolished as contradicting to concrete legal norm); 2) Should duty of the state to compensate damages arise in every case when private persons suffer damages? What criterions should be used to draw the line between the existence of duty to compensate damages and between non-existence of such duty? 3) Should duty of the state to compensate damages arise in every case when it is stated in administrative procedure (or any other procedure foreseen in laws) that an act of a public institution or official is unlawful, i.e. if meaning of unlawfulness is the same in tort liability of the state and other branches of law?
As judicial practise of Lithuanian courts is a very scarce regarding these issues, and as there is no any legal literature which should analyse valid norms of Lithuanian laws regulating tort liability of the state, the main attention in this is article is drawn to the analysis of legal civil theory and judicial practice of foreign developed countries chosen by the author: England, United States of America, Germany and France. Legal theory called “legisprudence” developed by Belgian scientist Luc J. Wintgens is also presented in the article trying to show how new theories should substantiate possibility to questions acts of the modern state in respect of their lawfulness and unlawfulness. The article discloses the main problems found in the judicial practise of the Lithuanian courts while solving questions of unlawfulness of acts adopted (performed) by public institutions and officials and presents the possible answers to these problems.