Teisės apžvalga / Law Review 2012, nr. 2(9)

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  • Publication
    Privačios detektyvinės veiklos priežiūros teisinio reguliavimo gairės Lietuvoje
    [Guidelines for legal regulation of supervision of private detective activities in Lithuania]
    research article
    Teisės apžvalga = Law review [elektroninis išteklius]. Kaunas : Vytauto Didžiojo universitetas, 2012, nr. 2(9), p. 108-132
    Issues of legal regulation of private detective activities in Lithuania raise several important questions – how certain standards necessary for the provision of private detective services will be established and ensured; and how will the supervision and control of such activities be carried out? A Draft Law on Private Detective Activity registered in the Seimas of the Republic of Lithuania in 2012 raises doubts on the necessity of certain legal provisions provided for in this draft, i.e. is it expedient to licence private detective activities? Since licencing is the most strict means of state intervention in the market, this article examines whether it is expedient to licence private detective activities, analyzes other possible ways of supervising and controlling private detective activities. Regulation of private detective activities in order to protect human rights is impossible without the supervision of such activities. The regulation of supervision balances between the two objectives: striving to protect oneselves from possible law violations that can be done by private detectives and the desire not to make private detective activities unduly restricted and, thus, make them useful for the protection of human rights and legitimate interests. The evaluation of objectives of the introduction of licencing and the attainability of these objectives allows for concluding that the licencing of private detective activities does not fully achieve the goals of consumer protection or the quality of services provided. Even though licencing affects the quality of services in that it reduces the number of individuals who have an impact on inadequate quality of services, on the other hand it significantly restricts competition, which leads to price growth, thus fewer consumers are able to afford such services. [...]
      200  152
  • Publication
    Advokato atlyginimo, priklausančio nuo bylos baigties, reglamentavimas bei problemos Lietuvoje
    [Regulation and problems of the attorney contingency fee in Lithuania]
    research article ;
    Teisės apžvalga = Law review [elektroninis išteklius]. Kaunas : Vytauto Didžiojo universitetas, 2012, nr. 2(9), p. 5-16
    The profession of the lawyer is subject to additional and more demanding standards of professional conduct. Lawyer-client fiduciary relationship determines that attorney’s fee is a matter of professional ethics. Most discussions occur regarding the contingence of the attorney. In some jurisdictions, the contingency fee is allowed and, in some jurisdictions, it is restricted. Especially in the United States, the majority of cases for compensation for heath injury are based on the contingency fee basis. The Code of Conduct for Lawyers in the European Union prohibits agreements with lawyers on the contingency fee basis, socalled pactum de quata litis. The main advantage of the contingence fee agreement is that the right to justice is guaranteed, as indigent persons have a possibility to employ any attorney and do not need to pay for the attorney in advance. The person is obliged to pay to his/her attorney only when the case is successful. Therefore access to justice is not hindered due to lack of finances. The main drawback of the contingency fee is its size. A lawyer may agree with a client on the attorney fees which are disproportionately high in comparison with the attorney’s time spent on the case. This is illustrated by landmark Lithuanian cases against the Marijampolė hospital where the Court of Attorney Ethics declared that the attorney fee equal to 50 % of the outcome of the case is too high. Even though the contingence fee has drawbacks, it should be allowed because, in any case, the attorney fee must be reasonable. But reasonableness is not always enough, therefore it would be recommended to have more detailed regulation of the contingence fee. The legislation should be also clearer and foresee a possibility to get the attorney contingency fee awarded from the losing party. [...]
      412  402
  • Publication
    Ar asmeniui, okupacijos metu vykdžiusiam nusikaltimus žmoniškumui, gali būti taikoma baudžiamoji atsakomybė, jei pagal tuo metu galiojusią nacionalinę teisę tokia atsakomybė nebuvo numatyta?
    [Crimes against humanity during occupation is to be prosecuted applying criminal law if the national law at that time did not foresee such a possibility?]
    research article
    Teisės apžvalga = Law review [elektroninis išteklius]. Kaunas : Vytauto Didžiojo universitetas, 2012, nr. 2(9), p. 55-107
    The destruction of 20 th century occupational regimes and new cases of such aggression leaves an ample space for discussions not only about the rights and duties acquired by the governmental subject but also about how this regime should be judged after the nation had reconstituted its usurped rights and renewed its nationhood. It is especially important in cases of encountering examples of repressions offending the civilized nations’ humanity principles against people in the occupied territories. In such a case there has to be analyzed and legally evaluated not only the policy of the government itself but also raised the issues of criminal prosecution of separate individuals who had implemented it. If the person’s criminal act is in compliance with the repressive policy in the occupied territory, however, there is a reasonable doubt if the person who in one way or another contributed to the implementation of such policy could possibly foresee that consequences of his actions would incur criminal responsibility after the end of the occupation. Moreover, the applicable laws shall not breach the principle nullum crimen sine lege (no crime without law) which means that only the law shall define the criminal actions and punishments thereof. As the occupational government legitimized the violations of human rights or if in the occupied territory there were no legislation that would allow the prosecution of the person who had committed the above mentioned crimes, such a process is possible if only international community determines that a person’s acts in the occupied territory is illegitimate in the point of view of international law. [...]
      73  160
  • Publication
    Neteisėtumo kriterijaus reikšmė pajamų apmokestinime. (II d.)
    [The role of the illegality factor in the taxation of income. (Part II)]
    research article ;
    Teisės apžvalga = Law review [elektroninis išteklius]. Kaunas : Vytauto Didžiojo universitetas, 2012, nr. 2(9), p. 17-35
    The taxation of illegal income is quite common in many foreign countries, but this practice is not yet applicable in Lithuania, though the recent movements of Lithuania’s Finance Minister, when she admitted that all income should be taxed despite it’s source show her positive attitude towards the taxation of illegal income. The article promotes the idea that all personal income, despite its source, should be taxed. The article is divided into two parts: the first one, which is not published here, deals with the problem of defining personal commercial activity itself and the legality of it and the second one examines the problem of the taxation of illegal gains, including the rules of deduction and declaration. The analysis is based on the general terms and definitions of income of Lithuanian law, which defines income quite generally – as all the benefits, received by a person in monetary or other forms. Lithuanian law does not state clearly that, in order to be taxed, personal income has to be only from legal sources. So, in this case, we can say that there is no formal interference in the taxation of illegal income. The main focus is on the one of the oldest countries which has the longest practice in taxing illegal income- the US where in year 1916 the Congress changed the Internal Revenue Code which stated that "gross income means all income from whatever source derived". From that day, the US courts have gone a long way describing what earnings from illegal sources have to be classified as taxable income. [...]
      237  156
  • Publication
    Korupcijos privačiame sektoriuje kriminalizavimo, kvalifikavimo ir įrodinėjimo problemos : kai kurių praktinių pavyzdžių analizė
    [Criminalization, qualification and prooving of corruption in the private sector : analysis of some practical cases]
    research article
    Zaksaitė, Salomėja
    Teisės apžvalga, 2012, nr. 2(9), p. 36-54
    In this article the problems of criminalization, qualification and proving of corruption in the private sector are analyzed. According to practical cases (corruption in mass-media, construction sector and pharmacy), it is studied whether Penal code of the Republic of Lithuania covers corrupt practices in the private sector. Such theoretical-practical analysis lets us identify what and how penal laws, as well as modus operandi of corruption and interpretation of penal laws hinder (or vice versa do not hinder) to implement criminal responsibility for corruption in the private sector. The main problems concerning Lithuanian penal laws are related with the concepts of “public services“ and “big harm”. These attributes are necessary in order to incriminate corpus delicti of bribery and other corruption crimes (especially abuse of position which is the most general corruption related crime). However, there is no explicit interpretation what are to be regarded as public services. What concerns “big harm”, it is complicated to imply this feature to corruption-related crimes mostly because the harm might occur after relatively long period of time and sometimes it might not be clearly seen at all. The most problematic aspect that “big harm” (which might be hardly estimated) is a necessary feature in order to incriminate abuse of position and to separate crimes from disciplinary offences. It is also important to notice that corruption-related crimes might be complex, sophisticated and covert, conveying both private and public sectors and not necessarily against public interests – for instance, one analyzed corruption case in mass media might be considered as extortion.
      226  206