| Abstract [eng] |
The aim of the article is to reveal and assess the possible implementation of the procedure of preliminary inquiry in Lithuanian civil procedure law. To achieve this goal, two tasks are set in the article: 1) to disclose and review the implementation of preliminary inquiries in other jurisdictions; 2) to disclose and assess the potential normative-legal obstacles to the implementation of preliminary inquiries in Lithuanian civil procedure. These potential obstacles include the compatibility of preliminary inquiries with the requirements of European Union law for effective legal protection, the constitutional prohibition on the Supreme Court of Lithuania from giving advice to the lower courts, and the requirements of Civil Procedure Code of the Republic of Lithuania. The research carried out has shown that the preliminary inquiry is a procedural instrument that allows the court hearing a case to refer to a higher court a specific question of law relevant to a particular case. The various forms of preliminary inquiry can be found both at supranational level, i.e. in EU law, and at national level, e.g. in the Netherlands, France, the USA, etc. As the experience of other countries has shown, the preliminary inquiry has a number of positive features – it ensures that legal issues of public interest reach the Supreme Courts more quickly, helps to ensure more effective uniformity of case law, and promotes reconciliation between the parties. The analysis of potential legal obstacles to the prospects of preliminary inquiry in Lithuanian civil proceedings has led to the conclusion that preliminary inquiry is compatible both with the requirements of EU law for effective legal protection, the constitutional prohibition on the Supreme Court of Lithuania, and the Code of Civil Procedure. However, the analysis shows that, in order to harmonise the various legal requirements, the preliminary inquiry in the Lithuanian civil procedure should be characterised by certain features: 1) the preliminary inquiry process must enable the Supreme Court to decide on the legal issues in the specific case and not in the abstract legal level; 2) the important role of the requesting courts must be preserved, i.e. lower courts should retain a sole discretion to decide whether a question should be referred to the Supreme Court; 3) the Code of Civil Procedure should establish criteria for the selection of preliminary inquiries, which would ensure that only the most significant and important questions of law are brought before the Supreme Court; 4) the participants in the proceedings should be given the opportunity to state their position on both the need for a preliminary inquiry and the manner in which the preliminary inquiry should be responded to; and 5) the Supreme Court should prioritise the examination of preliminary inquiries. |
