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Tag Archives: Lithuanian law

The Nov. 11, 2013 issue of Kauno Diena contains a front page article on a young man who, when he was 18 but yet in high school, retaliated (allegedly) against a young woman classmate who he claims had verbally abused him on numerous occasions.

The young man with an accomplice crushed a couple of raw eggs and rubbed them into the head and hair of the young woman, or so it is reported. This occurred in a public place, not at school.

He was brought to trial for this: a criminal prosecution. The judge apparently arranged for what is provided for in the law in LT: a settlement. Instead of receiving a jail term (or, again, so it is reported), the young man was to pay 3000 Lt to the woman.

(Just to put it in perspective: that sum is more than the take-home salary of most attorneys in Lithuania.)

Apparently the young man had never been in trouble with the law before.

I don’t have too much trouble with that result, although I do feel sympathy for the young man. Verbal abuse, including slander, can be very, very painful. More painful than a punch in the nose. I’ve been punched in the nose – in karate class, by mistake. It hurts, but it’s nothing, because there was no intent to harm; indeed, the puncher was very much concerned about all the red stuff coming out of my nostrils. Way more so than me, actually, as I had grown used to it! But about the young man and high school: one can’t get away. One is trapped at school. A punch in the nose or eggs in the hair is an assault. But meanness, especially if repeated, is not so easily reachable, yet does as much if not more harm.

But the situation has a few more facts. The young man alleges that the girl’s father came to his home and hit him in the face with his fist, then went outside and damaged the young man’s motorbike. This allegedly occurred right after the egg incident.

The young man is described in the paper as being upset that the police are not prosecuting the young woman’s father.

And here is where it gets dicey. And juicy. The police are described as saying that this kind of thing is why there is something called a private prosecution.

A private prosecution is a strange legal device by which one puts forth documentation and pleadings as if one were the prosecutor, who is not involved. It is a criminal prosecution, yet carried out privately.

I have to say here that I think there are two very ‘bad’ things about this story. One is that there could be a ‘settlement’ in which a fine is paid not to the government, but to the other party. That is the realm of civil law. (And in a civil case, it would have been easy for the young man to counter-claim for damages done both to him physically and to his motorbike.) Obviously, the settlement did not aim to settle the entire panoply of issues deriving from the incident (which again could be done more readily in the civil setting).

The second point is more or less a reiteration of the first from another perspective. I do not think the criminal justice system is the place which should handle the young man’s potential suit against the young woman’s father. Justice, I think, will not be well-served. The alleged actions of the father are much more of a private nature than of a public one (especially given that significant time has elapsed since their alleged occurrence).

In short, I think the possibility of dropped charges in relation to a monetary settlement is not a good idea and should not be part of the criminal process, and I think private prosecution similarly should not exist. These legal ‘institutes’ are too prone to producing very strange results.

Well, I’ve  seen a few things in my day. This is a new one on me.

In order for a person to be a candidate, most systems require signatures to be collected. Here is a link to some requirements in the various U.S. states. The idea is that signatures are checked against those on voter registration cards or other records in order to eliminate fraud.

These are the basic requirements in normal jurisdictions:

  • “The signature must be of a registered voter, as established by comparing the name to that state’s list of registered voters.
  • The signature on the petition must match the signature on the voter registration card filed when that voter registered to vote.
  • The signature must not be a duplicate signature. This occurs when a voter signs the same petition more than once. If this happens, in some states, one signature counts and the other(s) don’t. In other states, if a voter signs more than once, none of his or her signatures count.” (From Ballotopedia, “Valid Signature.

Here we have a link to a news article about a potential candidate whose submitted paperwork did not match, allegedly, the signature requirements and who was therefore prevented from running for the Lithuanian parliament (elections are coming up in October of 2012).  That’s not really news, nor is it of much interest.

Except for one thing.

The authorities admit that they do not check signatures for authenticity; that is, for fraud. They claim they have nothing to check them against! (“Rašysenos ekspertė Jūratė Kurgonienė pabrėžė, kad ji netikrino parašų autentiškumo, nes neturėjo tų asmenų parašų pavyzdžių.”)

This has been the situation for years, and no one cares.

Yet – they do check to see if the circulator filled out the forms him or herself. THAT’s a no-no. Though how it impacts on fraud, if at all, is highly questionable. Similar requirements that add nothing to the equation have been invalidated in various U.S. states.

Again, the problem is that there is considerable formality, which impacts negatively on a citizen’s right to participate in the democratic process. The form to be filled out is difficult – it requires one’s governmental ID number, the registered address, and all in boxes. This is not easy for those who are older, have difficulties seeing, or simply have trouble writing, whether through injury or other infirmity.

So, again, we have the semblance of order, but no substance.

Or, to be more specific, we have a set of rules which are expedient  for the rule-maker. It is true that the rule in place would find certain unsophisticated forgers: the rule is that the petition signer himself must fill out the entire form, and therefore if a party fills out a number of forms, and forges the signatures thereon, the fraud might be easily discerned merely by comparing forms submitted for one candidate.

Thus, the rule is quite expedient for the government.

But it undoubtedly impinges upon the citizenry’s ability to participate in the voting process. It also punishes the innocent signature collector (and his candidate) who helped fill in a form for a person who had physical difficulty doing so.

The method relied upon also does not and cannot find the following type of fraudulent signature: the type in which the entire form and the signature are inauthentic but unique (they do not match the handwriting on other forms submitted by the same candidate).

Thus, we have the imitation of order, expedient for the election commission to administrate, but which is unjust. As always, in Lithuania, the fact that the process is unjust is irrelevant. Justice vs. expediency. Bet on expediency every time.

In a report entitled „When Employers Disappear“ published Monday, Nov. 22, 2010, in the Lithuanian weekly Apskaitos aktualijos, we are told that company presidents and sole proprietors often disappear, leaving their employees on their own. „These, not being able to terminate their contracts of employment (!!) continue to work without pay (!!!) or do not work, but are unable to register with the Labor department and cannot obtain unemployment compensation.“ This is because they are … still employed and they can‘t get unemployed, because there is no one to unemploy them. According to the report by Algirdas Bartkevicius, the Lithuanian Labor inspection says that hundreds of such „hanging“ employees contact them each year.

How can this be described? Supreme lunacy? Are these people aficionados of the theatre of the absurd?

Not really. It is the Soviet legal mentality (and legal theory) in action. Note that there is not a single, not one, law or other legal act compelling this outcome. Under the very same Labor Code referenced in the article, a person can certainly quit his job, and it is clearly a unilateral juridical (legal) act by which it is done. That means that it is done entirely at the will of the employee. Of course this is so: it can‘t be any other way, because forced servitude is slavery. Which all normal constitutions prohibit.

But not in practice. And notably, this time, it‘s not the courts who are the guilty ones. This particular ‚case‘ illustrates that the problem goes well beyond the courts. The government is suffused with this mentality. It is the clerks who are treating these people in this horrid way. They are depriving them of their unemployment benefits, to be sure, but what is worse, I think, is that they are treating them just like the Soviets used to. Like ‚people‘ with no rights. Children, deformed, of a lesser god, to be offered up upon the alter of unholy anti-law.

And this is going on in independent Lithuania twenty years after the restoration of independence!

It has been reported that a trial court in Lithuania held two officers of a close corporation personally liable to the tune of about 5000 USD ostensibly for what is known as insolvent trading.

The case was brought by UAB Transvera against two officers of UAB Dovlitas.

Although sometimes the liability of a director in such a situation is described as being fiduciary, it really is not. It is delictual in nature.
The idea is that a person on a board who either knows or should know that the company is insolvent should not allow it to incur a debt, obviously because it will not be paid. Some commentators criticize the entire idea: as one Australian expert puts it,

Those who oppose the duty argue that it has the effect of making
directors unduly risk-averse which can result in directors too quickly putting companies
into voluntary administration or liquidation for fear of personal liability.

Depending upon the legal regime in place, the question turns on what the knowledge, imputed or otherwise, has to be. Is it merely the suspicion that a company will become insolvent by the time the debt is due? Is it actual insolvency at the time of the incurring of the debt? The former is a very strict standard. Standards were loosened recently due to the economic crisis in Germany …

In all of the countries whose law I surveyed in writing this piece, such as Ireland, Singapore, Australia and Germany, the basis of the ‘legal institute’ is statutory.

In the particular Lithuanian case, it appears that the company (UAB Dovlitas) may have been solvent at the time the debt was incurred. The reports say that the company was considering bankruptcy at that time. The court states that this fact, that is, that bankruptcy was being considered, ‘creates real conclusions’ that the debt would not be paid.

What is particularly of interest is that there is no statutory basis for the court’s decision. The court cited LT Civil Code (section 2.5(3)) that states:

When a legal entity cannot perform its obligation because of the unlawful actions of a participant, the participant is subsidiarily liable for the obligation of the legal entity.

A ‘participant’ is defined in the Code (sec. 2.45) as a party with an ownership interest, such as a shareholder.

Obviously, the definition of participant is being stretched here. It does not include directors. An argument could be made that directors are agents of the shareholders … but this gets weird, too; the shareholders should not be liable for insolvent trading.

The second problem is that Code states that the liability of the participants is not solidary, but subsidiary.

The Lithuanian court’s decision is interesting. But the facts ought to be rock-solid in imposing liability with no statutory basis: actual knowledge, undebatably insolvent, and so forth. Here the language used by the court, as reported, does not quite come up to snuff.

The link is here.

P.S. It’s another question why there is no statute regarding the matter in place.