Draudimo skųsti sprendimą už akių klausimai

Abstract

The article deals with problems of the prohibition for the defaulting party to appeal against the default judgment, fixed in the Code of Civil procedure of Lithuania. The author disagrees with the opinion of some opponents that such a prohibition is no more than some kind of „punishment“ and that it by itself violates the constitutional rights of the defaulting party. After analysis of different nature of application to set aside, which is an opportunity rendered to the defaulting party by law, and a model of so called „limited“ appeal, which exist in Lithuania, the author concludes that rendering of special procedure for the defaulting party when another party preserves the right of appeal is just a natural consequence of the essence of default judgment.
However, the author notes that complete prohibition for the defaulting party to appeal against the default judgment is hardly compatible with the very strict legal conditions for default judgment to be set aside. According to the Lithuanian law, default judgment may be set aside only if both of the following conditions exist: 1) defaulting party presents to the court evidence that he/she defaulted because of justifiable reasons, and 2) presents new evidence that may change the essence of the default judgment. Thus even if the court of first instance has grossly violated the law (e. g. passed default judgment in a case in which it is prohibited), default judgement may not be set aside if the defaulting party can not justify his/her default.
As the institution of default judgement is new in the civil procedural law of Lithuania, courts of first instance quite often make procedural mistakes when passing default judgements. As a consequence of improper legal regulation, appellate courts are forced to overstep their competence when hearing appeals on the rulings to refuse to satisfy application to set aside and verify the legality of default judgement itself. This situation points to the need of changing the existing legal regulation, either liberalize the conditions for the default judgement to be set aside, or granting the defaulting party a right to appeal against the default judgement.
Presently the draft law, proposing to completely abolish the prohibition for the defaulting party to appeal default judgement was presented to the Seimas. However, in the opinion of the author, such a solution is not convenient. Bearing in mind some exceptions to the prohibition to present new evidence on appeal that exist in Lithuania, strict position of the Supreme Court of Lithuania regarding the right of appellate court to remit the case to the first instance court and experience of some other countries having analogous legal regulation, such amendments may cause a danger of abuse of procedural rights by defaulting party as well as distort the existing model of appeal. The author offers another solution under which the defaulting party may be granted a right to appeal against the default judgement only on the certain grounds listed by law.