Suchergebnisse

The principle of the separation of powers is one of the main principles in rule of law. It says that all three branches (the legislature, executive and judiciary) have to be separate enough to act independently and to have enough power to control two other branches at the same time. The control is necessary in preserving government from power concentration and lost of liberty. This principle was implemented when framing the governmental system in the USA and was named "checks and balances". Framing the complicated system of the separation and interdependence of powers, the Framers intended to save the nation from the tyranny and to secure the effective functioning of the governmental branches. The Framers were particular about the functions of Congress and the President, because they expected the most danger from the legislature, but did not trust the President also. J. Madison comprehensively justified the necessity of the separation of powers and its constitutional determination in "the Federalist" papers. Constitutional provisions determining the functions of the governmental institutions were adopted for the future changes and to resolve the conflicts arisen. In the long run, it was proved that the Framers were right: both the President and Congress are intended to transcend their functions, but there are the third branch – the Court – to execute its constitutional obligation in solving the conflicts arisen between Congress and the President and "balancing" two other branches. There have been analysed the development of the separation of powers between Congress and the President during the crises in this master thesis. The ninetieth century could be called the century when Congress prevailed (with rare exceptions) in the governmental system of the USA. Eventually, the Presidential power constantly grows in the twentieth century. When balancing two other branches the Court can not execute congressional functions – only Congress itself is able to resist the influence of the executive and to gain its former power back: Congress should balance the executive in the long run. The principle of the separation of powers eventually functions and implements goals established in the Constitution.

The principle of the separation of powers is one of the main principles in rule of law. It says that all three branches (the legislature, executive and judiciary) have to be separate enough to act independently and to have enough power to control two other branches at the same time. The control is necessary in preserving government from power concentration and lost of liberty. This principle was implemented when framing the governmental system in the USA and was named "checks and balances". Framing the complicated system of the separation and interdependence of powers, the Framers intended to save the nation from the tyranny and to secure the effective functioning of the governmental branches. The Framers were particular about the functions of Congress and the President, because they expected the most danger from the legislature, but did not trust the President also. J. Madison comprehensively justified the necessity of the separation of powers and its constitutional determination in "the Federalist" papers. Constitutional provisions determining the functions of the governmental institutions were adopted for the future changes and to resolve the conflicts arisen. In the long run, it was proved that the Framers were right: both the President and Congress are intended to transcend their functions, but there are the third branch – the Court – to execute its constitutional obligation in solving the conflicts arisen between Congress and the President and "balancing" two other branches. There have been analysed the development of the separation of powers between Congress and the President during the crises in this master thesis. The ninetieth century could be called the century when Congress prevailed (with rare exceptions) in the governmental system of the USA. Eventually, the Presidential power constantly grows in the twentieth century. When balancing two other branches the Court can not execute congressional functions – only Congress itself is able to resist the influence of the executive and to gain its former power back: Congress should balance the executive in the long run. The principle of the separation of powers eventually functions and implements goals established in the Constitution.

The principle of the separation of powers is one of the main principles in rule of law. It says that all three branches (the legislature, executive and judiciary) have to be separate enough to act independently and to have enough power to control two other branches at the same time. The control is necessary in preserving government from power concentration and lost of liberty. This principle was implemented when framing the governmental system in the USA and was named "checks and balances". Framing the complicated system of the separation and interdependence of powers, the Framers intended to save the nation from the tyranny and to secure the effective functioning of the governmental branches. The Framers were particular about the functions of Congress and the President, because they expected the most danger from the legislature, but did not trust the President also. J. Madison comprehensively justified the necessity of the separation of powers and its constitutional determination in "the Federalist" papers. Constitutional provisions determining the functions of the governmental institutions were adopted for the future changes and to resolve the conflicts arisen. In the long run, it was proved that the Framers were right: both the President and Congress are intended to transcend their functions, but there are the third branch – the Court – to execute its constitutional obligation in solving the conflicts arisen between Congress and the President and "balancing" two other branches. There have been analysed the development of the separation of powers between Congress and the President during the crises in this master thesis. The ninetieth century could be called the century when Congress prevailed (with rare exceptions) in the governmental system of the USA. Eventually, the Presidential power constantly grows in the twentieth century. When balancing two other branches the Court can not execute congressional functions – only Congress itself is able to resist the influence of the executive and to gain its former power back: Congress should balance the executive in the long run. The principle of the separation of powers eventually functions and implements goals established in the Constitution.

The principle of the separation of powers is one of the main principles in rule of law. It says that all three branches (the legislature, executive and judiciary) have to be separate enough to act independently and to have enough power to control two other branches at the same time. The control is necessary in preserving government from power concentration and lost of liberty. This principle was implemented when framing the governmental system in the USA and was named "checks and balances". Framing the complicated system of the separation and interdependence of powers, the Framers intended to save the nation from the tyranny and to secure the effective functioning of the governmental branches. The Framers were particular about the functions of Congress and the President, because they expected the most danger from the legislature, but did not trust the President also. J. Madison comprehensively justified the necessity of the separation of powers and its constitutional determination in "the Federalist" papers. Constitutional provisions determining the functions of the governmental institutions were adopted for the future changes and to resolve the conflicts arisen. In the long run, it was proved that the Framers were right: both the President and Congress are intended to transcend their functions, but there are the third branch – the Court – to execute its constitutional obligation in solving the conflicts arisen between Congress and the President and "balancing" two other branches. There have been analysed the development of the separation of powers between Congress and the President during the crises in this master thesis. The ninetieth century could be called the century when Congress prevailed (with rare exceptions) in the governmental system of the USA. Eventually, the Presidential power constantly grows in the twentieth century. When balancing two other branches the Court can not execute congressional functions – only Congress itself is able to resist the influence of the executive and to gain its former power back: Congress should balance the executive in the long run. The principle of the separation of powers eventually functions and implements goals established in the Constitution.

In the process of criminalisation of certain offences, the relevant requirements for legislature must be raised, which limit discretion of legislature and do not allow distorting the essence of criminal law. The theory of criminalisation determines these requirements and one of them is the ultima ratio (latin last, final argument, last resort) principle. This principle means that criminal liability, being the most restricting measure in terms of rights and freedoms of persons, must be applied in exceptional cases only, when other legal or non-legal means are not sufficient in order to stop criminality. The content of the ultima ratio principle includes: 1) serious violation of individual, social and state legal interests; 2) absence of alternative influence means for this violation in other legal branches. The content of the ultima ratio 134 principle also encompasses inner (consistency of criminal law system) and outer (the means of criminal law is exceptional when compared with the means of other legal branches) aspects as well as aspects of legislature and implementation of law. The ultima ratio principle is given a different meaning: from the scientific recommendation for legislature to the obligatory constitutional principle. Due to the relation with the defence of fundamental rights and the principle of proportionality, which makes ultima ratio peremptory, the ultima ratio principle is considered as the regulatory provision of law – the legal principle which is related to criminal justice. Since the ultima ratio principle functions, first of all, in legislature, i.e. in the process of criminalization, it must be considered as the substantive special principle of criminal policy.

In the process of criminalisation of certain offences, the relevant requirements for legislature must be raised, which limit discretion of legislature and do not allow distorting the essence of criminal law. The theory of criminalisation determines these requirements and one of them is the ultima ratio (latin last, final argument, last resort) principle. This principle means that criminal liability, being the most restricting measure in terms of rights and freedoms of persons, must be applied in exceptional cases only, when other legal or non-legal means are not sufficient in order to stop criminality. The content of the ultima ratio principle includes: 1) serious violation of individual, social and state legal interests; 2) absence of alternative influence means for this violation in other legal branches. The content of the ultima ratio 134 principle also encompasses inner (consistency of criminal law system) and outer (the means of criminal law is exceptional when compared with the means of other legal branches) aspects as well as aspects of legislature and implementation of law. The ultima ratio principle is given a different meaning: from the scientific recommendation for legislature to the obligatory constitutional principle. Due to the relation with the defence of fundamental rights and the principle of proportionality, which makes ultima ratio peremptory, the ultima ratio principle is considered as the regulatory provision of law – the legal principle which is related to criminal justice. Since the ultima ratio principle functions, first of all, in legislature, i.e. in the process of criminalization, it must be considered as the substantive special principle of criminal policy.

The Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights is the very first EU legislation aiming to approximate the legislative systems and to assimilate disparities in the field of intellectual property rights enforcement. In this paper we analyze the provisions of Directive 2004/48/EC related to the measures, procedures and remedies of intellectual property rights enforcement. Also, we evaluate the implementations of these provisions into the national legislatures of the EU Member states. The analysis focuses on Lithuania and some of the EU member states that have old traditions and essential differences on the matter: the United Kingdom, Germany and France. We do not attempt to examine all the civil remedies nor to describe thoroughly the practices of application of the civil remedies in the Member States in question; instead, the main attention in this paper is focused on the revelation of the legal nature of corresponding measures, procedures and remedies, and evaluation of appropriate implementations of Directive's provisions into the selected legislature systems. The paper references various international, regional and national legislations of the four states, judiciary practices, travaux préparatoires, jurisprudence; as well as various studies, papers and publications of Lithuanian and foreign authors.

The Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights is the very first EU legislation aiming to approximate the legislative systems and to assimilate disparities in the field of intellectual property rights enforcement. In this paper we analyze the provisions of Directive 2004/48/EC related to the measures, procedures and remedies of intellectual property rights enforcement. Also, we evaluate the implementations of these provisions into the national legislatures of the EU Member states. The analysis focuses on Lithuania and some of the EU member states that have old traditions and essential differences on the matter: the United Kingdom, Germany and France. We do not attempt to examine all the civil remedies nor to describe thoroughly the practices of application of the civil remedies in the Member States in question; instead, the main attention in this paper is focused on the revelation of the legal nature of corresponding measures, procedures and remedies, and evaluation of appropriate implementations of Directive's provisions into the selected legislature systems. The paper references various international, regional and national legislations of the four states, judiciary practices, travaux préparatoires, jurisprudence; as well as various studies, papers and publications of Lithuanian and foreign authors.

Institutions-organizations and institutions-rules (norms), levels of institutionalization and its influence on political development of political system, constitutions and constitutional interpretation, structural-functional characteristic of the main political institutions (parties, party and electoral systems, legislatures and executive power, public administration, interest groups, local governance, judicial and political communication institutions), variuos types, models of these institutions and activity, interaction between political institutions and their influence on real politics, institutional engineering, institutionalization of the political institutions, democratization and democratic consolidation processes – all these questions were discussed in this methodical book.

Institutions-organizations and institutions-rules (norms), levels of institutionalization and its influence on political development of political system, constitutions and constitutional interpretation, structural-functional characteristic of the main political institutions (parties, party and electoral systems, legislatures and executive power, public administration, interest groups, local governance, judicial and political communication institutions), variuos types, models of these institutions and activity, interaction between political institutions and their influence on real politics, institutional engineering, institutionalization of the political institutions, democratization and democratic consolidation processes – all these questions were discussed in this methodical book.

Institutions-organizations and institutions-rules (norms), levels of institutionalization and its influence on political development of political system, constitutions and constitutional interpretation, structural-functional characteristic of the main political institutions (parties, party and electoral systems, legislatures and executive power, public administration, interest groups, local governance, judicial and political communication institutions), variuos types, models of these institutions and activity, interaction between political institutions and their influence on real politics, institutional engineering, institutionalization of the political institutions, democratization and democratic consolidation processes – all these questions were discussed in this methodical book.

A main let to apply tort liability to the state is the principle of sovereign immunity (or state immunity; or legislator immunity), derived from Medieval English law, which says that government is immune from tort liability. Today remains of sovereign immunity doctrine usually is justified by: the importance of protecting government treasuries; separation of powers; the absence of authority for suits against the government; the existence of adequate alternative remedies; strengthening the position of elected politicians; and tradition. The doctrine of immunity is inconsistent with the main principles, recognized by democratic countries, so has no place in democracy and should be repealed entirely. The legislator is a subject, who has a right to make a final and unchallenged decision in the law making process. In Lithuania there are two legislators: the Parliament (Seimas) and the Nation. Competence and discretionary powers of legislature are limited by the Constitution and obligations of the state under the international and European Community law. By international contracts, such as European Convention of Human rights, Lithuania is obliged to confer the main rights to individuals in its jurisdiction. The national law that violates such provisions must be held unlawful, but there are no national institutions that have a competence to state that violation. Individuals may get remedy only if the European Court of Human Rights states the violation; in the same judgment the Court will grant the remedy. If such unlawful law is not changed for some time, and individual because of that suffers more damage, national court should grant a remedy. Member State liability for breaches of Community law finds its origins exclusively in the case law of the European Court of Justice. The Court has held that such liability extends to all breaches of EC law, even if the breach which gave rise to the damage is attributable to the legislature. Now liability will be recognized if the rule of law is intended to confer the rights on individuals, the breach of Community law is "sufficiently serious" and there is direct causal link between the breach of obligation and damages sustained. The process and other issues, which are not governed by EC law, are governed by national law, but national rules are subject to principles of equivalence and effectiveness. The law, which is stated as being inconsistent with Constitution by Constitutional Court, is held as an unlawful act of legislature. National court should grant a remedy for damage, sustained because of such law.

A main let to apply tort liability to the state is the principle of sovereign immunity (or state immunity; or legislator immunity), derived from Medieval English law, which says that government is immune from tort liability. Today remains of sovereign immunity doctrine usually is justified by: the importance of protecting government treasuries; separation of powers; the absence of authority for suits against the government; the existence of adequate alternative remedies; strengthening the position of elected politicians; and tradition. The doctrine of immunity is inconsistent with the main principles, recognized by democratic countries, so has no place in democracy and should be repealed entirely. The legislator is a subject, who has a right to make a final and unchallenged decision in the law making process. In Lithuania there are two legislators: the Parliament (Seimas) and the Nation. Competence and discretionary powers of legislature are limited by the Constitution and obligations of the state under the international and European Community law. By international contracts, such as European Convention of Human rights, Lithuania is obliged to confer the main rights to individuals in its jurisdiction. The national law that violates such provisions must be held unlawful, but there are no national institutions that have a competence to state that violation. Individuals may get remedy only if the European Court of Human Rights states the violation; in the same judgment the Court will grant the remedy. If such unlawful law is not changed for some time, and individual because of that suffers more damage, national court should grant a remedy. Member State liability for breaches of Community law finds its origins exclusively in the case law of the European Court of Justice. The Court has held that such liability extends to all breaches of EC law, even if the breach which gave rise to the damage is attributable to the legislature. Now liability will be recognized if the rule of law is intended to confer the rights on individuals, the breach of Community law is "sufficiently serious" and there is direct causal link between the breach of obligation and damages sustained. The process and other issues, which are not governed by EC law, are governed by national law, but national rules are subject to principles of equivalence and effectiveness. The law, which is stated as being inconsistent with Constitution by Constitutional Court, is held as an unlawful act of legislature. National court should grant a remedy for damage, sustained because of such law.

The dissertation examined whether the legal regulation of mediation carried out by a notary in national law allows the unfoldment of the Latin notarial system potential of the notary to provide mediation services and if with such a legal regulation all mediation application possibilities in notarial activities are used, together debating, if the established legal regulation allows to develop and encourages the application of mediation in notary activity. In the examination of the presented problem, the dissertation paper distinguishes external and internal mediations in the activity of a notary, determining the possible models for the existence of mediation in the activity of a notary as well as offers were formed for the legislature, providing the projects for the amendments to the law, as well as to the Lithuanian Chamber of Notaries, seeking the development of applying mediation in notarial activity.

The dissertation examined whether the legal regulation of mediation carried out by a notary in national law allows the unfoldment of the Latin notarial system potential of the notary to provide mediation services and if with such a legal regulation all mediation application possibilities in notarial activities are used, together debating, if the established legal regulation allows to develop and encourages the application of mediation in notary activity. In the examination of the presented problem, the dissertation paper distinguishes external and internal mediations in the activity of a notary, determining the possible models for the existence of mediation in the activity of a notary as well as offers were formed for the legislature, providing the projects for the amendments to the law, as well as to the Lithuanian Chamber of Notaries, seeking the development of applying mediation in notarial activity.