| Abstract [eng] |
Provisional Interim Measures: Occuring Issues of Application in Civil Procedure Interim measures are an institute of civil procedure law which can be used by the parties to proceedings in order for the judgment to be enforced objectively. Although the conditions for the application of this institute in the regulation and the rules established by the case law are quite well established, the courts still make mistakes in applying these measures. In order to reveal the problems of application of interim measures in civil proceedings, first of all, the principles and bases of application of these measures are analyzed. Apart from the prima facie validity of the claim and the conditions for threatening the execution of the court decision, in accordance with the case law of the Lithuanian Court of Appeal, the plaintiff must prove the defendant's dishonesty. In the opinion of the author of the work, this rule of unfairness is incorrectly applied in the practice of Lithuanian courts. Further analysis of the application of interim measures the different measures applied in the cases, analyzes the trends and sequence of their application in practice. For example, an attachment of immovable property should be applied first, and cash should be seized last, if it concerns the economic and commercial activities of the company. In practice, in the absence of clear rules on restrictions on the rights of third parties by way of interim measures, the application of those measures to third parties is analyzed. In certain categories of cases, the regulation of interim measures is specific - the court may be more active in applying measures, such as ex officio measures. However, courts rarely take measures on their own initiative. In public procurement cases, the court may waive the measures if this would protect the public interest. The need for measures also arises at a stage when the action has not yet been brought before a court, but the law provides for a mandatory pre-litigation procedure. Problematic aspects of this stage are analyzed, including cases of mandatory mediation. In the practice of the Lithuanian Court of Appeal, rules have been formed according to which, in the opinion of the author of the work, the procedural law could be supplemented with the necessary provisions, thus allowing persons to use the measures at this stage. The application of interim protection measures at the European Union level is also analyzed, namely by analyzing the positive and negative aspects of the Brussels I bis Regulation, as well as the tendencies of applicability of the European Account Preservation Order in Lithuanian court practice. The main problem with the application of interim measures in the Brussels Ibis Regulation is that the defendant must nevertheless be heard before the order for interim measures is enforced. Although the European Account Preservation Order Regulation fills many of the gaps available to Brussels I bis in the context of interim measures, according to Lithuanian case law, the procedure proposed by this Regulation in Lithuania is rather difficult to use as courts often refuse. |
