| Abstract [eng] |
In 2004 the Supreme Court of Lithuania ruled that a claim for reimbursement of damages done by abuse of civil procedure (Article 95, paragraph 1 of Code of Civil Procedure) is to be treated as being of procedural and not of substantive (material) character, is indispensably related with civil case under adjudication and should be dealt with in this same case. However, the analysis done by the author reveals that this statement is not correct. Claim for reimbursement of damages, incurred due to abuse of civil procedure, is first of all of substantive nature. In essence, it is a claim for tort liability. By a separate claim it can be filed in a new case. Based on the inference referred to above, the author puts forward some remarks concerning procedural aspects of dealing with this claim. Firstly, he argues that the claim for reimbursement of damages inflicted by abuse of procedure should not be exempted from stamp duty, because encouragement of such actions (by exempting them from stamp duty) should not be desirable. Secondly, the law should state that in the case that is already under adjudication, the claim for damages inflicted by abuse of civil procedure must be filed until the decision of a court to set a date for the hearing of a case is adopted. Subsequent filing of this claim in the same case might be allowed only if a party against which it is brought agrees, if the court considers that it would not protract hearing of a case, or the necessity to bring this claim has emerged later. Thirdly, filing of this claim in a case that is already under adjudication shall not affect jurisdiction of this case. In a new case this claim should be brought according to the general rules of amenability, including an opportunity to bring it before a court where the harm has been done or the residence of the claimant is situated.Fourthly, if a main claim is decided without the judgment of the court on its substance that should not preclude adjudication of the claim for damages of abuse. Main claim and claim for damages is to be treated as relatively separate ones. |
