Laikinųjų apsaugos priemonių taikymas civiliniame procese : monografija

This book is intended to analyse the application of interim measures (also known as provisional measures, protective measures, or interlocutory measures) in Lithuanian civil proceedings. Recently, the importance of interim measures has increased significantly – not only in Lithuania, but also around the world. However, the Lithuanian legal doctrine has not yet provided a detailed analysis of this matter. Lithuanian legal regulation, as is often the case in other countries, provides only very vague guidelines on the application of these measures; therefore, most rules are developed through case law. The first part of this monograph analyses the origins and purpose of interim measures in Lithuanian and foreign law, comparing them with other similar legal concepts and constructs. The authors also analyse the links between interim measures and various institutes in Lithuanian procedural and substantive law. For example, as regards procedural law, it is stressed that, although the relationship between interim measures and compulsory mediation appears at first sight to be contradictory, there is an attempt to reconcile these two institutes in the case law. As regards substantive law, the authors note that sequestration in substantive law is similar, but that these two elements should not be equated in Lithuania. Finally, it is established that the application of a hypothec on assets does not always eliminate the need for asset protection measures (seizure of assets), as the existence of a hypothec only makes the transfer of property more difficult. The second part of the monograph distinguishes the prerequisites and conditions for the application of interim measures, discusses the principles of the application of interim measures, and presents the procedural aspects of interim measures in detail. In Lithuania, the main principles governing the application of interim measures are cost effectiveness, proportionality, and fairness. In addition, courts often distinguish the criterion of relatedness (connectivity), which, although not a principle, represents a requirement that the requested interim measure must be related to the claimant’s claim in court. Lithuanian law requires the demonstration of two commutative con- ditions for the application of interim measures: the claim must be prima facie justified, and there must be an imminent risk. The first condition is relatively easy to prove in court. However, the second condition can mean either a threat to enforcement (e.g., if the defendant intends to dissipate their assets) or another kind of risk related to the rights and interests of the parties (this is particularly the case in individual proceedings such as insolvency proceedings, public procurement cases, family proceedings, etc.). In addition, individual procedural issues relating to interim measures are analysed, such as the modification of interim measures, the revocation of interim measures, and the submission of security for possible damages resulting from interim measures. The third part of this work is devoted to an analysis of specific interim measures and their application in Lithuania. Based on the functional approach, there is no reason to apply the same rules to all possible interim measures, as their intended purposes may differ. One of the most common measures used in Lithuanian courts is seizure of assets. This type of measure is applied if the defendant is proven to be acting in bad faith – that is, seeking to avoid the enforcement of a future court judgment. By contrast, a different type of interim measure – an entry in the public register prohibiting the transfer of ownership – may be applied in the absence of bad faith on the part of the defendant, but it must be clear from the context of the case that the claimant is legitimately seeking to recover the disputed property. Lithuanian civil procedure does not provide for an exhaustive list of measures, so the court has the right to impose measures that are not expressly provided for by the law, but which are justified in the particular circumstances of the case. The last part of the monograph discusses the peculiarities of the application of interim measures in individual categories of cases – namely, cases relating to insolvency, public procurement, intellectual property, company law, and family law. In insolvency proceedings, it has been observed that interim measures have particularities depending on the stage of the insolvency proceedings at which interim measures are sought, and that it is not the individual interest of each creditor that is important, but the collective interest of all creditors. Public procurement cases are characterised by the predominance of the public interest, and interim measures must therefore comply with the public interest requirement. The application of interim measures in intellectual property cases is essentially transposed from current EU legislation. Lithuanian courts are fairly flexible in their interpretation of national rules in order to ensure the supremacy of EU law in these matters. As regards cases involving company law and shareholders’ interests, the authors highlight the increasing need for interim measures in shareholder disputes to be applied in a way that also safeguards the interests of the company itself. Finally, when applying these measures in family cases, the courts always give priority to the best interests of the child. The court has the power to impose these measures on its own initiative (without a request from the applicant), and these measures may also coincide with the subject-matter of the action (e.g., by ordering provisional maintenance for the child).