State as a Subject of Tort Liability
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Abstract
This article analyses norms of Lithuanian law which regulate tort liability of the state for the harm caused by wrongful acts of the public institutions and officials having the aim to disclose the virtual content of the concept „state“ as the debtor in the said tort. The author focuses on the problems of the liability of the state for the harm caused by the wrongful acts of the legislative power of the Republic of Lithuania, i.e. the author seeks to ascertain if according to the legal acts of the Republic of Lithuania the state may be deemed to have waived the sovereign immunity against the claims of private natural and legal persons arising out of the harm done by the acts of the legislative power. The legal theory and judicial practice of selected foreign counties and the European Union is analyzed in the article, as well. Moreover, the article seeks to disclose the possible influence of the recently settled practice of the European Court of Justice to the national law of the member states regulating the tort law of the state. Having the aim to discuss the issue in detail, the author presents the evolution of the state immunity doctrine in France, England, United States of America, Germany and Belgium in historical aspect and discloses the content of three known principles of the liability of the state („the king can do no wrong“, „the king decides himself what is right and what is wrong“ and „the king is just and ordinary guy“).
The author analyses the content of articles 6.271 – 6.272 of the Lithuanian Civil Code which came into force on the 1st of July, 2001 and of article 5 of the Lithuanian Constitution and draws the conclusion that the said articles do not preclude tort liability of the state neither for the wrongdoings of the executive and judicial, nor of the legislative branch of the Republic of Lithuania. According to this, the author attempts to reason her opinion that the commentary of the article 6.271 of the Civil Code of the Republic of Lithuania glossing that it regulates only liability for the harm caused by the acts of the executive and judicial branches is unjustified. Seeking to disclose the position of the judiciary of Lithuania to the analyzed problem, the author discuses the decisions of the Supreme Administrative Court of Lithuania of March 21, 2003 and of June 27, 2003 m. which dealt (or ought to have dealt) with the question of liability of the state for the harm caused by the law later recognized by the Lithuanian Constitutional Court to be unconstitutional.
The author analyses the content of articles 6.271 – 6.272 of the Lithuanian Civil Code which came into force on the 1st of July, 2001 and of article 5 of the Lithuanian Constitution and draws the conclusion that the said articles do not preclude tort liability of the state neither for the wrongdoings of the executive and judicial, nor of the legislative branch of the Republic of Lithuania. According to this, the author attempts to reason her opinion that the commentary of the article 6.271 of the Civil Code of the Republic of Lithuania glossing that it regulates only liability for the harm caused by the acts of the executive and judicial branches is unjustified. Seeking to disclose the position of the judiciary of Lithuania to the analyzed problem, the author discuses the decisions of the Supreme Administrative Court of Lithuania of March 21, 2003 and of June 27, 2003 m. which dealt (or ought to have dealt) with the question of liability of the state for the harm caused by the law later recognized by the Lithuanian Constitutional Court to be unconstitutional.
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Please see Copyright and Licence Agreement for further details.
