Civil Code of the Republic of Lithuania

Type: Code Number: VIII-1864 Date: 07.18.2000 Language: English
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07.18.2000 Legal act adopted by - Seimas of the Republic of Lithuania >>
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CIVIL CODE OF THE REPUBLIC OF LITHUANIA

 

BOOK ONE

GENERAL PROVISIONS

 

Part I

Civil laws and their applicatION

 

Chapter I

Civil laws and the relationshipS theY regulate

 

Article 1.1. Relationships regulated by the Civil Code of the Republic of Lithuania

1. The Civil Code of the Republic of Lithuania shall govern property relationships and personal non-property relationships related with the aforesaid relations, as well as family relationships. In the cases provided for by laws, other personal non-property relationships shall likewise be regulated by this Code.

2. The provisions established by this Code shall apply to property relationships based on the legal subordination of persons to state institutions and directly resultant from their exercise of functions of state power (realization of subordination), or from the performance of personsí obligations established by laws towards the state, or from the infliction of administrative or criminal sanctions established by laws, including relationships in the field of taxation and other obligatory payments or dues to the state or to its institutions, also in the field of the state budget, as well as to any other relationships governed by the provisions of public law to the extent that these relationships are not regulated by the relevant laws, also in the cases when it is expressly prescribed by this Code.

3. Labour relationships shall be regulated by special laws. The provisions of this Code shall apply to labour relations to the extent that they are not regulated by special laws.

 

Article 1.2. Principles of legal regulation of civil relationships

1. Civil relationships shall be regulated in accordance with the principles of equality of their subjectsí rights, inviolability of property, freedom of contract, non-interference in private relations, legal certainty, proportionality, and legitimate expectations, prohibition to abuse a right, as well as the principles of comprehensive judicial protection of civil rights.

2. No civil rights may be limited, except in the cases established by laws, or on the basis of a court judgment made in accordance with laws, where such limitation is necessary to protect public order, the principles of good morals, likewise the health and life of people, property of persons, their rights and lawful interests.

 

Article 1.3. Sources of civil law

1. The sources of the Civil law shall be the Constitution of the Republic of Lithuania, the present Code, other laws and international treaties of the Republic of Lithuania.

2. In the eventuality of contradictions between the present Code and other laws, the provisions of this Code shall apply, except in cases where this Code gives priority to the provisions of other laws.

3. Civil relationships may be regulated by the decisions of the Government and legal acts of other state institutions only in the cases and to the extent expressly indicated by laws. Where legal acts of the Government or those of the other state institutions contradict the provisions of the present Code or the norms of other laws, the provisions of the Civil Code, or those of the other laws shall prevail.

4. A court has the right to declare a legal act or a part thereof void if it contradicts the Civil Code or another law in those cases where the supervision of the conformity of this act to the Constitution or to other laws is not within the competence of the Constitutional Court. The court, having recognized such a legal act to be void, shall within 3 days send a copy of its judgement to the institution or the official that has passed the legal act concerned. The res judicata court judgement shall be published in ďValstybŽs ĢiniosĒ (ďThe Official GazetteĒ).

 

Article 1.4. Customs

1. In the cases established by laws or agreed on in contracts, civil relationships shall be regulated by customs. 

2. Customs may not be applied if they are contrary to the mandatory legal norms or to the principles of good faith, reasonableness and justice.

 

Article 1.5. Application of the criteria of justice, reasonableness and good faith

1. In exercise of their rights and performance of their duties, the subjects of civil relationships shall act according to the principles of justice, reasonableness and good faith.

2. In the cases when laws do not prevent subjects of civil legal relationships from determining their mutual rights and duties upon agreement between themselves, these subjects shall act in accordance with the principles of justice, reasonableness and good faith.

3. If laws or an agreement between the parties provide for certain issues to be decided by a court according to its discretion, the court shall act in accordance with the principles of justice, reasonableness and good faith.

4. In interpreting and applying laws, the court shall be guided by the principles of justice, reasonableness and good faith.

 

Article 1.6. Ignorance of laws or improper understanding thereof

Ignorance of laws or improper understanding thereof shall not exempt from the application of the sanctions established therein, and shall not justify the failure to comply with the requirements of laws, likewise improper compliance therewith.

 

Article 1.7. The effect of civil laws

1. Civil laws and the other legal acts regulating civil relationships shall enter into force only upon their publication within the procedure established by the laws.

2. Civil laws and other legal acts regulating civil relationships shall have no retroactive effect.

 

Article 1.8. Analogy of a statute and law

1. Civil relationships not regulated by the norms of the Civil law shall be governed by civil laws that regulate similar relationships (analogy of statute).

2. In absence of relevant civil laws regulating similar relationships, general principles of law shall be applied (analogy of law).

3. Special norms, i.e. those establishing exceptions to general rules, may not be applied by analogy.

 

Article 1.9. Principles of interpretation of the Civil Code provisions

1. In order to ensure the integrity of the present Code and the conformity of its separate structural parts, the provisions of this Code in the process of their application shall be interpreted by taking into account the structure and system of this Code.

2. The words and word combinations used in this Code shall be interpreted according to their general meaning, except in those cases where it is clear from the context that a word or word combination is used in a special Ė legal, technical or any other Ė meaning. In the cases of non-conformity between the general and the special meaning of a word, priority shall be given to the special meaning.

3. In determining the right meaning of an applicable norm, the purposes and tasks of the Civil Code and the norm concerned shall be taken into consideration.

 

Chapter II

Private international law

 

Section one

General provisions

 

Article 1.10. Application of foreign law

1. Foreign law shall apply to civil relationships where it is so provided for by the international treaties of the Republic of Lithuania, agreements between the parties or the laws of the Republic of Lithuania.

2. A reference to foreign law shall include all the provisions applicable to the facts of a case under that law. The application of a provision of foreign law may not be precluded solely because of the provision being attributed to public law.

3. A reference to an applicable foreign law means a reference to the national material law of the state concerned, but not a reference to the private international law of that state, except in cases provided for by this Code.

4. Where the legal system of the state to which the renvoi is made by the provisions of this Code comprises different legal systems based on the criteria of division into several territorial units, a reference to an applicable foreign law shall mean a reference to the legal system of the relevant territory determined in accordance with the criteria established in the law of that foreign state.

5. Where the legal system of the state to which renvoi is made by the provisions of this Code comprises several legal systems applied to different categories of persons, the applicable legal systems shall be determined in accordance with the criteria established in the law of that foreign state.

6. Where the criteria foreseen in paragraphs 4 and 5 of this Article may not be identified within the scope of the applicable foreign law, the law of the legal system to which the relevant case is most closely connected shall apply.

 

Article 1.11. Limitation of the application of foreign law

1. The provisions of foreign law shall not be applied where the application thereof might be inconsistent with the public order established by the Constitution of the Republic of Lithuania and other laws. In such instances, the civil laws of the Republic of Lithuania shall apply.

2. Mandatory provisions of laws of the Republic of Lithuania or those of any other state most closely related with a dispute shall be applicable regardless of the fact that another foreign law has been agreed upon by the parties. In deciding on these issues, the court shall take into consideration the nature of these provisions, their purpose and the consequences of application or non-application thereof.

3. In accordance with this Code, the applicable foreign law may not be given effect where, in the light of all attendant circumstances of the case, it becomes evident that the foreign law concerned is clearly not pertinent to the case or its part, with the case in question being more closely connected with the law of another state. This provision shall not apply where the applicable law is determined by the agreement of the parties.

 

Article 1.12. Determination of the content of foreign law

1. In the cases established by the international treaties of the Republic of Lithuania or by the laws of the Republic of Lithuania, the application, interpretation and determination of the content of foreign law shall be performed by the court ex officio (on its own initiative).

2. In the instances where the application of foreign law is established upon agreement between the parties, the burden of proof in relation to the content of the applicable foreign law in accordance with its official interpretation, practice of application and the law doctrine in the relevant foreign state, shall be imposed on the disputing party that refers to the foreign law. Upon request of the disputing party, the court may provide assistance in collecting information on the applicable foreign law.

3. If the court or the disputing party that refers to foreign law fails to perform the obligation indicated in paragraphs 1 and 2 of this Article, the law of the Republic of Lithuania shall apply.

4. In the exceptional cases where it is necessary to take immediate interim measures to protect the rights or the property of a person, the court may decide on the urgent questions by applying the law of the Republic of Lithuania pending the determination of the law applicable to the dispute and the content thereof.

 

Article 1.13. International treaties

1. Where the provisions established in the international treaties of the Republic of Lithuania are different from those determined by the present Code and other laws of the Republic of Lithuania, the provisions of the international treaties of the Republic of Lithuania shall apply.

2. The international treaties of the Republic of Lithuania shall apply to civil relationships directly, except in cases where an international treaty establishes that a special national legal act is necessary for its application.

3. The provisions of international treaties shall be applied and interpreted in accordance with their international character and the necessity to guarantee a unified interpretation and application thereof.

 

Article 1.14. Referring back and referring to the law of a third state (renvoi)

1. If the applicable foreign law refers back to the Lithuanian law, that reference shall be observed only in the instances provided for by this Code or the foreign law.2. If the applicable foreign law refers to the law of a third state, that reference shall be observed only in the instances provided for by this Code or the law of the third state.

3. If in the matters of determining the civil legal status of a person, the applicable foreign law refers back to the law of the Republic of Lithuania, such reference shall be observed.

4. Paragraphs 1, 2 and 3 of this Article shall not apply in the instances where the applicable law has been chosen by the parties to a transaction, likewise in determining the applicable law to the form of a transaction and to non-contractual obligations.

5. Where the provisions of this Chapter provide for the application of an international treaty (convention), the matters of renvoi, i.e. referring back and referring to the law of a third state, shall be decided in accordance with the provisions of the applicable international treaty (convention).

 

SeCTION two

Law applicable to THE civil legal status of natural persons

 

Article 1.15. Civil capacity of foreign citizens and stateless persons

1.  Foreign citizens in the Republic of Lithuania shall possess the same civil capacity as the citizens of the Republic of Lithuania. Exceptions to this rule may be established by the laws of the Republic of Lithuania.

2. The time of birth and death of foreign citizens shall be determined in accordance with the law of the state where was the domicile of the foreign citizens (Article 2.12 of this Code) at the moment of their birth or death.

3. Stateless persons shall possess the same civil capacity as the citizens of the Republic of Lithuania. Special exceptions to this rule may be established by the laws of the Republic of Lithuania.

4. The time of birth and death of stateless persons shall be determined in accordance with the law of the state where was the domicile of the stateless persons at the moment of their birth or death.

 

Article 1.16.Civil active capacity of foreign citizens and stateless persons

1. Civil active capacity of foreign citizens or stateless persons shall be governed by the laws of their state of domicile.

2. If such persons have no domicile or it cannot be determined with certainty, their legal active capacity shall be determined in accordance with the laws of the state within the territory of which these persons formed a relevant transaction.

3. If a person has residence in more than one state, the law of the state with which he is the most closely connected shall apply.

4. The ascertainment of incapacity or limited capacity of foreign citizens and stateless persons with permanent residence in the Republic of Lithuania shall be governed by the laws of the Republic of Lithuania.

5. A change of domicile shall not affect civil active capacity if that capacity was acquired prior to the change of domicile.

 

Article 1.17. Prohibition to invoke incapacity

1. A party to a transaction, who is incapable under the law of the state of his domicile may not invoke his incapacity if he was capable under the law of the state in which the transaction was formed, unless the other party was or should have been aware of the first partyís incapacity under the law of the state of the latterís domicile.

2. Provisions of paragraph 1 of this Article shall not apply to family law and the law of succession, as well as to real rights. 

 

Article 1.18. Declaration of foreign citizens and stateless persons to be missing or dead

Foreign citizens and stateless persons shall be acknowledged missing or declared dead in accordance with the law of the state of their last known domicile.

 

SECTION three

Law applicable to legal persons or any other organiSations

 

Article 1.19. Civil capacity of foreign legal persons or any other organisations

1. Civil capacity of foreign legal persons or any other organisations shall be governed by the laws of the state where these persons or organizations are founded.

2. If the procedure of founding a foreign legal person or any other organisation has been violated, its civil capacity shall be determined by the law of the state of its actual functioning.

3. Irrespective of the state of foundation of a legal person or any other organisation, the civil capacity of its subdivisions shall be determined in accordance with the law of the Republic of Lithuania if the head office, principal place of business or other activity of the subdivision is located in the Republic of Lithuania.

4. Merger, association or transfer of the head office of legal persons or any other organizations, one of which is located in the Republic of Lithuania and the other in a foreign state, shall have effect on their civil capacity in the Republic of Lithuania only if implemented in conformity with the laws of both states concerned.

 

Article 1.20. Issues regulated in accordance with the applicable law

1.The following shall be regulated in accordance with the applicable law determined in Article 1.19 of this Code:

1) the legal nature (legal form and status) of a legal person or any other organization;

2) foundation, reorganization and liquidation of a legal person or any other organization;

3) the name of a legal person or any other organization;

4) the system and competence of the bodies of a legal person or any other organization;

5) civil liability of a legal person or any other organization;

6) the power to represent a legal person or any other organization;

7) legal  effects of the violation of laws or founding documents;

2. Protection against infringement of the business name of a legal person or any other organization registered in the Republic of Lithuania shall be governed by the law of the Republic of Lithuania.

 

Article 1.21. Law applicable to the representative offices and branches of foreign legal persons or any other organizations

1. Representative offices and branches of foreign legal persons or any other organizations registered in the Republic of Lithuania shall be governed by the law of the Republic of Lithuania.

2. At least one of the persons acting on behalf of a representative office or a branch shall be bound to reside in the Republic of Lithuania.

3. The rights and obligations (competence) of the persons acting on behalf of a representative office or a branch registered in the Republic of Lithuania shall be determined by the law of the Republic of Lithuania.

 

Article 1.22. Law applicable to representatives of foreign legal persons or any other organizations and to their civil liability

1. If the business of a legal person or any other organization founded under foreign law is conducted in the Republic of Lithuania, the civil liability of the persons acting on behalf and in the interests of those legal persons or any other organizations shall be governed by the law of the Republic of Lithuania.

 2. A legal person or any other organization may not claim for annulment or invalidity of a transaction formed by its body or any other representatives in excess of their competence (powers) if the law of the state where the domicile or the head office of the other party to the transaction is located does not provide for any restrictions on their representative powers, unless the other party knew or, taking into account its position and the relationship with the other party, should have known of such restrictions.

 

Article 1.23. Law applicable to the state and state institutions as well as to local governments and local government institutions as subjects to civil legal relationships

Civil capacity of the state and state institutions as well as those of local governments and local government institutions shall be governed by the law of the state concerned.

 

Section four

Law applicable to family legal relationships

 

Article 1.24. Law applicable to a promise to marriage

1. A promise to marry and its legal  effects shall be governed by the law of the state of domicile of the parties to the promise.

2. Where the parties to the promise of marriage are domiciled in different states, the promise of marriage and its legal  effects shall be governed by the law of the place where the promise was made, or by the law of the state of domicile of one of the parties, or by the law of the state of citizenship of one of the parties, whichever law is most closely related with the dispute.

 

Article 1.25. Law applicable to the conditions to contract marriage

1. Matrimonial capacity and other conditions to contract marriage shall be governed by the law of the Republic of Lithuania.

2. Civil Registration Bureaus of the Republic of Lithuania shall have jurisdiction to perform the registration of marriage if either of the persons intending to marry is domiciled in the Republic of Lithuania or is a Lithuanian citizen at the time of solemnization of the marriage.

3. Matrimonial capacity and other conditions to contract marriage in respect of foreign citizens and stateless persons without Lithuanian domicile may be determined by the law of the state of domicile of both persons intending to marry if such marriage is recognized in the state of domicile of either of them.

4. A marriage validly performed abroad shall be recognized in the Republic of Lithuania, except in cases when both spouses domiciled in the Republic of Lithuania performed the marriage abroad with the purpose of evading grounds for nullity of their marriage under Lithuanian law.

 

Article 1.26. Law applicable to the procedure of contracting marriage

The procedure of contracting marriage shall be determined in accordance with the law of the state where the marriage is solemnized. Marriage shall also be recognized valid if the procedure of its contracting is in compliance with the requirements of the law of the state of domicile of either of the spouses or the law of the state of citizenship of either of them at the moment of solemnization of the marriage.

 

Article 1.27. Law applicable to personal relations between spouses

1. Personal relations between spouses shall be governed by the law of the state of their domicile.

2. Personal relations between the spouses domiciled in different states shall be governed by the law of the state of their last common domicile. Where the spouses have never had a common domicile, the law applicable to their personal relations shall be the law of the state to which the personal relations between the spouses are the most closely related. Where it is not possible to determine to the law of which state the personal relations between the spouses are the most closely related, the law of the state where the marriage was solemnized shall apply.

 

Article 1.28. Law applicable to matrimonial property relations between spouses

1. The matrimonial property legal regime shall be governed by the law of the state of domicile of the spouses. Where the spouses are domiciled in different states, the law of their common state of citizenship shall apply. Where the spouses have never had a common domicile and are citizens of different states, the law of the state where the marriage was solemnized shall apply.

2. The law applicable to contractual legal regime of matrimonial property shall be determined by the law of the state chosen by the spouses upon agreement. In this event, the spouses may choose the law of the state in which they are both domiciled or will be domiciled in future, or the law of the state in which the marriage was solemnized, or the law of the state a citizen of which is one of the spouses. The agreement of the spouses upon the applicable law shall be valid if it is in compliance with the requirements of the law of the chosen state or the law of the state in which the agreement is made.

3. The applicable law chosen upon agreement of the spouses may be invoked against third persons only if they knew or should have known of that fact, i.e. if the third party knew or should have known the chosen law that governed the matrimonial property regime when the legal relationship commenced.

4. The applicable law chosen upon agreement of the spouses may be used in resolving a dispute related to real rights in immovable property only in the event if the requirements of public registration of this property and of the real rights therein, as determined by the law of the state where the property is located, were complied with.

5. Any agreed change of matrimonial property legal regime shall be governed by the law of the state of domicile of the spouses at the time of the change. If the spouses were domiciled in different states at the time of change of the matrimonial property legal regime, the applicable law shall be the law of their last common domicile, or failing that, the law governing matrimonial property relationships between the spouses.

 

Article 1.29. Law applicable to separation and dissolution of marriage

1. Separation and dissolution of marriage shall be governed by the law of the spousesí state of domicile.

2. If the spouses do not have their common domicile, the law of the state of their last common domicile shall apply, or failing that, the law of the state where the case is tried.

3. If the law of the state of common citizenship of the spouses does not permit a dissolution of marriage or imposes special conditions for dissolution, the dissolution of marriage may be performed in accordance with the law of the Republic of Lithuania if one of the spouses is also a Lithuanian citizen or is domiciled in the Republic of Lithuania.

 

Article 1.30. Jurisdiction in the cases of annulment, dissolution of marriage and separation

The courts of the Republic of Lithuania shall have jurisdiction over actions of annulment, dissolution of marriage or separation in the cases provided for by the Code of Civil Procedure of the Republic of Lithuania.

 

Article 1.31. Law applicable to the ascertainment of the origin of a child (legitimation)

1. The origin of a child (ascertainment or contest of paternity or maternity) shall be established either in accordance with the law of the state the citizenship of which the child acquired at his birth, or with the law of the state which is recognized as the domicile of the child at the time of his birth, or with the law of the state in which one of the childís parents is domiciled, or with the law of the state the citizen of which one of the parents was at the time of the childís birth, whichever is more beneficial to the child.

2. The consequences of legitimation shall be governed by the law of the state of domicile of the child. 

3. If a child or one of his parents is domiciled in the Republic of Lithuania, the questions of legitimation shall be decided by the courts or other state institutions of the Republic of Lithuania.

4. The parentsí (the fatherís or the motherís) legal active capacity in acknowledging paternity (maternity) shall be governed by the law of the state of his or her domicile at the time of the acknowledgement. The form of the acknowledgement of paternity (maternity) shall be governed by the law of the state in which it is made or by the law of the state of the childís domicile.

5. The provisions of this Article shall also apply to the legitimation of a child born out of wedlock.

 

Article 1.32. Law applicable to relations between the parents and the child

1. Personal and property relationships between the parents and the child shall be governed by the law of the state of the childís domicile.

2. If neither parent is domiciled in the state of the childís domicile, while the child and the parents are citizens of the same state, the law of the state of their common citizenship shall apply.

 

Article 1.33. Law applicable to adoption relationship

1. Relationships of adoption shall be governed by the law of the state of the childís domicile.

2. Where it becomes evident that the adoption performed according to the law of the state of the childís (the adopteeís) domicile will not be recognized in the state of domicile or citizenship of the adoptive parents (adoptive parent), the adoption may be performed pursuant to the law of the state of domicile or citizenship of the adopter (the adopters) if this will not prejudice the best interests of the child. If the recognition of adoption remains uncertain, the adoption shall not be allowed.

3. Relations between the adopted person (the adoptee) on the one side, and the adopting persons (the adopters) and the relatives of the latter on the other side shall be governed by the law of the state of the adoptersí (the adopterís) domicile.

4. Cases related with adoption shall belong to the jurisdiction of the courts of the Republic of Lithuania if the child (the adoptee) or the adopting persons (adopting person) are domiciled in the Republic of Lithuania.

 

Article 1.34. Law applicable to protective measures in relation to minors, their guardianship and curatorship

Law applicable to protection of minors, their guardianship and curatorship shall be determined pursuant to the Hague Convention of 5 October 1961 concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Minors.

 

Article 1.35. Law applicable to guardianship and curatorship of family members who have reached majority

1. Guardianship and curatorship of family members who have reached majority shall be governed by the law of the state of such incapable personsí domicile.

2. Cases related with guardianship or curatorship of persons who have reached majority shall belong to the jurisdiction of the courts of the Republic of Lithuania if the incapable personís domicile or his property is located in the Republic of Lithuania.

 

Article 1.36. Law applicable to maintenance obligations (alimony relationships) within the family

Maintenance obligations (alimony) within the family shall be governed by the Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations.

 

SECTION five

Law applicable to contractual obligations

 

Article 1.37. Law applicable to contractual obligations

1 Contractual obligations shall be governed by the law agreed by the parties. Such agreement of the parties may be expressed in the form of separate terms of the concluded contract or it may be determined in accordance with the factual circumstances of the case. The law of the state designated by the agreement of the contracting parties may be applied to the whole contract or only to a part or parts thereof.

2. The initially chosen law applicable to contractual obligations may be changed by the agreement of the parties at any time. A change of law shall be retroactive to the time the contract was concluded though such change may not adversely effect the rights of third persons and shall not prejudice the formal validity of the contract.

3. The choice of the law applicable to a contract as made by the agreement of the parties may not be the grounds for refusing to apply the mandatory legal norms of the Republic of Lithuania or those of any other state that cannot be changed or declined by the agreement of the parties.

4. If no law applicable to a contractual obligation is designated by the agreement of the contracting parties, the law of the state with which the contractual obligation is most closely connected shall apply. The contractual obligation shall be presumed to be the most closely connected with the state in the territory of which:

1) the party bound to perform the obligation most characteristic to the contract is domiciled or has its central administration. If the obligation is most closely connected with the law of the state where the business of the party to the obligation is located, the law of that state shall apply;

2) immovable property is located, if the subject matter of the contract is the right in the immovable property or the right to its use;

3) was the place of the principal business of a carrier at the time when the contract for carriage was made, if the state of the principal business of the carrier is also the same state where the cargo was loaded, or the head office of the sender is located, or the place the cargo was dispatched from.

5. Paragraph 4 of this Article shall not apply where it is impossible to determine the place of performance of the obligation most characteristic to the contract and the presumptions established in this paragraph may not be relied upon as it is evident from the circumstances of the case that the contract is most closely connected with another state.

6. A contract of insurance shall be governed by the law of the state where the domicile or the place of business of the insurer is located; a contract of insurance in respect to an immovable thing shall be governed by the law of the state in the territory of which the thing is located.

7. An arbitration agreement shall be governed by the law applicable to the principal contract, and in the case of invalidity of the principal contract, by the law of the place where the arbitration agreement was concluded, where it is impossible to identify the place of conclusion, the law of the state in which arbitration is situated shall apply.

8. Contracts concluded in a stock exchange or auction shall be governed by the law of the state in which the stock exchange or auction is located.

 

Article 1.38. Law applicable to the form of transaction

1. The form of transaction shall be governed by the provisions established in paragraph 1 of Article 1.37 of this Code.

2. If no applicable law is designated by the agreement of the parties, the form of transaction shall be governed by the laws of the place where the parties entered into that transaction. A contract made by the parties residing in different states shall also be considered valid if its form corresponds to the legal requirements in respect of the form of the relevant transaction established in the national law of at least one of those states.

3. The form of transactions regarding an immovable thing or the rights therein shall be governed by the law of the state in which the immovable thing is located.

4. The form of consumer contracts concluded in cases provided for in paragraph 1 of Article 1.39 of this Code shall be governed by the law of the place of the consumerís domicile.

 

Article 1.39. Particularities of application of foreign law to consumer contracts

1. A consumer contract for the purposes of this Article as well as other Articles of this Code shall be a contract on the acquisition of goods or services concluded between a natural person (consumer) and a person who sells such goods or services (supplier) for the purposes not related with the consumerís commercial or professional activities, i.e. for the satisfaction of the consumerís personal, family or household needs.

2. The right of the contracting parties established in paragraph 1 of Article 1.37 of this Code to make a choice of the law applicable to a contractual obligation shall not result in depriving or restricting the consumer of the right to protect his interests by the remedies determined by the provisions of the law of the state of his domicile if:

1) the formation of the contract in the state of his domicile was preceded by a special offer or by advertising in that country;

2) the consumer was induced by the other contracting party to travel to a foreign state for the purpose of forming the contract;

3) the order was received by the other party or his agent from the consumer in the state of the latterís domicile.

3. If the parties to a consumer contract have not made a choice of the applicable law, the law of the state in which the consumer is domiciled shall apply.

4. The provisions of this Article shall not apply to contracts for carriage, contracts for the supply of services where the services are to be supplied to the consumer exclusively in a country other than the Republic of Lithuania.

 

Article 1.40. Laws applicable to the form, time-limit of validity and content of a power of attorney

The form of a power of attorney shall be governed by the law of the state in the territory of which it is issued. The time-limit of validity of a power of attorney, where it is not indicated in the document itself, the powers (rights and obligations) of the agent, the bilateral liability of the principal and the agent, and their liability in respect of third persons shall be governed by the law of the state in which the agent acts.

 

Article 1.41. Law applicable to gift

1. Gifts shall be governed by the law of the state of the donorís domicile or his business activities with the exception of contracts upon gifting of an immovable thing, as such contracts shall be governed by the law of the state where that immovable thing is located.

2. A gift cannot be declared invalid as to its form if the form corresponds to the requirements of the law of the state in which the act of gift was performed, or of the law of the state of the donorís domicile or his place of business activities.

 

Article 1.42 Law applicable to the assignment of a claim and the assumption of debt

1. Relations connected with the assignability of a claim and the assumption of a debt shall be governed by the law chosen by the parties upon agreement.

2. The choice of law made by the parties in the assignment of a claim may not be applied against the debtor without his consent to the application of the chosen law.

3. In the event of the parties not having made a choice of the applicable law, relations connected with the assignability of a claim and the assumption of a debt shall be regulated by the law governing the principal obligation, the claim arising from which (the debt) is to be assigned (assumed).

4. The form of the assignment of a claim or the assumption of a debt shall be governed by the law applicable to the contract of assignment or assumption. 

 

 

SECTION six

Law applicable to DELICTUAL obligations

 

Article 1.43. Law applicable to delictual obligations

1. Rights and obligations of the parties resulting from tort shall be governed, at the choice of the aggrieved party, either by the law of the state where the tortious act was committed or any other tortious circumstances occurred, or by the law of the state in which the damage occurred.

2. Where it is impossible to determine the place where the act was committed or other circumstances occurred, or the state in which the damage appeared, the law of the state most closely connected with the case upon reparation for damage shall apply.

3. After the incurrence of damage, the parties may agree that the law applicable to the reparation for damage shall be the law of the state where the case concerned is being heard.

4. If both parties are domiciled in the same state, the law of that state shall be applicable to the reparation for damage.

5. An obligation to make reparation for damage caused by defective products shall be governed by the law of the state where the damage was incurred if the aggrieved  person is domiciled in the same state, or it is the place of business of the person liable for the damage, or the products of inferior quality were acquired there by the aggrieved person. If the state of domicile of the aggrieved person coincides with the state of the place of business of the person liable for the damage caused, or with the state in which the defective product was acquired, the law of the state of the aggrieved personís domicile shall apply. Where it is impossible to determine the applicable law in accordance with the criteria indicated in this paragraph, the law of the state where the business of the person liable for the damage is located shall apply, except in cases when the claim of the plaintiff is based on the law of the state in which the damage was made.

6. Terms of civil liability, its extent, the person liable and the terms of release from civil liability shall be governed by the law applicable to the obligations resulting from the delictual obligations.

 

Article 1.44. Law applicable to claims resulting from a traffic accident

Claims resulting from a traffic accident shall be governed by the Hague Convention of 4 May 1971 on the Law Applicable to Traffic Accidents.

 

Article 1.45. Law applicable to claims resulting from infringement of personal non-property rights

1. Claims for reparation of damage resulting from infringement of personal non-property rights committed by the mass media shall be governed, depending on the choice of the aggrieved person, by the law of the state where the aggrieved person is domiciled, or has his place of business, or where the infringement occurred, or by the law of the state where the person who caused the damage is domiciled or has his place of business.

2. Response to the media (denial) shall be governed by the law of the state in which the publication appeared, or the radio or television program was broadcast.

 

Article 1.46. Law applicable to claims for reparation of damage resulting from an act of unfair competition

Claims for reparation of damage resulting from an act of unfair competition shall be governed by the law of the state in whose market the negative effects of unfair competition occurred. If the act of unfair competition has affected exclusively the interests of an individual person, the applicable law shall be that of the state where the place of business of the aggrieved person is located.

 

Article 1.47. Plurality of debtors

If damage is caused by several persons, the applicable law shall be determined for each of them in accordance with the provisions of Article 1.43 of this Code.

 

SECTION seven

Law applicable to real rights

 

Article 1.48. Law applicable to ownership legal relations

1. The ownership right and other real rights in an immovable and movable thing shall be governed by the law of the state where the thing was situated at the moment of change of its legal status. Acknowledgement of a thing to be movable or immovable shall be governed by the law of the state in which the relevant thing is located.

2. Official registration of the ownership right and other real rights shall be governed by the law of the state where the thing is located at the time of its registration.

3. The ownership right and other real rights in a thing in transit (cargo) shall be governed by the law of the state of destination of this thing.

4. The ownership right to an immovable thing resulting from acquisitive prescription shall be governed by the law of the state where the thing is located.

 

Article 1.49. The right of the parties to choose the law applicable to a movable thing

1. The parties may choose upon their agreement the law of the state of dispatch or the state of destination of the thing, or the law regulating the underlying legal transaction as the law applicable to the arisal and termination of the rights to the movable property.

2. The choice of the applicable law may not affect the rights of third persons.

 

Article 1.50. Law applicable to encumbrance of the right in a movable thing

1.Where a movable thing over which encumbrance of right was validly established abroad is imported into the Republic of Lithuania, that encumbrance shall be acknowledged to be likewise valid in the Republic of Lithuania.

2. Retention of title over a movable thing validly established abroad shall remain valid after that thing has been transported into the Republic of Lithuania, though such retention may not affect the rights of third persons in good faith.

3. Retention of title over a movable thing in transit shall be governed by the law of the state of its place of destination.

 

Article 1.51. Law applicable to pledge

1. The pledge of rights, securities and claims shall be governed by the law chosen by the parties, though the choice of law may not affect the rights of third persons.

2. In the absence of the partiesí choice of law, the pledge of claims and securities shall be governed by the law of the state where the place of domicile or business of the secured creditor is located; the pledge of other rights shall be governed by the law applicable to such rights.

 

SECTION eight

Law applicable to intellectual property rights

 

Article 1.52. Law applicable to contracts related to intellectual property rights

1. In the absence of the partiesí choice of applicable law (Article 1.37 of this Code), contracts related to intellectual property rights shall be governed by the law of the state where the party transferring the intellectual property rights or granting the use thereof has his domicile or the place of business.

2. Contracts between an employer and an employee regarding the rights to intellectual property created by the employee in the course of his employment shall be governed by the law applicable to employment contracts.

 

Article 1.53. Intellectual property rights and the law applicable to their protection

1. Intellectual property rights and their protection shall be governed by the law of the state where the protection of the intellectual property rights is sought.

2. In the event of infringement of intellectual property rights, the parties may agree after the occurrence of the damage that the applicable law shall be the law of the state where the court hearing the case concerned is located.

 

SECTION nine

Law applicable to other obligations

 

Article 1.54. Law applicable to obligations arising from the reception of a thing not due, or unjust enrichment

1. Claims resulting from an obligation performed without any legal grounds for such performance shall be governed by the law of the state pursuant to the laws of which the legal sources for the obligation are determinable.

2. Claims related with unjust enrichment resulting from unlawful actions shall be governed by the law of the state where such unlawful actions were performed.

3. Where reception of a thing not due or unjust enrichment occurs from the existing legal relationship between the parties, the law determining that legal relationship shall apply.

 

Article 1.55. Law applicable to unilateral transactions

Unilateral transactions shall be governed by the law of the state where they were formed.

 

Article 1.56. Law applicable to securities

1. Cheques and bills of exchange shall be governed by the provisions set forth in the Geneva Convention of March 19, 1931 on Conflicts of Law in Matters of Bank Cheques and the Geneva Convention of June 7, 1930 on Conflicts of Law in Matters Involving Bills of Exchange and Promissory Notes.

2. Other securities shall be governed by the law of the state where they are issued (drawn).

 

Article 1.57. Law applicable to the currency in which payments are to be made

1. Currency in which payments are to be made shall be determined by the law of the state where the payment must be made, unless the parties have chosen upon their agreement the currency in which the payments are to be made.

2. In all other cases, currency shall be regulated by the law of the state which issued the currency.

 

Article 1.58. Law applicable to obligations deriving from other grounds

Obligations deriving from management of affairs of another, likewise obligations deriving from other grounds not specified in this Chapter shall be governed by the law of the state where the grounds for the obligation occurred.

 

Article 1.59. Law applicable to prescription

Prescription shall be governed by the law applicable in determining the rights and obligations of the participants in the relevant civil legal relationship.

 

SECTION TEN

LAW APPLICABLE TO LEGAL RELATIONS OF SUCCESSION

 

Article 1.60. Capacity to make a will

The capacity of making, amending or revoking a will shall be governed by the law of the state of the testatorís domicile. Where a person has no domicile or it is impossible to be determined, the capacity of such person to make a will shall be governed by the law of the state were the will is made.

 

Article 1.61. Form of a will

1. The form of a will, its amendment or revocation shall be governed by the law of the state where these acts are performed.

2. A will as well as its amendment or revocation shall also be valid in regard of the form if the form of the indicated acts is in compliance with the requirements of the law of the state of the testatorís domicile, or those of the laws of the state whose citizen the testator was at the time when the relevant acts were performed, or the law of the state of the testatorís residence at the time when those acts were performed or at the time of his death. A will in respect of an immovable thing, as well as any amendment or revocation thereof shall be valid if the form of the acts concerned is in compliance with the requirements of the law of the state where the immovable thing is located.

 

Article 1.62. Law applicable to other legal relations of succession

1. Other legal relationships of succession, with the exception of those related with inheritance of immovable things, shall be governed by the law of the state of domicile of the testator at the time of his death. Relations of succession in respect of an immovable thing shall be governed by the law of the state where the immovable thing is located.

2. Where succession opens by the death of a citizen of the Republic of Lithuania, irrespective of the law applicable, his heirs residing in the Republic of Lithuania and in possession of the right to the mandatory share of succession shall inherit this part in accordance with the law of the Republic of Lithuania, except the immovable things.

3. Where in accordance with the law applicable to relations of succession a property cannot devolve to a foreign state, and where no other heir thereto is known and the property is located in Lithuania, that property shall be devolved to the ownership of the Republic of Lithuania.

 

 

PART II

TRANSACTIONS

 

CHAPTER III

CONCEPT AND FORM OF TRANSACTIONS

 

Article 1.63. Concept and types of transactions

1. Transactions are the actions of persons intended to create, modify or extinguish civil rights and duties.

2. Transactions may be unilateral, bilateral or multilateral.

3. A transaction shall be considered to be unilateral where the expression of the will of one party is a necessary and sufficient condition for its formation.

4. A unilateral transaction shall impose obligations exclusively on the person who forms it. Obligations on any other persons shall be imposed by a unilateral transaction only in the cases established by laws or by an agreement between the persons concerned.

5. Legal norms which regulate obligations and contracts shall apply to unilateral transactions to the extent that this does not prejudice laws and the essence of the unilateral transaction.

6. A transaction shall be considered to be bilateral where the concerted will of two parties is a necessary condition for its formation.

7. A transaction shall be considered to be multilateral where the concerted will of three or more parties is a necessary condition for its formation.

 

Article 1.64. Form of the expression of will

1. The free will of a person who enters into a transaction may be expressed verbally, in writing, by action or in any other manner of expressing will.

2. The will of a person may be implied subject to the special circumstances under which the transaction is formed.

3. Silence may be deemed to be an expression of will exclusively in the cases established by laws or agreed upon by the parties to the transaction.

 

Article 1.65. Expression of will by means of public notice

1. In the cases established by laws or a contract, a person Ė the declarant Ė may express his will by means of a public notice (public authorization, public annulment of authorization, etc.) in accordance with the procedure established by this Article.

2. A public notice shall be published in a newspaper that is issued in the last known place of residence or business either of the other party to the transaction or that of the declarant of will, also in the major dailies of the Republic of Lithuania in accordance with the procedure established by the Code of Civil Procedure in respect of the service of public notice of court summons. The court may, if necessary, establish any other procedure for the expression of a personís will by means of public notice.

3. A declaration of will by public notice shall be presumed to have become known to the other party upon the lapse of 14 days counting from the date of the last public declaration. However, this presumption shall not apply if the person who declared his will by public notice failed to perform every possible action available to him for the ascertainment of the place of residence or business of the other party to the transaction.

4. A public declaration of will shall be published at the expense of the declarant of the will.

 

Article 1.66. Conditional transaction

1. A transaction may render the appearance, modification or extinguishment of rights and duties dependent upon the fulfillment or non-fulfillment of certain conditions.

2. A transaction shall be deemed to be concluded with a suspensive condition if the arising of rights and duties therefrom is conditioned by the parties upon an uncertain event.

3. A transaction shall be deemed to be concluded with a resolutory condition if the extinguishment of rights and duties arising therefrom is conditioned by the parties upon an uncertain event.

4. A transaction shall be null and void if the arising, modification or extinguishment of rights and duties is conditioned by the parties upon the fulfillment of an unlawful condition or a condition incompatible with the public order or good morals, or upon the performance of unlawful actions.

 

Article 1.67. Consequences of an unfair hindering or assistance in the appearance of a condition

1. Where the appearance of a condition is unfairly hindered by a party to whom the condition is disadvantageous, this condition shall be considered as having existed.

2. Where the appearance of a condition is unfairly facilitated by a party to whom the condition is advantageous, this condition shall be considered as not having existed.

 

Article 1.68. Other consequences of a conditional transaction

1.       If a condition had already been fulfilled at the time when the transaction was formed, such transaction shall be unconditional in the case of a suspensive condition, and null and void in the case of a resolutory condition.

2.       If non-fulfillment of the conditions was already certain at the time when the transaction was formed, such transaction shall be unconditional in the case of a suspensive condition, and null and void in the case of a resolutory condition.

3.       A transaction subject to a suspensive condition which is impossible objectively shall be null and void; a transaction subject to a resolutory condition which is objectively impossible shall be unconditional.

4.       A transaction subject to a suspensive condition shall be null and void if the condition is dependent solely upon the will of the debtor.

 

Article 1.69. Place of transaction forming

1. A unilateral transaction shall be deemed to have been formed in the place where the will of a party to the transaction is expressed (the place where an authorization is given or a will (a testament) is made, etc.)

2. A bilateral or multilateral transaction shall be deemed to have been formed in the place of residence or business of the offeror, unless laws or agreement of the parties provide for otherwise.

3. Where the receipt of the notice of acceptance by the offeror is not a necessary condition for the formation of a transaction, such transaction shall be deemed to have been formed in the place of residence or business of the acceptor, or the place in which the factual actions of the acceptor were performed.

 

Article 1.70. Procedure of forming transactions

1. Natural persons may form transactions themselves or through their agents. It shall not be allowed to enter into transaction through an agent if, dependent on the nature of the transaction, it may be formed only by the natural person himself; the same stands for any other transactions determined by laws.

2. Transactions on behalf of legal persons shall be formed by the bodies or agents indicated in their founding documents.

 

Article 1.71. Form of transactions

1. Transactions shall be made in writing (in the ordinary or notarial form) or their formation may be implied from the actions.

2. A transaction, in respect of which there is no specific form established by laws, shall be deemed to have been formed if the person demonstrates by his behaviour the will to form a transaction (a contract formed by actions).

 

Article 1.72. Verbal form of transactions

1. Where the written form is not required by laws or by an agreement of the parties as a necessary condition for the forming of a transaction, the transaction may be formed verbally.

2. Transactions resulting from the performance of a written contract may be formed verbally if this does not contradict laws or the contract.

 

Article 1.73. Written form of transactions

1.The following shall be made in the ordinary written form:

1.          transactions made by natural persons in the event where at the moment of their formation the value of the property upon which the transaction is made exceeds five thousand litas, except such transactions which are performed at the time of their formation;

2.          transactions on the foundation of legal persons;

3.          contracts of purchase and sale of goods by instalments;

4.          insurance contracts;

5.          arbitration agreements;

6.          contracts of lease of a movable thing for a term of over one year;

7.          preliminary contracts;

8.          contracts of life annuity (contracts of rent);

9.          compromise agreements;

10.       other transactions whose mandatory ordinary written form is provided for by this Code or other laws.

2. Written transactions shall be made either by drawing up one document signed by all the parties or by the parties exchanging separate documents. Documents signed by the parties and transmitted by means of telegraph, facsimile communication or over any other means of communication terminal equipment shall be conferred the same power as having been made in the written form, providing the protection of the text is guaranteed and the signature can be identified.

3. The parties may agree to adopt additional requirements for the written form of the transaction (signatures of certain persons, affixation of a stamp on the document, assignment of a special form for the document, etc.) and establish the legal  effects for non-compliance with such requirements. In the event of the parties failing to comply with the established requirements, the transaction shall not be considered formed, unless the parties agree otherwise.

 

Article 1.74. Notarised transactions

1.The following transactions shall be drawn up in the notarial form:

1) transactions on the transfer of the real rights in an immovable thing and transactions on the encumbrance of the real rights and of the immovable thing;

2) contracts of marriage (pre-nuptial and post-nuptial);

3) other transactions which are to be notarised in accordance with the mandatory provisions of this Code.

 

Article 1.75. Legal registration of transactions

1. The law may establish mandatory legal registration of certain transactions. A transaction shall produce its effects between the parties even if it is not registered in the mandatory order. In such instances, the rights and duties of the parties produce their effects between them not from the moment of registration of the transaction but from the moment established by the law or agreement of the parties, except in cases where it is expressly determined by this Code that the rights and duties of the parties shall arise only from the moment of registration of the transaction concerned.

2. The parties to an unregistered transaction may not invoke the fact of transaction against third persons and argue their rights against third persons by relying on other means of proof.

3. If the same real rights or the same thing is acquired by several acquirers but only one of them registers that transaction, it shall be considered that the acquirer who has registered the transaction is vested with that thing or with the real rights in that thing. If none of the acquirers registers the transaction, it shall be considered that the acquirer who is the first to form that transaction is vested with the rights indicated above.

4. If several persons register their property rights or real rights in the same thing, the person who is the first to register that transaction shall be vested with these rights.

5. Damage caused to persons by unlawful acts of the officials of state institutions or other organisations effectuating mandatory legal registration of transactions shall be compensated by the state.

 

Article 1.76. Signing of transactions formed in writing

1. Transactions drawn up in writing must be signed by the contracting parties. Where a natural person, due to physical defect, illness or any other reason, cannot sign it himself, he may authorize another person to sign on his behalf. The signature of the latter must be witnessed by a notary; or the head or a deputy head of the enterprise, institution or organisation where the person concerned is employed or studies; or by the head physician or a deputy head physician of the in-patient medical institution where the person concerned undergoes treatment; or by the commander of the military unit or a deputy commander thereof if the transaction is made by a soldier; or by the master of a ship during the period of a long voyage; in addition, the reason for which the person entering into the transaction is unable to sign it himself must be indicated.

2. Where the transaction is made by employing telecommunication terminal equipment, in all cases there must be sufficient data for the ascertainment of the parties to the transaction. In the event of absence of such data, the parties, if a dispute arises, may not rely upon witnesses to prove the fact of transaction forming.

 

Article 1.77. Formation of transactions in the form other than established by the law

1. Transactions which are permitted by laws to be formed verbally, may also be made in the written or notarial form.

2. Transactions, the ordinary written form for which is mandatory, may also be formed in the notarial form.

 

Chapter IV

Voidability of transactions

 

Article 1.78. Null and voidable transactions

1. If the nature of nullity is clearly indicated in the law, a transaction shall be presumed to be null, irrespective of the fact of existence of a court judgement upon its nullity. The parties may not ratify a transaction which is null and void.

2. Any transaction for the declaration of voidability of which a court judgement is necessary, shall be a voidable one.

3. A transaction may be deemed to be null and void only on the grounds established by laws.

4. An action for the voidability of a voidable transaction may be invoked only by the persons indicated in the laws.

5. A claim to apply the legal  effects arising from a transaction that is null and void may be invoked by any interested person. Legal  effects of a null and void transaction, also the fact of its nullity shall be stated by the court ex officio (on its own motion).

 

Article 1.79. Ratification of a voidable transaction

1. A party possessing the right to invoke voidability of a transaction may ratify it within the time-limit established by the other party or the laws. After ratifying the transaction, the party forfeits his right to claim for voidability of that transaction.

2. It shall be presumed that a transaction is ratified by the party if, after it became possible to be ratified or disputed by that party, any of the following events have taken place:

1) the transaction has been performed partly or in whole;

2) a demand has been made against the other party for the performance of the transaction;

3) a security for the performance of the obligation subject to ratification has been granted to the other party;

4) the rights acquired according to that transaction have been transferred to another person partly or in whole.

 

Article 1.80. Nullity of a transaction that does not correspond to the requirements of mandatory statutory provisions

1. Any transaction that fails to meet the requirements of mandatory statutory provisions shall be null and void.

2. When a transaction is null and void, each party shall be bound to restore to the other party everything he has received according to that transaction (restitution), and where it is impossible to restore in kind the received, the parties are bound to compensate the received to each other in money, unless the laws provide for other consequences of voidness of the transaction.

3. The rules of restitution are established by Book Six of this Code.

4. The property Ė object of the transaction that is annulled Ė may not be claimed from the third person in good faith, except in cases provided for in paragraphs 1, 2 and 3 of Article 4.96 of this Code.

 

Article 1.81. Nullity of a transaction contradicting public order and good morals

1. A transaction that is contrary to public order or norms of good morals shall be null and void.

2. If a transaction is annulled on the grounds established in paragraph 1 of this Article, the rules provided for in paragraph 2 of Article 1.80 of this Code shall not apply if both parties knew or should have known the transaction to be contrary to public order or good morals.

3. Unilateral or bilateral restitution may take place where its application is not contrary to the mandatory statutory provisions or good morals, i.e. where the purpose of the transaction contradicting public order or norms of good morals was not achieved, and the provisions of public law do not establish any property sanctions in regard to the parties to such transaction.

 

Article 1.82.Voidability of a transaction contradicting the legal passive capacity of a legal person by whom the transaction was formed

1.Transactions made by the governing bodies of a private legal person in breach of the competence conferred on them by their founding documents or contradicting the goals of that legal person may be declared void only in the cases where it is proved that the other party acted in bad faith, i.e. he knew or should have known that the transaction was contrary to the goals of the legal person concerned. In such cases, the fact of announcement of the founding documents of the legal person concerned shall not be a sufficient proof of the other partyís bad faith, therefore the legal person shall be bound to prove that the other party deliberately acted in bad faith (Article 2.74 and Articles from 2.83 to 2.85 of this Code).

2. Transactions formed by public legal persons that are contrary to the goals of their activities may be declared void.

3. An action for the declaration of voidness on the grounds established by this Article may be brought by the legal person, the founder (founders) or a participant (participants) thereof. The laws may also specify other persons entitled to bring such an action, or special requirements which have to be met by the persons bringing such an action (e.g., holding of a certain number of shares (deciding votes))

4. Transactions indicated above shall be governed by the rules prescribed in paragraph 2 of Article 1.80 of this Code.

 

Article 1.83. Legal  effects of a transaction formed on behalf of a legal person that is not registered within the procedure established by laws or has no licence to be engaged in the activities that are prohibited without a licence

1. Where a transaction is made on behalf of a legal person that is not registered within the procedure established by laws, the natural person by whom such a transaction is made acquires the rights and assumes the duties arising from that transaction, providing there are no other grounds for declaring such transaction void.

2. Where transactions are made on behalf of a legal person prior to its registration, the persons by whom these transactions are made shall be solidary liable, unless the legal person, after it is registered, assumes the obligations resulting from those transactions (Article 2.61 of this Code).   

 

Article 1.84. Voidability of a transaction formed by a natural incapable person

1. A transaction shall be voidable if formed by a minor under fourteen years of age, except in cases where the minor, within the limits imposed by his age and in accordance with this Code and other laws of the Republic of Lithuania, may enter into transactions alone to satisfy his ordinary and usual needs.

2. A transaction is likewise voidable if it is made by a natural person who within the procedure established by laws is recognised as legally incapable by reason of mental disease or imbecility.

3. In the cases established in paragraphs 1 and 2 of this Article, besides the consequences provided for in paragraph 2 of Article 1.80 of this Code, the legally capable party shall be obliged to compensate the expenses suffered by the other party, also any damage to the latterís property or loss thereof if the capable party knew or should have known about the incapacity of that other party.

4. The voidness of such transaction may be invoked by statutory representatives of the incapable person, also a public prosecutor. A transaction, if it is beneficial to the incapable person, may be ratified by the statutory representative of the latter in accordance with the procedure established by laws.

 

Article 1.85. Voidability of a transaction made by a natural person who overindulges in strong drinks or narcotic substances

1. A transaction upon the transfer of property or a real right that is formed by a natural person whose legal active capacity is limited by reason of overindulgence in strong drinks or narcotic substances and without the consent of a curator, except small transactions to meet his ordinary and usual needs, can be declared voidable within the judicial procedure on the action of the curator or a prosecutor.

2. If a transaction indicated in the preceding paragraph of this Article is declared voidable, the provisions of paragraph 3 of Article 1.84 of this Code shall apply.

3. After a transaction has been formed, a curator may ratify the transaction formed by the protected person alone during the period of his limited capacity for which he required to be represented if such transaction is beneficial to the person with limited capacity.

 

Article 1.86. Nullity of a fictitious transaction

1. A transaction made for the sake of appearance without intention to create legal effects shall not produce its effects between the parties and shall be null and void.

2. The provisions established in paragraph 2 of Article 1.80 of this Code shall apply to the transactions specified above.

 

Article 1.87. Nullity of a simulated transaction

1. If a transaction is formed to cover up another transaction, i.e. if the partiesí intent to make a transaction is different from the simulated transaction, the rules applicable to the intended transaction shall apply.

2. If the rights or lawful interests of third persons are violated by a simulated transaction, the third persons in defence of their rights shall be able to plead simulation against the parties of the simulated transaction.

3. A simulated transaction cannot be used as a defence by the contracting parties against third persons who in good faith have acquired rights from the simulated transaction.

 

Article 1.88. Declaring voidable a transaction made by a minor from fourteen to eighteen years of age

1. A transaction made by a minor from fourteen to eighteen years of age, where the law does not allow him to act without the consent of his parents or curators, may be declared void within the judicial procedure on the action of such minorís parents or curators, with the exception of transactions into which the minor may, within the limits imposed by his age, enter alone in accordance with this Code and other laws of the Republic of Lithuania.

2. If a transaction specified in paragraph 1 of this Article is declared void, the rules prescribed in paragraph 3 of Article 1.84 of this Code shall apply.

3. Statutory representatives of a minor can ratify a voidable transaction made without a proper consent, by giving their consent after the transaction has been formed, if such transaction is beneficial to the minor concerned.

 

Article 1.89. Declaring voidable a transaction formed by a natural person who was unable to understand the meaning of his own actions

1. A transaction formed by a capable natural person may be annulled within the judicial procedure on the action of the natural person concerned if, by reason of his state at the moment of the transaction forming, he was unable to comprehend the meaning of his acts or to control them.

2. Where the transaction specified in paragraph 1 of this Article is declared void, besides the consequences established in paragraph 2 of Article 1.80 of this Code, the following additional consequences arise: the other party shall be bound to compensate to the party who at the moment of the transaction forming was unable to comprehend his own actions or to control them the expenses suffered, also any damage to his property or loss thereof, if this another party was aware or should have been aware of the state of the first contracting party.

 

Article 1.90. Declaring voidable a transaction formed under the influence of a mistake

1. A transaction resulting from the consent given by an essential mistake may be declared void within the judicial procedure on the personís whose consent is vitiated action for its voidness.

2. A mistake is an erroneous assumption of the essential facts of the transaction that existed at the moment of the transaction forming.

3. In the event of annulment of a transaction formed under the influence of an essential mistake, the provisions established in paragraph 2 of Article 1.80 of this Code shall apply. The party upon whose action the transaction is declared void may, in addition to the annulment, also claim from the other party compensation for the expenses incurred or the damage to his property or loss thereof if this party proves that the mistake was caused by the fault of the other party. Where it is not proved, the party on whose action the transaction is declared void shall be bound to compensate to the other party the expenses incurred as well as the damage to his property or loss thereof.

4. A mistake is essential where the error relates to the nature, object or any other essential conditions of the contract itself, or the civil legal status of the other contracting party or any other circumstances, and where a person of normal diligence and attentiveness would not have made the transaction in a similar situation or would have made it on essentially different terms if he had known the real state of events. A mistake is likewise essential if both contracting parties are mistaken, or an error of one party induced the other party to err without the formerís intention to deceive, or if one party was aware or should have been aware of the mistake committed by the other party and the requirement addressed to the mistaken party to perform the transaction would contradict to the principles of good faith, justice and reasonableness.

5. A mistake may not be considered essential if caused by gross negligence of the mistaken party, or induced by circumstances the risk of which was taken by the party upon himself or if, taking into account the concrete circumstances, the risk of mistake falls on that party in particular.

6. A mistake resulting from the expression or transmission of a partyís will shall be deemed to be a mistake committed by that party himself.

7. The mistaken party cannot claim for the annulment of a contract where his rights and interests may be adequately protected by invoking other remedies.

 

Article 1.91. Voidability of a transaction made by a party whose consent was obtained by fraud, extorted by duress, economic pressure or induced by real threatening, likewise of a transaction made by the malicious agreement of a agent of one party with the other party, or a transaction entered into because of abusive circumstances

1. A transaction may be declared voidable by a court on the action of the aggrieved party if it was entered into due to fraud, duress, economic pressure or real threatening, or if it was formed by a malicious agreement of the agent of one party with the other party, likewise if, by entering into the transaction by reason of abusive circumstances, one party assumes obligations under unfair conditions.

2. Where the voidability of a transaction is based on any of the grounds specified in paragraph 1 of this Article, the other party shall be bound to restore to the aggrieved party everything he has received according to that transaction, and where it is impossible to restore (in kind), it must be compensated in money. In addition, the guilty party shall be bound to compensate to the aggrieved person all the expenses incurred.

3. Where a transaction is declared voidable by reason of fraud, violence, economic pressure, real threatening or malicious agreement made between the agent of one party and the other party, the aggrieved party may, in addition to remedies provided for in the preceding paragraph of this Article, claim non-pecuniary damage caused by the actions indicated.

4. For the purposes of this Article, the notion ďreal threateningĒ means unjustifiable or unlawful actions of the other party or a third person directed towards the person, property or reputation of the other contracting party, or that of his parents, children, spouse, grandparents, grandchildren or any other close relatives; the threatening actions must be of such nature as to impress a reasonable person and to cause him fear that the person, property or reputation of the persons concerned may be exposed to damage and there is no other reasonable alternative except to enter into the transaction. Threatening shall also be deemed to be real where one party or a third person threatens to enforce measures of economic pressure against the other contracting party that is economically weaker or is in essence economically dependent in order to compel him to form a transaction under exceptionally economically disadvantageous conditions. In determining the occurrence of real threatening, the court shall take into account the age, economic and financial position, and the gender of the party towards whom the threat was directed, the nature of the threat, and any other conditions significant for the case.

5. In addition to the forms specified in the preceding paragraph of this Article, fraud may result from the silence of a party, i.e. from concealment of such circumstances being aware of which the other contracting party would not have formed the transaction and which, within the principles of reasonableness, justice and good faith, had to be disclosed to the other party; fraud may also result from active actions by which it is desired to mislead the other contracting party concerning the effect of the transaction, essential terms thereof, civil legal capacity of the person who enters into the transaction, and any other essential circumstances.

6. If a third person, but not the other party to the transaction is guilty of fraud, duress or threatening, the transaction shall be declared voidable only in the cases where that other party was aware or should have been aware of those facts.

7. The fact of declaring voidable a transaction formed under the influence of fraud may not be invoked against third persons in good faith, except in cases established by this Code. 

 

Article 1.92. Voidability of a transaction formed by an agent outside the authority conferred on him

A transaction made by a agent outside the limitations of the authority conferred on him by laws or a contract, may be declared voidable upon the action of the principal, unless such transaction is ratified by the principal (Article 2.133 of this Code).

 

Article 1.93. Voidability of a transaction resulting from the lack of requisites of its form established by laws

1. A transaction not made in the form required by laws for this particular case shall be void only in the case when such consequence is expressly indicated in the laws.

2. Where any dispute arises upon the fact of forming or performance of a transaction which fails to meet the necessary requirements for its ordinary written form, the parties lose the right to use testimony of witnesses as evidence to prove the facts indicated above; in the cases expressly prescribed by the law, non-observance of the ordinary written form obligatory to a concrete kind of transactions shall cause the nullity of such transaction.

3. Non-observance of the notarial form required by the law as a necessary condition of a transaction shall result in the nullity of the transaction in any case.

4. Where one party in the whole or partly performs his obligations arising from a transaction that must be notarized while the other party avoids the notarization thereof, the court may, on the action of the party who has performed his obligations, declare such transaction valid. In such event, a subsequent notarization of the transaction is not required.

5. Where nullity of a transaction results from the lack of necessary requisites of its form as established by laws, the consequences provided for in paragraph 2 of Article 1.80 of this Code shall arise.

6. The provisions established in paragraph 2 of this Article may not be applied by a court if they contradict the principles of good faith, justice and reasonableness, in particular where:

1) there exists other written evidence, even though indirect, that proves the forming of the transaction;

2) written evidence to prove the fact of transaction forming has been lost not through the fault of the party;

3) taking into consideration the circumstances in which the transaction was formed, it was objectively impossible to form that transaction in writing;

4) taking into consideration the interrelations between the parties, the nature of the transaction, and other circumstances of importance to the proceedings, prohibition to invoke testimonies of witnesses would contradict to the principles of good faith, justice and reasonableness.

 

Article 1.94. Legal effects of non-observance of the requirement to perform legal registration of a transaction

Non-observance of the requirement established by laws to perform legal registration of a transaction shall not result in nullity of the unregistered transaction, except in the cases prescribed by this Code.

 

Article 1.95. Time from which the effect of annulment arises

1. A transaction which has been annulled shall be deemed to be null and void ab initio (from the moment of its forming).

2. Where from the content of a transaction follows that it is impossible to declare such transaction void ab initio, it may be declared void only for the future, i.e. from the time when the judgement acquires the authority of the final judgement (res judicata)

 

Article 1.96. Consequences of partial nullity of a transaction

Partial nullity of a transaction shall not import the nullity of the entire transaction where it can be supposed that the contracting parties would have entered into that transaction even without the part affected by nullity having been included.

 

Part III

OBJECTS OF CIVIL RIGHTS

 

Chapter V

CONCEPT and kinds of objects of civil rights

 

Article 1.97. Kinds of objects of civil rights

1. Objects of civil rights shall be things, money and securities, other property and property rights, results of intellectual activities, information, actions and results thereof, as well as any other material and non-material values.

2. Things and property the turnover of which is restricted may be considered to be objects of civil rights only in the cases established by laws. Things which are withdrawn from civil use or the turnover of which is restricted must be imperatively indicated in the laws. Otherwise, the civil turnover of things or property shall not be considered restricted.

 

Article 1.98. Things as object of civil rights

1. Things as object of civil rights shall be divided into movables and immovables.

2. Land and other things which are connected with land and which cannot be moved from one place to another without change of their purpose and essential reduction of their value are immovables (buildings, equipment, perennial plants and other things which, according to their purpose and nature, are deemed to be immovable).

3. Ships and aircraft, the mandatory legal registration for which is established by laws, are also considered to be immovables. Any other property may also be attributed to immovables by the laws.

4. Things which can be moved from one place to another without a change of their purpose and considerable reduction of their value are considered to be movables, unless otherwise provided for by laws.

 

Article 1.99. Kinds of things as objects of civil rights

1. Things as objects of civil rights shall be divided into things determined by their individual features and things determined by their specific properties.

2. Things also are divided into divisible and undivisible, consumptable and unconsumptable, principals and accessories.

 

Article 1.100. Money

1. Money, as an object of civil rights, shall be bank-notes issued by the Bank of the Republic of Lithuania, coins and means in accounts, also bank-notes issued by other foreign states, Treasury notes, as well as coins and means in accounts, serving as lawful means of settlement.

 

Article 1.101. Securities

1. A security, as an object of civil rights, is a document certifying the obligation of its issuer to the holder of this document. A security can confirm the right of the person in possession of the document (holder) to receive from the issuer interest, dividends, part of an enterprise upon its liquidation, or the funds lent to the issuer (shares, bonds, etc.); the right or duty to acquire or alienate for payment or gratuitously other securities (the right to sign, future transactions, options, convertible bonds, etc.); the right to some income or payment duty subsequent to a change of prices on the security market (index, etc.). A security is also a document by which a direct order is issued to a bank to pay a certain sum of money (cheques) or which certifies a duty to pay a certain sum of money to the person whose name is indicated in the document (bill of exchange); or which proves the right of ownership to merchandise (mercantile securities): likewise a document which certifies the right or duty to acquire or alienate mercantile securities (derivative mercantile securities). Uncertified securities are issued in the cases established by laws and indicated (consolidated) in a special security register.

2. The laws may also provide for other types of securities. For the purposes of protecting the rights of investors, as well as for supervising and regulating the capital market, the laws may provide for a different definition of securities (investment) to be employed in the laws which regulate these relationships. Unless provided for otherwise, the provisions of this Code and the definition of securities shall apply to investment (investment securities) if the documents certifying the investment possess the features specified in paragraphs 1 and 3 of this Article.

3. The right certified by a security may be alienated to another person only in that event if the security itself is alienated, unless otherwise provided for by the laws. Securities may be alienated in accordance with the laws, the ordinary practice or by custom freely and unrestrictedly. Securities shall be alienated by transfer, though it ought to be certified by means of making an inscription of transfer of the security Ė an endorsement.

4. Securities may be underlying or derivative. Underlying securities confirm their holdersí rights and duties specified in paragraph 1 of this Article, with the exception of the right or duty to acquire or alienate for payment or gratuitously other securities, as well as the right to receive certain income or an duty to pay a certain sum of money subsequent to a change of prices on the security market. The securities which certify these exclusive rights or duties are called derivative securities.

5. Securities are divided into registered, bearer or order securities. They also divided into monetary, investment and mercantile securities.

6. A monetary security grants the right to receive a certain sum of money indicated therein (cheque, bill of exchange, bond).

7. An investment security concedes the right to participate in the management of the enterprise, certifies possession of the enterprise capital and entitles to receive a part of its profits (shares and certificates of shares, etc.), except in cases provided for by laws.

8. A mercantile security grants the right of ownership of merchandise, also the right to receive merchandise (bill of lading, way-bill, etc.).

9. Securities must contain the requisites provided for by laws. The absence of obligatory requisites of a security shall render it null, except in cases established by laws.

10. Upon the issue of uncertified securities, where the laws do not provide for otherwise, it shall be presumed pursuant to this Code that the holder of the securities has entrusted the accountant with their keep upon the contract of deposit. The rights, obligations and liability of the keeper shall be determined in accordance with the provisions of Book Six of this Code applicable to the contract of deposit. Where accountancy is managed by several persons on different levels, it shall be presumed that the person who handles the accounts of the security owner has transferred the keep of the securities concerned to another person under the contract of deposit. Such securities shall be alienated by the relevant entries in the security register.

 

Article 1.102. A share

1. A share is a security certifying the right of its holder (shareholder) to participate in the management of a stock company and, where the laws do not provide for otherwise, to receive a part of the stock company profits in the form of dividend and a part of the remaining property of the stock company in case of its liquidation, as well as certifying other rights established by laws.

2. Shares may be of the following classes: registered or bearer, ordinary or preference, certificates or uncertificated.

 

Article 1.103. A bond

A bond is a security certifying its holderís right to receive from the person who issues the bond the nominal value of the bond, annual interest or any other equivalent, or other property rights within the time-limits prescribed in it.

 

Article 1.104. A cheque

A cheque, as a security, is an unconditional order drawn up in a certain manner that is addressed by the drawer to a bank to pay a certain sum in money to the holder of the cheque.

 

Article 1.105. A bill of exchange

1. A bill of exchange, as a security, is an unconditional order in writing addressed by one drawer to another by which the first person pledges himself or entrusts another person to pay directly or indirectly a certain sum of money to the person whose name is indorsed therein.

2. A bill of exchange may be of two forms: an order bill (draft bill) or a single bill (sole bill).

3. By using an order bill (draft bill) its drawer entrusts another person to pay to the person whose name is indorsed in the bill the sum indicated therein.

4. By using a single bill (sole bill) its drawer pledges himself to pay the sum indicated therein.

 

Article 1.106. A bill of lading

1. A bill of lading, as a security, is a document certifying the fact of conclusion of a contract and its holderís right to receive from the carrier the goods specified therein (cargo) and the right to dispose of the goods (cargo) received.

2. A bill of lading may be bearer, order or straight. If a bill of lading is drawn up in several copies, after the shipment is delivered under any of the copies of the bill of lading presented first, the other copies thereof shall lose their legal power.

 

Article 1.107. A bank certificate

1. A bank certificate is a written bank document containing a statement on the monetary contribution and granting the depositor the right to receive that contribution and interests subject to the time-limits stated therein.

2. A bank certificate may be inscribed, transferable or non-transferable.

 

Article 1.108. A state debt obligation

1. A state debt obligation is a security payable to the bearer which certifies that its holder has lent a certain sum in money to the state and grants its holder the right to receive the sum indicated therein and interests established thereby during the period of the possession of this security.

 

Article 1.109. A plot of land and other resources

A land plot indicated in kind and registered within the procedure established by laws, also the indicated areas of the entrails of the earth, as well as waters, forests, objects of flora and fauna may be objects of civil rights.

 

Article 1.110. Enterprises and other property complexes

1. An enterprise, as a complex of assets, property and non-property rights belonging to the person who is engaged in business (seeking profit), as well as debts and other duties thereof, may be the object of civil rights. An enterprise is considered to be an immovable thing.

2. A property complex, as the object of civil rights, is the totality of things joined by a common economic purpose.

 

Article 1.111. Results of intellectual activities

Works of science, literature and art, invention patents, industrial samples and other results of intellectual activities expressed in any objective form (manuscripts, technical drawings, models, etc.) shall be deemed to be objects of civil rights. Invention patents and other results of intellectual activity shall become objects of civil rights from the moment of their recognition as such made within the procedure established by laws.

 

Article 1.112. Property rights

1. Real rights, rights arising from obligations, also rights arising from the results of intellectual activities shall be objects of civil rights.

2. Property rights may be transferred and inherited.

 

Article 1.113. Actions and their results

Various actions and their results (transportation of goods, repairing of things, services, etc.) shall be objects of civil rights.

 

Article 1.114. Personal non-property rights and values

1. Personal non-property rights and values, i.e. name, life, health, inviolability of body, honour, dignity, the private life of an individual, the authorís name, professional reputation, business name, trade marks of goods (services) and other values with which the arising of certain legal effects is linked by the laws shall be objects protected by the Civil law.

2. Personal non-property rights may be transferred or inherited only in the cases established by laws or where this does not contradict the nature of these values and principles of good morals or is not restricted by laws.

 

Article 1.115. Personal non-property rights

1. Objects protected by the Civil law are personal non-property rights, i.e. the rights that have no economic content and are inseparably related with their holder.

2. Personal non-property rights may be related with property rights, or they may not be related with the aforesaid rights.

 

Article 1.116. Commercial (industrial) and professional secret

1. Information shall be considered to be a commercial (industrial) secret if a real or potential commercial value thereof manifests itself in what is not known to third persons and cannot be freely accessible because of the reasonable efforts of the owner of such information, or of any other person entrusted with that information by the owner, to preserve its confidentiality. The information that cannot be considered commercial (industrial) secret shall be determined by laws.

2. Forms of protecting the information containing a commercial (industrial) secret are established by this Code.

3. Persons who unlawfully acquire information considered to be a commercial (industrial) secret shall be bound to compensate for the damages caused. Workers who in breach of the labour contract disclose a commercial (industrial) secret, as well as a party of any other contract who in breach of that contract discloses a commercial secret shall also be bound to compensate damages resulting from the disclosure of the commercial (industrial) secret. In this event, the damages suffered by the holder of the secret include the investment expenses incurred for its creation, development and use, as well as the incomes of which he (the holder) has been deprived. Incomes received from unlawful use of a commercial (industrial) secret shall be considered unjust enrichment.

4. A person who discloses a commercial (industrial) secret may be released from liability if he proves that the disclosure of that secret is justified by the interests of public safety.

5. Information shall be considered to be a professional secret if, according to the laws or upon an agreement, it must be safeguarded by persons of certain professions (advocators, doctors, auditors, etc.). This information is received by the indicated persons in performance of their duties provided for by laws or contracts. The cases when the information received in exercise of professional rights and in performance of professional duties shall not be considered professional secret are established by laws. Damage resulting from unlawful disclosure of a professional secret shall be compensated upon general grounds established by this Code.

 

Part IV

TIME-LIMITS

 

Chapter VI

General provisions

 

Article 1.117. Definition of a time-limit

1. A time-limit is a period of time determined by laws or a transaction or established by a judicial authority and fixed by a calendar date or by the termination of a period expressed in years, months, weeks, days or hours.

2. A time-limit may also be defined by indicating an event that must inevitably occur.

3. Time-limits may be restoratory, acquisitionary or resolutory.

4. A restoratory time-limit is a period which may be restored by the court after its expiration, providing it was exceeded due to substantial reasons.

5. An acquisitionary time-limit is a period after the expiration of which a certain civil right or duty is acquired.

6. A resolutory time-limit is a period after the expiration of which a certain civil right or duty expires. The resolutory time-limits may not be restored by a court or arbitration.

 

Article 1.118. Commencement of a time-limit

1. The moment from which a time-limit begins shall be 0 hours 00 minutes of the next day that follows the calendar date or the event by which its beginning is defined, unless law provide for otherwise.

2. A fixed time-limit that is expressed in hours shall begin from the moment defined by laws or one or both parties.

 

Article 1.119. Expiration of a time-limit expressed in years and months

1. A time-limit expressed in years shall expire at midnight on the corresponding day and month of the last year of the time-limit indicated as the dies ad quem (the day on which the time-limit expires).

2. A time-limit expressed in months shall expire at midnight on the corresponding day of the last month of the time-limit indicated as the dies ad quem.

3. In the event where in the time-limit expressed in years or months there is no corresponding day in the last month, the day of maturity shall be the last day of the relevant month.

 

Article 1.120. Expiration of a time-limit expressed in weeks

A time-limit expressed in weeks shall expire at midnight on the corresponding day of the week indicated as the dies ad quem.

 

Article 1.121. Inclusion of official holidays and weekends

1. Official holidays and weekends shall be included when calculating a time limit.

2. In the event where the day on which a time-limit expires is a day of an official holiday or a weekend, the time-limit shall be extended to include the first working day thereafter.

 

Article 1.122. Performance of actions on the dies ad quem

1. An action for the performance of which a time-limit is fixed shall have to be performed before midnight of the dies ad quem. Where an act has to be performed in an institution, it must be performed before the end of the normal office or business hours of that organisation on the dies ad quem.

2. Any applications and information in writing delivered to the post office or telegraph, or transmitted by other means of communication before midnight of the dies ad quem shall be considered to have been performed on time.

 

Article 1.123. Legal significance of a time-limit

1. If arising of a duty is made dependent upon the expiration of a certain time-limit, the performance of the duty may not be demanded before the expiry of that time-limit.

2. If certain legal effects of a transaction are made dependent upon the maturity of a time-limit, a transaction or obligation shall terminate with the expiry of the time-limit.

3. It shall be presumed that a time-limit takes effect in favour of a debtor except in the cases where:

1)         the debtor is put on bankruptcy proceedings;

2)         the debtor destroys the security provided for the performance of an obligation;

3)         the debtor fails to provide a security of performance of an obligation he was bound to provide.

 

Chapter VII

Prescription

 

Article 1.124. Concept of prescription

Prescription is a time period established by laws during which a person can defend his violated right by bringing an action.

 

Article 1.125. Time limits of prescription

1. General prescription comprises a period of ten years.

2. In respect of concrete kinds of claims, abridged prescription shall be established by this Code and other laws of the Republic of Lithuania.

3. Abridged one-month prescription shall apply to claims arising from the results of tender.

4. Abridged three-month prescription shall apply in respect of claims for declaring voidable the decisions of the bodies of a legal person.

5. Abridged six-month prescription shall apply in respect of:

1) claims arising from the exaction of penalties;

2) claims arising from shortage in the goods sold.

6. Abridged six-month prescription shall apply with respect to claims arising from the relationships between communication enterprises and their clients regarding dispatches sent within the territory of Lithuania, or abridged one-month prescription when the dispatches were sent abroad. 

7. Abridged one-year prescription shall be applied with respect to claims arising from the legal relationships of insurance.

8. Abridged three-year prescription shall be applied with respect to claims for the compensation of damage, including claims for the compensation of damage caused by defective production.

9. Abridged five-year prescription shall be applied with respect to claims for the recovery of interest and any other periodical payments.

10. Claims arising from defects of the work performed shall be prescribed in the abridged prescription established in Book Six of this Code.

11. Claims, arising from contracts for transportation of goods, passengers or baggage shall be prescribed in the abridged prescription established by the codes (laws) regulating separate types of transport.

12. Any agreement of the parties with an intention to modify legal regulation of prescription, i.e. to modify the time-limit and the calculation thereof, shall be prohibited.

 

Article 1.126. Application of prescription

1. A claim to protect a violated right shall be accepted by the court irrespective of the expiry of prescription.

2. The expiration of prescription shall be effected by the court exclusively if invoked by a party to the dispute.

3. Prescription may not be renounced in advance.

 

Article 1.127. Commencement of prescription

1. Prescription shall start its run from the day on which the right to bring an action may be enforced. The right to bring an action arises from the day on which a person becomes aware or should have become aware of the violation of his right. Exceptions to this rule shall be established by this Code and other laws of the Republic of Lithuania. 

2. Where there is a time-limit established for the performance of an obligation, prescription of a claim arising from such obligation shall start its run upon the expiry of the time-limit allotted for the performance of that obligation.

3. Where a time-limit for the performance of an obligation is not established, prescription shall run from the moment when a claim to perform the obligation is brought.

4. Prescription of claims arising from regressive obligation shall start its run from the moment when the principal obligation is performed.

5. In the event of a continuous infringement, i.e. it happens every day (a person fails to perform the actions he is bound to perform, or performs the actions he has no right to perform, or does not discontinue another violation), prescription for actions brought upon activity or inactivity that occurred on a concrete day shall start its run from that every day.

 

Article 1.128. Prescription of claims arising from an obligation upon subrogation

Substitution of persons in an obligation shall not affect the course of prescription Ė the time-limit and the procedure of its calculation, unless laws provide for otherwise.

 

Article 1.129. Suspension of prescription

1. Prescription shall be suspended if:

1) an extraordinary event that cannot be prevented in certain circumstances (force majeure) hinders to bring an action;

2) the Government of the Republic of Lithuania establishes a postponement of the performance of obligations (moratorium);

3) the plaintiff or defendant serves in a unit of the armed forces of the Republic of Lithuania where martial law is imposed;

4) no guardian or curator is appointed to a legally incapable person or to a person whose legal active capacity is limited;

5) the parties to an obligation are spouses;

6) the parties to an obligation are a guardian and the person under guardianship, or a curator and the person under curatorship;

7) the parties to an obligation are parents and their minor children;

8) the effect of the law or any other legal act regulating relationships of the dispute is suspended;

2. The run of prescription shall be suspended only in the event when the circumstances indicated in paragraph 1 of this Article occured or continued to exist during the last six months of the prescription; where the time-limit of the prescription does not exceed six months, the run of the prescription shall be suspended if the circumstances indicated in paragraph 1 of this Article occured or continued to exist during the whole period of the time-limit of the prescription.

3. Suspended prescription resumes its run from the day when the circumstance which conditioned such suspension ceases to exist. In that event, the remaining part of the time-limit shall be prolonged by six months; if the time-limit of prescription is shorter than six months, it shall be prolonged by the whole duration of the time-limit.

 

Article 1.130. Interruption of prescription

1. Prescription shall be interrupted by bringing an action within the procedure established by laws.

2. Prescription shall also be interrupted by actions of a debtor by which the debtor acknowledges his obligation to the creditor.

3. An interrupted time-limit of prescription shall be resumed from the moment when the cause of such interruption ceases to exist. An interruption of prescription resulting from bringing an action shall be resumed from the time when the judgement thereon acquires the authority of the final judgement (res judicata), provided that an identical claim can be forwarded from the disputed legal relationship. The period that expired before the interruption shall not be included into the new time-limit of prescription.

4. No interruption in the time-limit of prescription shall occur where the suit is discontinued by the court due to the fault of the plaintiff. Refusal to accept the complaint or its withdrawal by the plaintiff shall likewise have no effect of interrupting prescription.

5. If an action brought in criminal proceedings is discontinued, prescription commenced before this action was brought shall continue its run from the day when the verdict by which the action was discontinued becomes finally binding.

 

Article 1.131. Legal effects of the expiration of a time-limit of prescription

1. The expiration of a time-limit of prescription prior to the date of bringing an action shall serve as valid grounds for dismissal of the claim.

2. If the court acknowledges the time-limit of prescription as expired due to important reasons, the violated right must be protected and the expired time-limit restored.

3. Questions of the ownership of property, for revindication of which prescription has expired, shall be regulated by the provisions of Book Four of this Code.

 

Article 1.132. Suspension, interruption and restoration of abridged prescription

The provisions regulating suspension, interruption and restoration of prescription (Articles 1.129 to 1.131 of this Code) shall likewise be applied in respect of abridged prescription except in cases where laws provide for otherwise.

 

Article 1.133. Consequences arising when a debtor performs an obligation after the expiration of a time-limit of prescription

Where a debtor performs his obligation after the expiration of the time-limit of prescription, he shall have not right to claim restitution even if at the time of the performance of his obligation he did not know that the time-limit of prescription had expired.

 

Article 1.134. Claims not subject to prescription

1. The following claims shall not be prescribed:

1) claims arising from the violation of personal non-property rights, except in cases established by laws;

2) claims of depositors for repayment of their accounts deposited in a bank or any other credit institution;

3) other claims in cases established by other laws.

 

Article 1.135. Application of prescription with respect to accessory claims

Expiration of prescription with respect to the principal claim shall have the same effect likewise on the accessory claims (penalty, pledge, suretyship, etc.), even though the prescription of the latter may not have expired.

 

PART V

Exercise and protection of civil rights

 

CHAPTER VIII

PRINCIPLES OF EXERCISE OF CIVIL RIGHTS AND THE WAYS OF THEIR PROTECTION

 

Article 1.136. Grounds for the arisal of civil rights and duties

 1. Civil rights and duties shall arise on the grounds established by this Code and other laws, also from actions performed by natural persons and organizations which, though not determined by laws, create civil rights and duties within the general principles and the meaning of the civil laws.

2. Pursuant to paragraph 1 of this Article, civil rights and duties shall arise:

1) from contracts and other transactions provided for by this Code and other laws, likewise from such transactions which might not be stipulated by the laws but not at variance with these laws;

2) from court judgements;

3) from administrative acts that cause civil legal effects;

4) as a result of creating intellectual property;

5) on the grounds damage, as well as on the grounds of the reception of property not due or of unjust enrichment;

6) on the grounds of events or actions (active or passive) to which the arising of civil legal  effects is linked by laws.

 

Article 1.137. Enjoyment and exercise of civil rights and performance of civil duties

1. Persons shall freely enjoy their civil rights at their own discretion, including the right to protection.

2. Persons, while exercising their rights and performing their duties, must obey laws, respect rules of public welfare and principles of good morals, good faith, reasonableness and justice.

3. A person shall be forbidden to abuse his own right, i.e. there being no legal ground, no civil rights may be exercised in a manner or by means intended to violate other personsí rights and interests protected by laws; or to restrict other persons in their rights and interests protected by laws; or with the intent of doing damage to other persons; or where this would be contrary to the purpose of the subjective right.  Abuse of a right that causes injury to other persons shall be the grounds for the implementation of civil liability. A court may refuse to protect the subjective right of which the person abuses.

4. The exercise of civil rights may not be used in bad faith and with the intent of unlawfully limiting competition or in abuse of the dominating position in the market.

5. Civil rights shall be protected by the laws, except in cases when the exercise of these rights is inconsistent with their purpose, public order, good usages (bonus mores) or the principles of public morals.

6. A renouncement of exercise of a subjective civil right shall not abolish the civil subjective right, except in cases established by laws.

 

Article 1.138.  Protection of civil rights

1. Civil rights shall be protected by the court acting within its competence and according to the procedure established by laws. The ways of protecting civil rights are the following:

1) acknowledgement of rights;

2) restoration of the situation that existed before the right was violated;

3) prevention of unlawful actions or prohibition to perform actions that pose reasonable threat of the occurrence of damage (preventive action);

4) ad judgement to perform an obligation in kind;

5) interruption or modification of a legal relationship;

6) recovery of pecuniary or non-pecuniary damage from the person who infringes the law and, in cases established by the law or contract, recovery of a penalty (fine, interest);

7) declaration as voidable of unlawful acts of the state or those of the institutions of local governments or the officials thereof in the cases established in paragraph 4 Article 1.3 of this Code;

8) other ways provided by laws.

 

Article 1.139. Self-defense

1. Self-defense may be exercised for the purposes of protecting oneís civil rights only in the events established by this Code.

2. Methods and means of self-defense must correspond to the nature of the unlawful act and cannot exceed the limits of self-defense that exist in every concrete event.

3. In exercising self-defense, the rights and freedoms of individuals must be respected, as well as the requirements of laws must be observed.

 

 

 

BOOK TWO

PERSONS

 

PART I

NATURAL PERSONS

 

CHAPTER I

PASSIVE AND ACTIVE CIVIL CAPACITY OF NATURAL PERSONS

 

SECTION ONE

PASSIVE CAPACITY

 

Article 2.1. The concept of passive civil capacity of natural persons

Every natural person shall have the full enjoyment of civil rights (passive civil capacity)

 

Article 2.2. Beginning and end of passive civil capacity of natural persons

1.     Passive civil capacity of a natural person shall begin at the moment of his birth and end at the moment of his death.

2.     The beginning of rights prescribed by law to a conceived but yet unborn baby shall depend on the act of its birth.

3.     In the event of the impossibility to establish whether a baby was born alive or dead it shall be presumed that it was born alive.

4.     Where certain ensuing legal consequences depend on the fact which of natural persons died at an earlier date and where it is impossible to establish the moment of the act of death of them each, it shall be presumed that the said natural persons died at the same time.

 

Article 2.3. Acts of birth and death of natural persons

1.     The first independent breath shall be considered to be the act of birth of a natural person.

2.     Full and irreversible stoppage of blood circulation or stoppage of all brain functions shall be considered to be the act of death of a natural person.

3.     Criteria for stating the acts of birth or death shall be prescribed by law.

 

Article 2.4 Content of the passive civil capacity of natural persons

1.     According to law, natural persons shall be entitled to property as the object of private ownership and shall enjoy the right to engage in commercial activities, establish enterprises or other legal entities, inherit property and bequeath it, choose a sphere of activities and residence, to have invention or industrial sample rights as well as other property and individual non-property rights, which are protected by the civil law.

 

2.     Natural persons who, in accordance with the procedure established by the law, are engaged in commercial activities shall be deemed to be entrepreneurs.

3.     Every person engaged in business or practising of his profession shall have to administer his property and everything related to his undertaking or practising of his profession as well as to safeguard documents and other information about his property, undertaking or practising of his profession in the manner, which would enable every person, having a legal interest, at any time, to receive comprehensive information about the property rights and obligations of the person in question.

 

SECTION TWO

ACTIVE CAPACITY

 

Article 2.5. Active civil capacity of natural persons

1.          On attaining full age, i.e. when a natural person is eighteen years of age, he, by his acts, shall have full exercise of all his civil rights and shall assume civil obligations.

2.            Where the law provides for the possibility of a natural person to enter into marriage before he is eighteen, the person, who has not yet come of the given age, shall acquire full active civil capacity at the moment of entering into marriage. If at a later date this marriage is dissolved or nullity of marriage is declared for reasons not related to the age of the parties to marriage  a minor shall not loose his full active civil capacity.

 

Article 2.6. Prohibition to impose restrictions on the passive or active civil capacity of Natural Persons on the Grounds which are not Prescribed by Law.

1.          Restrictions on the passive or active civil capacity may not be imposed on anyone in any other manner except by express provision of law.

2.          Transactions, acts of public or municipality institutions or officials, which impose restrictions on the passive or active civil capacity, are deemed to be null and void except in cases where the said  transactions and acts are prescribed by law.

 

Article 2.7. Active civil capacity of minors under fourteen years of age

1.       Contracts on behalf and in the name of minorís under fourteen years of age name shall be concluded by their parents or guardians.

2.       Upon entering into contracts and enforcing them parents and guardians shall have to act exceptionally in the interest of minors. Rights and obligations of parents and guardians in administering the property of minors are laid down in the provisions of Book three of the given Code.

3.       Minors under fourteen years of age shall enjoy the right to enter alone into contracts to meet their ordinary and usual needs, conclude contracts aiming at gratuitous personal gain, as well as conclude contracts related to the use of their own earnings or money provided by their legal representatives or other persons if the said contracts fail to have a prescribed notarial or any other specific form.

4.       Liability of legal representatives for contractual obligations of minors, who are under fourteen years of age, shall be prescribed by law if they fail to prove that they are not at fault for the  breach of the said obligations.

5.       Where a contract concluded by a minor under fourteen years of age is not recognised to be null and void and where the said person becomes legally capable, the other party to the contract may apply in writing to the party to the contract, who has become legally capable, and request the approval  of the contract within the time limits, which may not be shorter than one month, determined in the application. Where the person fails to notify about his refusal to approve  the contract within the proposed time limits, he shall be deemed to have approved  the contract.

 

Article 2.8. Active civil capacity of minors over fourteen and under eighteen years of age

 

1.          Minors over fourteen and under eighteen years of age shall enter into contracts with the consent of parents or guardians. The form of consent shall have to correspond to the form of the contract concluded. Contracts concluded without the consent of legal representatives shall be deemed valid if the consent of the legal representative is given after the contract has been concluded.

 

2.          Minors over fourteen but under eighteen years of age, apart from the rights laid down in paragraph 3 of Article 2.7, shall have the right to dispose of their income and property acquired for that income, implement copyright to their works, inventions, industrial design as well as the right to enter into contracts alone to meet their ordinary and usual needs.

 

3.          Where there are sufficient grounds, the court may be called upon to rule on an application filed by child care institutions or other interested persons to impose restrictions on or divest minors, who are over fourteen but under eighteen years of age, of the right to dispose independently of their income and property.

 

4.          The right of minors over fourteen but under eighteen years of age to make deposits in credit institutions and dispose of them shall be prescribed by law.

 

5.            Minors over fourteen but under eighteen years of age shall alone be liable for their contractual obligations.

 

Article 2.9. Emancipation of minors

1.          Where a minor is sixteen years of age the court may emancipate him after he or his guardian , parents, institutions of guardianship or he himself has filed a declaration to that effect with the court if there are sufficient grounds to believe that he may exercise all civil rights and discharge his obligations alone. In all cases a minor has to give his consent to be emancipated.

 

2.          The court may annul minorís emancipation on the request of parents or child care institutions in the event that exercising his rights and discharging his obligations a minor causes damage to his own or other personsí rights or lawful interests.

 

SECTION THREE

DECLARATION OF INCAPACITY OR LIMITATION OF CAPACITY OF A NATURAL PERSON

 

Article 2.10.  Declaration of incapacity of a natural person

1.          Natural person who as a result of mental illness or imbecility is not able to understand the meaning of his actions or control them may be declared incapable. The incapable person shall be placed under guardianship.

2.          Contracts on behalf and in the name of the person, who was  declared incapable, shall be concluded by his guardian. Rights and obligations of a guardian are laid down in the provisions of Book Three of the given Code.

3.          Where a person who was declared incapable gets over his illness or the state of his health improves considerably the court shall recognise his capacity. After the court judgement becomes res judicta,  guardianship to the said person shall be revoked.

4.          The spouse of the person, parents, adult children, care institution or a public prosecutor shall have the right to request the declaration of personís incapacity by filing a declaration to the given effect. They shall also have the right to apply to the court requesting the declaration of personís capacity.

 

Article 2.11.  Limitation of active civil capacity of natural persons

1.          Where natural persons abuse alcoholic beverages, drugs, narcotic or toxic substances the court may impose restrictions on their civil capacity. After personís capacity has been imposed  limitations , he shall be placed under guardianship. Rights and obligations of a guardian  are laid down in the provisions of Book three of the given Code.

2.         Upon imposition of  a limitation on a personís capacity he may enter into contracts related to the disposition of his property, receive his salary, pension or any other income and dispose of it only with the consent of his guardian , with the exception of contracts, which he concludes to meet his ordinary and usual needs. Person whose capacity has been imposed  limitations may not without the consent of his guardian curator:

1)                        borrow and lend money, when the sum exceeds two average monthly wages (without deductions);

2)            extend a guarantee or offer a surety to other person;

3)            conclude contracts of alienation or encumbrance of rights to his property ;

4)            conclude an arbitration agreement;

5)    file a statement of claim related to that part of his active civil capacity where his active capacity is limited;

6)    come into inheritance or disclaim an inheritance;

7)    conclude a contract for the construction of a building (apartment) or major repairs;

8)    conclude a contract of tenancy  or a loan-for-use contract;

3.          The court may request the consent of the guardian curator to conclude other contracts, which are not laid down in paragraph 2 of the given Article.

4.          Where the reasons for which personís capacity was imposed  limitations are no more valid the court shall lift the  limitations on personís capacity. After the court judgement has come into force, guardianship  to a person under which he has been placed shall be  annulled.

5.          A person of full age who has limited capacity shall be alone  liable for his contractual and non-contractual obligations.

6.          A request to impose  limitations on personís civil capacity may be filed by the spouse of the said person, his parents, adult children,  institution of guardianship  or the public prosecutor. The person whose capacity was imposed  limitations shall also have the right to apply to the court requesting to lift the  limitations on his capacity.

7.          Provisions of the articles of Part VII of Book Three of the given Code are applied mutatis mutandis to relations, arising in the exercise and protection of the property and non-property rights of an incapable natural person or a natural person of  limited capacity.

 

SECTION FOUR

DOMICILE AND RESIDENCE OF A NATURAL PERSON

 

Article 2.12. Domicile of a Natural Person

Being an expression of personís relationship with the state or part of its territory, domicile of a natural person shall be that state or its part, in which he permanently or ordinarily resides, regarding that state or its part to be the seat of his personal, social and economic interests.

1.       A natural person is deemed to be domiciled in the Republic of Lithuania when of his own will he establishes and maintains the only or principal residence with the intention to make it a seat of his personal, social and economic interests. This intention, inter alia, may manifest itself by personís actual presence on the territory of the Republic of Lithuania as well as the establishment of personal or business relations between him and the persons of the Republic of Lithuania or by some other criteria.

2.          A natural person may have only one domicile. A person called to a temporary or revocable public office shall retain his domicile.

3.          Domicile of a natural person shall be deemed unchanged until he changes it to another domicile.

4.          Domicile of a married person shall not depend on the domicile of his spouse, although the domicile of one of the spouses is the fact, which has to be taken into consideration in establishing the domicile of the other spouse.

 

Article 2.13. Domicile of Legally Incapable Natural Persons

1.       Domicile of legally incapable natural person shall be deemed to be the domicile of his guardian if the guardian and his ward reside in the same state.

2.       Where a legally incapable person resides in a different from his guardian state and the said state is the seat of personal, social and economic interests of the legally incapable person he shall be deemed to be domiciled in that state.

 

Article 2.14. Domicile of Juvenile Natural Persons

1.Domicile of minor natural persons shall be deemed to be the domicile of their parents or guardians (foster parents).

2.Where parents of a minor natural person fail to have a common domicile, the domicile of a minor shall be deemed to be the domicile of one of his parents with whom the minor resides most of the time, unless the court has established the domicile of a minor with one of his parents.

 

Article 2.15. Right of the Parties to the Contract to Choose Domicile

The parties to a contract shall enjoy the right to choose, in writing, domicile with the view to the performance of the contract and the exercise of the rights arising from the said contract.

 

Article 2.16. Place of Residence of a Natural Person

1.The residence of a person shall be the place where he ordinarily resides.

2.Where a person has more than one residence, the seat of his principal establishment (where the person has property or a major part of property, where he has his job or where he lives the longest) shall be deemed to be his principal residence. In such case personís principal residence shall be taken into consideration in establishing his domicile.

3.A person, whose domicile cannot be determined with certainty in accordance with the criteria laid down in Article 2.12 of the given Code, shall be deemed to be domiciled at the place of his residence. This rule shall, too, be applied to refugees from the state, which was their domicile unless they were domiciled in the Republic of Lithuania in accordance with the provisions of Article 2.12 of the given Code.

 

Article 2.17. Criteria for the Establishment of Residence

1.          Length and continuity of actual residence at the place, data on personís residence in public registers as well as his own public statements about his residence shall be taken into account in determining residence of a natural person.

2.          A person whose residence is unknown or cannot be determined with certainty shall be deemed to live at the place of his last known residence.

3.          A natural person must notify, in writing, the other party to the contract as well as his creditors or debtors about the change of residence. Where a person fails to  perform this obligation the other party to the contract and creditors shall have the right to send notifications and perform other acts at the place of his last known residence.

 

SECTION FIVE

ACTS OF CIVIL STATUS

 

Article 2.18. State Registration of Acts of Civil Status

The state conducts mandatory registration of the following acts of civil status:

1)      birth of a person;

2)      death of a person;

3)      entering into marriage;

4)      dissolution of marriage

5)      adoption;

6)      recognition and establishment of parenthood;

7)      change of the first name and surname;

8)      change of designation of sex of a person;

9)      partnership.

 

Article 2.19. The Order of Registration of Acts of Civil Status

1.          Acts of civil status, except partnership, shall be registered in the registry offices by making respective entries into the register of civil status and issuing to the person the certificate of a respective entry of the act.

2.          The procedure of registration of acts of civil status, alterations of the acts of civil status, rectification and reconstitution of acts is established in Book Three of the given Code.

 

PART TWO

ENJOYMENT AND EXERCISE OF SPECIFIC CIVIL RIGHTS OF NATURAL PERSONS

 

Article 2.20. Right to a Name

1.          Every natural person shall enjoy the right to a name. Right to a name includes a right to a surname, name (names) and pseudonym. It shall be prohibited to gain rights and assume obligations under the cover of other personís name.

2.          A natural person shall have the right to use his full or abbreviated name (names) and request other persons not to use and not to act in his name without his authorisation.

3.          The basis and the procedure for the change of name and surname shall be provided by law.

4.          Having changed his surname or name a natural person must inform his debtors and creditors thereof. Where the person fails to perform this obligation he shall run the risk of negative consequences ensuing after his failure to notify about the change of his name or surname.

 

Article 2.21. Protection of the Right to a Name

1.          A natural person whose right to a name has been infringed as a result of other personís unlawful acts in his name or some other mode of unlawful appropriation of his name or he is prevented from using it, shall have the right to apply to court and request to oblige the guilty person to discontinue the said acts and redress the property  and  non-pecuniary damage incurred on him by such unlawful acts.

2.          After the death of a natural person such claim may be presented by his spouse, parents or children.

 

Article 2.22. Right to an Image

1.          Photograph (or its part) or some other image of a natural person may be reproduced, sold, demonstrated, published and the person may be photographed only with his consent. Such consent after natural personís death may be given by his spouse, parents or children.

2.          Where such acts are related to personís public activities, his official post, request of law enforcement agencies or where a person is photographed in public places, consent of a person shall not be required. Personís photograph (or its part) produced under the said circumstances, however, may not be demonstrated, reproduced or sold if those acts were to abase personís honour, dignity or damage his professional reputation.

3.          Natural person whose right to image has been infringed enjoys the right to request the court to oblige the discontinuance of the said acts and redressing of the property and  non-pecuniary  damage. After personís death, such claim may be presented by his spouse, children and parents.

 

Article 2.23. Right to Privacy and Secrecy

1.          Privacy of natural person shall be inviolable. Information on personís private life may be made public only with his consent. After personís death the said consent may be given by personís spouse, children and parents.

2.          Unlawful invasion of personís dwelling or other private premises as well as fenced private territory, keeping his private life under observation, unlawful search of the person or his property, intentional interception of personís telephone, post or other private communications as well as violation of the confidentiality of his personal notes and information, publication of the data on the state of his health in violation of the procedure prescribed by laws and other unlawful acts shall be deemed to violate personís private life.

3.          Establishment of a file on another personís private life in violation of law shall be prohibited. A person may not be denied access to the information contained in the file except as otherwise provided by the law. Dissemination of the collected information on the personís private life shall be prohibited unless, taking into consideration personís official post and his status in the society, dissemination of the said information is in line with the lawful and well-grounded public interest to be aware of the said information.

4.          Public announcement of facts of private life, however truthful they may be, as well as making private correspondence public in violation of the procedure prescribed in paragraphs 1 and 3 of the given Article as well as invasion of personís dwelling without his consent except as otherwise provided by the law, keeping his private life under observation or gathering of information about him in violation of law as well as other unlawful acts, infringing the right to privacy shall form the basis for bringing an action for repairing the property and  non-pecuniary damage incurred by the said acts.

5.          Where the said acts are committed on the basis of reasoned  judgement of the court, restrictions imposed on the publication and collecting of information about the person which are laid down in the provisions of paragraphs 1 and 3 of the given Article shall not be applied.

 

Article 2.24. Protection of Honour and Dignity

1.          A person shall have the right to demand refutation in judicial proceedings of the publicised data, which abase his honour and dignity and which are erroneous as well as redress of the property  and non-pecuniary damage incurred by the public announcement of the said data. After personís death this right shall pass on to his spouse, parents and children if the public announcement of erroneous data about the deceased person abases their honour and dignity as well. The data, which was made public, shall be presumed to be erroneous as long as the person who publicised them proves the opposite.

2.          Where erroneous data were publicised by a mass medium (press, television, radio etc.) the person about whom the data was publicised shall have the right to file a refutation and demand the given mass medium to publish the said refutation free of charge or make it public in some other way. The mass medium shall have to publish the refutation or make it public in some other way in the course of two weeks from its receipt. Mass medium shall have the right to refuse to publish the refutation or make it public only in such cases where the content of the refutation contradicts  good morals.

3.          The request to redress the property or non-property non-pecuniary damage shall be investigated by the court irrespective of the fact whether the person who has disseminated such data refuted them or not.

4.          Where a mass medium refuses to publish the refutation or make it public in some other way or fails to do it in the term provided in paragraph 2 of the given Article, the person gains the right to apply to court in accordance with the procedure established in paragraph 1 of the given Article. The court shall establish the procedure and the term for the refutation of the data, which were erroneous or abased other personís reputation.

5.          The mass medium, which publicised erroneous data abasing personís reputation shall have to redress property and  non-pecuniary damage incurred on the person only in those cases, when it knew or had to know that the data were erroneous as well as in those cases when the data were made public by its employees or the data was made public anonymously and the mass medium refuses to name the person who supplied the said data.

6.          The person who made a public announcement of erroneous data shall be  exempted from civil  liability in cases when the publicised data is related to a public person and his state or public activities and the person who made them public proves that his actions were in good faith  and meant to introduce the person and his activities to the public.

7.          Where the court judgement, which obliges the refutation of erroneous data abasing personís honour and dignity, is not  executed , the court may issue an order to recover a fine from the defendant for each day of default. The amount of the fine shall be established by the court. It shall be recovered for the benefit of the defendant irrespective of the redress for the inflicted damage.

8.          Provisions of the given article shall, too, be applied to protect the tarnished professional reputation of a legal person.

9.          Provisions of the given article shall not be applied to those participants of judicial proceedings who are not held responsible for the speeches delivered at court hearings or data made public in judicial documents.

 

Article 2.25. Right to the Inviolability and Integrity of the Person

1.           A natural person shall be inviolable. No natural person may be made to undergo scientific or medical test or examination against his will and without his free consent (in cases of personís incapability Ė without consent of his legal representative). Such consent shall be given in writing.

2.          Intervention into a human body, removal of parts of his body or organs shall be possible only with his consent. Consent to a surgical operation shall be given in writing. Where a person is incapable his guardian shall give his consent, in the event of castration, sterilisation, abortion, operation, removal of organs of an incapable person, however, authorisation of the court shall be necessary. Such consent shall not be necessary in emergency cases when personís life is endangered and has to be saved while the person himself is unable to express his will.

3.          A natural person may determine, in writing, the nature of his funeral and the disposal of his body after his death.

4.          The procedure for the donation and transplantation of human tissues and organs is established in a separate law.

5.           Human body, its parts or organs and tissues may not become subjects of commercial contracts. Such contracts shall be deemed null and void.

6.          The person whose right to the inviolability of and integrity of his person has been infringed shall enjoy the right to request the guilty persons to redress property and  non-pecuniary damage incurred on him.

 

Article 2.26. Prohibition to Restrict the Freedom of a Natural Person

1.          Freedom of a natural person shall be inviolable. A capable person may be placed under any supervision or imposed any restrictions only after his consent has been given as well as in other cases prescribed by law.

2.          Where a personís life is endangered or he has to be hospitalised to protect the public interests personís consent to the medical care shall not be required.

3.          Psychiatric examination of a person may be conducted only with his consent or after the authorisation of the court has been granted. Consent to conduct psychiatric examination of an incapable person may be given by his guardian or by the court. Where a personís life is seriously endangered urgent psychiatric care may be taken without personís consent.

4.          A person may be confined in a psychiatric institution only with his consent and after the authorisation of the court has been granted. Where a person is seriously ill with a mental disease and where there is a real danger that his actions may cause considerable damage to his or other peopleís health or life and property, the person may be hospitalised in a compulsory manner for the period not exceeding two days. Compulsory hospitalisation may be extended only after the authorisation of the court in accordance with the procedure prescribed by law has been granted. Where a person is incapable, his guardian may give his consent to the said personís compulsory hospitalisation for the period not exceeding two days. Compulsory hospitalisation of an incapable person may be extended only after the authorisation of the court following the procedure prescribed by law has been granted.

5.          Persons who unlawfully imposed restrictions on the freedom of a natural person shall have to redress property and  non-pecuniary damage incurred on the said person.

 

Article 2.27. Right to the Change of the Designation of  Sex

1.          An unmarried natural person of full age enjoys the right to the change of designation of sex in cases when it is feasible from the medical point of view. The application to the given effect shall have to be made in writing.

2.          The conditions and the procedure for the change of designation of sex shall be prescribed by law.

 

CHAPTER THREE

RECOGNITION OF PERSONíS ABSENCE OR DECLARATORY JUDGEMENT OF DEATH

 

Article 2.28 Recognition of personís absence

1.          Where for the period of one year in personís domicile there is no information about his whereabouts the court may recognise the person to be an absentee.

2.          Where there is no possibility to establish the day when the last data about an absentee have been received, the first of January of the following year shall be deemed to be the beginning of personís absence.

 

Article 2.29. Protection of the Property of an Absentee

1.          After application of the interested persons or the public prosecutor has been filed, the court shall appoint a temporary administrator of absenteeís property. Absenteeís spouse, close relatives or personís who are motivated to preserve his property may be appointed temporary administrators. The temporary administrator must take the inventory of the property and take measures to safeguard it. The court shall establish the amount of remuneration for the administratorís services with the exception of cases where the temporary administrator is personís spouse or a close relative. They shall fulfil the said functions free of charge.

2.          Temporary administrator shall administer the property, shall maintain the persons whom the absentee is obliged to maintain and shall pay the absenteeís debts. Temporary administrator shall have to obtain the authorisation of the court to dispose of the property, mortgage it or restrict the right to property in some other manner.

3.          Where the absenteeís property is an enterprise the court shall appoint its administrator. The administrator shall act in his ownerís name.

4.          Where the court gives a judgement that the person is recognised an absentee, a permanent administrator to his property shall be appointed by the court judgement.

5.          A person may be appointed an administrator to the property only with his consent.

 

Article 2.30. Revocation of the Judgement to Recognise the Person an Absentee

1.          In the event that an absentee returns or his whereabouts become known the court shall revoke its judgement to recognise the person an absentee and the administration to his property.

2.          Revenues received by the administrator from the property of the absentee shall be recovered by the owner of the property who has returned and who has to reimburse the property administrator for all expenses related to the administration thereof.

 

Article 2.31. Declaratory Judgement of Death

1.          In the event that no information on personís whereabouts is obtained in his domicile for a period of three years and where he disappeared under such circumstances, which posed a mortal threat or give the grounds to suspect that he was killed in an accident, and no information about the person has been obtained for a period of six months, a declaratory judgement of natural personís death may be pronounced. The beginning of the said term is established in accordance with the rules laid down in paragraph 2 of Article 2.28 of the given Code.

2.          A soldier or other person who disappeared as a result of military actions may in judicial proceedings be declared dead but not earlier than two years as of the day of the end of military actions.

3.          A declaratory judgement of death may be pronounced for a person irrespective of the fact whether he was or was not recognised an absentee.

4.          The date of death for a person for whom a declaratory judgement of death was pronounced shall be deemed the day when the court judgement becomes res judicata . Where a declaratory judgement of death is pronounced for a person who disappeared under such circumstances, which posed mortal threat or give grounds to suspect that he was killed in an accident the court may consider the alleged day of the accident to be the date of his death.

5.          Specific location pointed out in the court judgement shall be considered to be the location of such personís death. Where it is impossible to establish a specific location of personís death the last known location of his whereabouts is deemed to be the location of his death.

6.          From the point of view of personís  civil rights and obligations, pronouncement of a declaratory judgement of his death shall equal the act of personís death.

 

Article 2.32. Consequences of the Return of a Person who was Declared Dead

1.          Where a person who was declared dead returns or his whereabouts become known the court revokes its judgement to declare the person dead.

2.          The person who has returned shall not have the right to request the recovery of his property, which has been inherited after a declaratory judgement of death was pronounced. However, in cases where a person was absent for serious reasons he shall enjoy the right, irrespective of the time of his return, to request the recovery of his property which is in possession of his heirs.

3.          A person who has returned shall also enjoy the right to request either the recovery of his property, which was gratuitously received by the third persons, or its value. He shall have, however, to compensate the person, who, in good faith, was in possession of his property, for all losses related to the recovery of the said property or its value.

 

PART II

LEGAL PERSONS

 

CHAPTER IV

GENERAL PROVISIONS

 

Article 2.33. Concept of a Legal Person

1.          A legal person shall be an enterprise or an organisation which has its business name, which may in its name gain and enjoy rights and assume obligations as well as act as a defendant and as a plaintiff in courts.

2.          Provisions of the PART II of the given book shall be applied to individual juridical forms of legal persons except as otherwise provided by the provisions of the given Code.

 

Article 2.34. Public and Private Persons

1.          Legal persons shall be divided into public and private persons.

2.          Public legal persons shall be legal persons established by the state or municipalities, their institutions or other non-profit-seeking persons whose goal is to meet public interests (state and municipality enterprises, state or municipality institutions, public institutions, religious communities, etc.).

3.          Private legal persons shall be legal persons, which aim at meeting private interests.

4.          Chapter VII of the given book shall be applied to the public legal persons in a subsidiary manner.

5.          Chapter IX of the given book shall not be applied to the public legal persons.

 

Article 2.35. State and Municipalities

1.              The state and municipalities shall be legal persons.

2.              State and municipality institutions the existence whereof is prescribed by the Constitution of the Republic of Lithuania shall be legal persons in the cases prescribed by law.

3.              With the exception of Articles 2.36, 2.74, 2.76, 2.80, 2.84, 2.85 Provisions of the Part II of the given book shall not be applied to the state and municipalities.

4.              State and municipality institutions specified in paragraph 2 of the given Article shall file with the register of legal persons documents and data, laid down in Articles 2.46 and 2.66 of the given Code.

 

Article 2.36. Participation of the State and Municipalities in Civil Relations.

1.       State, municipalities and their institutions shall be subjects of civil relations subject to the same grounds as other participants thereof.

2.        The state and municipalities shall gain civil rights, assume civil duties and implement them through respective public and municipality administration institutions.

 

Article 2.37. Religious Communities and Associations

1.          Traditional religious communities and associations shall be legal persons. Other religious communities and associations gain the rights of a legal person in accordance with the procedure established in Chapter V of the given book as well as in other laws.

2.          Structural units of religious communities and associations, which pursuant to the regulations of communities and associations, statutes or other norms fulfil the requirements provided in Article 2.33 of the given Code, shall be legal persons. These structural units shall file documents, testifying to their compliance with the requirements specified in the given paragraph, with the register of legal persons.

3.          Religious communities and associations and their structural units, which enjoy the rights of a legal person, shall act pursuant to their regulations, statutes and other norms inasmuch as they do not infringe the laws, and only Chapters IV and VI , Articles 2.84, 2.85 shall be applied to the said legal persons as well as Chapter V but only inasmuch as it fails to contradict the provisions of paragraph I of the given Article.

 

Article 2.38. Trade Unions

1.          Where the requirements of paragraph 2 of the given Article are fulfilled trade unions shall be considered to be legal persons.

2.          A trade union shall be formed when it has no less than 30 founders or when an enterprise, an institution or an organisation has no less than 30 founders and they account for no less than one fifth of all employees (while one fifth would account for no less than three employees) and if the general meeting of the trade union approves its statute and elects its managing bodies.

3.          Citizens of the Republic of Lithuania or natural persons domiciled in the Republic of Lithuania who are not younger than fourteen years of age and are employed on the basis of labour contracts or some other basis may be founders of a trade union.

4.          Provisions of Chapter V of the given book shall be applied to trade unions inasmuch as they fail to contradict the provisions of paragraph 1 of the given Article. Trade unions shall file documents testifying to their compliance with the requirements laid down in paragraph 2 of the given Article with the register of legal persons.

 

Article 2.39. Business Name of a Legal Person

1.          A legal person shall possess its business name enabling to distinguish it from other legal persons.

2.          Business name of a legal person shall be its property, which, however, may not be sold or conveyed in any other manner to become the property of the other person separately from the legal person.

3.          Business name of a legal person may not contradict the public order or good morals or mislead the society as to its incorporator, co-owner, registered office, purpose of activities, juridical form, identity of the legal person or similarity to business names of other legal persons, business names of foreign enterprises, institutions and organisations, as well as trademarks and service marks which are familiar to the Lithuanian society. Business name of a legal person may not mislead by its identity or similarity to the recognised well-known trademarks and service marks which were submitted for registration, and were registered prior to the said legal person.

4.          Where provisions of paragraph 3 of Article 2.46 of the given Code must be applied, business name of a legal person shall not be registered separately and shall be protected as of the day on which an application for the registration of a legal person is filed with the register of legal persons or a legal act has been adopted.

5.          Regulations of the register of legal persons may establish additional requirements for the business name of legal persons.

 

Article 2.40. Composition of the Business Name of Legal Person

1.          Business name of a legal person is composed of words or word-combinations used in their figurative or direct meaning.

2.          Business name of a legal person shall be composed by taking into consideration the norms of standard Lithuanian and shall not be composed of a generic word (or words) denoting directly the sort of objects or services of activity or a single toponym or of some other word which fails to possess a distinctive feature.

3.          Business name of a legal person may be composed only of letters, which may not be understood as words and numerals or their combinations only in cases when such business name is customary in the society. Where the consent has been given, business name of a legal person which is related to a foreign legal person or other organisation may be composed in such manner which would make the said name identical or similar to the business name of a foreign legal person or other organisation.

 

Article 2.41. Business Name of a Legal Person which is in the Process of Incorporation

1.          Incorporators of a legal person may apply to the register of natural persons and request to make a temporary entry of the business name of a legal person, which is in the process of incorporation, in the register of legal persons.

2.          Business name of a legal person, which is in the process of incorporation, shall be subject to the same rules as the business name of a legal person with the exception of paragraph 4 of Article 2.39 and Article 2.42 of the given Code.

3.          Entry of a business name of a legal person, which is in the process of incorporation shall be made in the register of legal persons for the period of six months and upon its expiry shall be deleted without prior notification thereof to the founders of the legal person.

 

Article 2.42. Right to the Business Name of a Legal Person

1.          It shall be prohibited to gain rights and assume obligations by using other legal personís business name as a cover or to use other legal personís business name without the latterís consent.

2.          Where legal personís right to a business name has been infringed by other personís unlawful use of the said personís business name or where the other person has or uses a business name, which fails to meet the requirements laid down in Article 2.39 of the given Code, the legal person shall have the right to apply to the court and request the court to oblige the legal person to discontinue the said unlawful acts or alter the business name and to redress the property and  non-pecuniary damage incurred by the said acts, while in the event that provisions of paragraph 1 of the given Article have been infringed Ė to request the person to return everything he has acquired by using other personís name as a cover or using the said name without the latterís consent.

 

Article 2.43. Alteration of the Business Name of a Legal Person

1.          Prior to the alteration of the business name a legal person shall have, one time, to make a public announcement thereof or notify, in writing, all creditors of the legal person.

2.          Where a legal person fails to discharge its obligation stipulated in paragraph 1 of the given Article he shall have to suffer the ensuing negative consequences related to its failure to notify about the alteration of its business name.

3.          The business name of a legal person shall be altered alongside with the alteration of incorporation documents, which are filed with the Register of legal persons only after the requirements of paragraph 1 of the given Article have been fulfilled.

4.         A legal person shall have the right to apply to the Register of legal persons and request to make a temporary entry in the Register of legal persons of the planned new business name. In such cases the provisions of Article 2.41 of the given Code shall be applied mutatis mutandis

 

Article 2.44. Information Supplied in the Documents of a Legal Person

1.           Documents of a legal person used in his business relations with other subjects (business letters, invoices, trade documents etc.) shall have to supply the following information:

1)                     business name of a legal person;

2)                     juridical form of a legal person;

3)                     head office of a legal person;

4)                     code of a legal person;

5)                     Register which stores and safeguards the data on the given legal person.

2.          Where a legal person has declared bankruptcy or is liquidated the information thereof must be indicated in the documents specified in paragraph 1 of the given Article.

3.          Where a legal person has to pay value-added tax, the payerís code shall have to be indicated in the documents specified in paragraph 1 of the given Article.

4.          Where the assets of a legal person are mentioned in the documents specified in paragraph 1 of the given Article, authorised capital and the amount of paid-in authorised capital shall have to be indicated as well.

 

Article 2.45. Member of the Legal Person

1.          A member of a legal person (shareholder, member, part-owner etc.) shall be the person, which enjoys the right of ownership to the property of a legal person, or the person, who, irrespective of his failure to maintain the right of ownership to the property of a legal person, acquires the obligatory rights and duties related to the legal person.

 

Article 2.46. Documents of Incorporation of a Legal Person

1.          Legal persons shall act in accordance with the documents of their incorporation: articles of incorporation, incorporation contract  or in cases provided by law Ė general regulations. According to the provisions of the given Code articles of incorporation shall have equal status with the regulations, statutes and other incorporation documents of legal persons.

2.          Provisions of incorporation documents shall be valid inasmuch as they do not contravene the mandatory  provisions of laws.

3.          Public legal persons may act in accordance with the law or, where the law provides for it, in accordance with the legal act on the incorporation of a public legal person adopted by the state or municipalities if the said act does not provide for the obligation of a public legal person to act in accordance with the statutes approved by the state or municipality institutions.

4.          Where incorporation documents of a legal person are not filed with the Register of legal persons within six months after they have been drafted and where other laws fail to provide for a different time limit, they shall be deemed void.

5.          Identity of signatures of natural persons who have signed the incorporation documents of a legal person shall have to be approved by a notary with the exception of derogations provided by the law.

 

Article 2.47. Articles of Incorporation of a Legal Person

1.          Articles of incorporation and in the event that a legal person fails to have articles of incorporation Ė incorporation contract or general regulations, where a legal person acts in accordance with the general regulations, or a legal act, where a legal person acts in accordance with the legal act, shall have to supply the following information:

1)         business name of a legal person;

2)         juridical form of a legal person;

3)         registered office of a legal person;

4)         goals of activities of a legal person;

5)         competence of the general meeting of members of a legal person and the procedure for its convening;

6)         bodies of a legal person and the procedure for their formation and dissolution or, where the bodies are not formed and the legal person exercises its rights through a member of a legal person Ė member of a legal person;

7)         the procedure for the alteration of the incorporation documents of a legal person;

8)         where the term of activities of a legal person is restricted, the term of its activities;

9)         other provisions laid down in the laws, the incorporator or a member of a legal person.

2.          Goals of the activities of public legal persons shall have to be defined in a clear and comprehensive manner including the field and form thereof.

3.          In the event that the procedure for the convening of the general meeting of a legal personís members and its competence as well as the procedure for the formation and dissolution of other bodies of a legal person and their competence is identical to the procedure provided for by the law and where the given fact is indicated in the articles of incorporation, it shall not  be indicated.

 

Article 2.48. Property of legal persons

1.          Property of legal persons shall be administered, used and disposed of on the basis of the ownership right  or  the  right of trust.

2.          Property, which is administered, used and disposed of on the basis of  the right of trust shall be owned by the incorporator of a legal person or its member on the basis of  the ownership right.

 

Article 2.49. Registered Office of a Legal Person

1.          Registered office of a legal person shall be the seat of its principal managing body. Registered office of a legal person shall be defined by indicating the address of the premises in which the head office is located.

2.          Where the registered office of a legal person indicated in the register of legal persons, incorporation documents or the contract and the seat of its principal managing body fail to coincide, the third parties shall enjoy the right to consider the seat of its principal managing body  to be the registered office of a legal person.

3.          All correspondence with a legal person shall be deemed appropriate where the address of the registered office is used as well as where due regard of paragraph 2 of the given article is taken except as otherwise provided by a legal person.

4.          Upon changing his registered office a legal person shall have to change its incorporation documents accordingly and register them.

 

Article 2.50.  Contractual Liability of Legal Persons

1.          A legal person shall be liable for his obligations by his property, which it owns on the basis of the ownership right or right of trust

2.          A legal person shall not be liable for the obligations of its member and the latter shall not be liable for the obligations of the legal person with the exception of cases provided by the law and incorporation documents of a legal person.

3.          Where a legal person fails to perform his obligations due to  acts  in bad faith of a member of the legal person, the member of a legal person shall, in a subsidiary manner, be liable for the  obligations of a legal person by his property.

4.          Legal persons shall be divided into persons of limited and unlimited civil liability. Where the property of a legal person of unlimited civil liability is not sufficient to discharge its obligations, a member of a legal person shall be liable for the said obligations. Personal (individual) enterprise and commercial partnership shall be legal persons of unlimited civil liability.

 

Article 2.51. Term of the Activities of a Legal Person

1.       A legal person may be incorporated for a fixed or open-ended term. Date as well as presence or absence of certain conditions may be considered to be the term.

2.       Where documents of incorporation of a legal person fail to indicate that the legal person has been incorporated for a fixed period of time such legal person shall be considered incorporated for an open-ended term.

 

Article 2.52. Financial Year of a Legal Person

1.       Financial year of a legal person shall be the calendar year.

2.          Any other period of twelve months may be considered to be the financial year of a legal person.

3.          Where the financial year is changed, the end of the financial year shall be considered to be the end of the new financial year if the period from the beginning of the financial year to the end of the new financial year is not longer than eighteen months. Where such period is longer than eighteen months, transitional financial year shall be set and its beginning shall be the end of the previous financial year whereas the end of it Ė the beginning of the new financial year.

4.          Upon the incorporation of a legal person, the first financial year of a legal person shall be the period from the day of its incorporation to the end of the financial year. With the expiry of the term of a legal person the period from the beginning of the financial year to the day of the expiry of the term of a natural person shall be considered to be the last financial year.

5.          Financial year of a legal person may not be altered more frequently than one time in five years. Where a legal person changes its financial year for a financial year coinciding with the calendar year, the given provision shall not be applied.

 

Article 2.53. Branch Office of a Legal Person

1.          Branch office of a legal person shall be its structural unit, which has its registered office and performs all or part of legal personís the functions.

2.          Branch office of a legal person shall not be a legal person. The legal person shall be liable for the obligations of the branch office and the branch office shall be liable for the obligations of the legal person.

 

Article 2.54. Regulations of the Branch Office of a Legal Person

1.       Branch office of a legal person shall act in accordance with the regulations approved by a legal person. They must contain the following information:

1)      business name of the branch office;

2)      registered office of the branch office (address);

3)      goals of activities of the branch office;

4)      managing body of the branch office and its competence;

5)      term of the activities of the branch office (where it is fixed

6)      other provisions established by the law or a legal person.

2.       Regulations of the branch office shall, too, provide information specified in Article 2.44 of the given Code on the founder of the branch office and on the managing body of a legal person, which enjoys the right to form or dissolve managing bodies of the branch office and make decisions on the legal  status of the branch office.

 

Article 2.55. Regulation of Branch Offices

1.          Provisions of PART II of the given book shall be applied to the branch offices and their activities inasmuch as they do not contradict the essence of a branch office and by taking due regard of peculiar provisions laid down in the given Article.

2.          Documents of the branch office listed in Article 2.44 of the given Code shall also contain analogous information about the legal person, with the exception of information specified in paragraph 3 of Article 2.44 of the given Code in cases,  where a foreign legal person or other organisation is the founder of the branch office.

3.          Upon the registration of a branch office a foreign legal person or other organisation shall have to notify the Register of legal persons about the changes in the data of a legal personís documents, which were filed with the register, and the legal status of a legal person, and  present documents of annual financial accountability, including consolidated balance sheet, in cases where such accountability, according to the law, is applied to a foreign legal person or other organisation.

 

Article 2.56. Representative Office of a Legal Person

1.          Representative office of a legal person shall be a unit of a legal person, which shall have its registered office enjoy the right to perform all operations specified in paragraph 2 of the given Article.

2.          Representative office of a legal person shall have the right to represent the interests of a legal person and safeguard them, to enter into contracts as well as perform other operations in legal personís name, to conduct import and export operations exclusively between foreign legal persons and other organisations, which have established the branch office or related enterprises, institutions or organisations and the branch office.

3.          Representative office of a legal person shall not be a legal person.

 

Article 2.57. Regulations of a Representative Office of a Legal Person

1.Representative office of a legal person shall act pursuant to the regulations approved by a legal person which have to indicate:

1)      business name of a representative office;

2)      registered office of a representative office;

3)      goals of activities of a representative office;

4)      managing body of a representative office and its competence;

5)      period of activities of a representative office where it is limited;

6)      other provisions established by the law or a legal person.

2.Regulations of the representative office of a legal person shall also include information specified in Article 2.24 of the given Code about its founder and about the managing body which has the right to form and dissolve managing bodies and make decisions on the legal status of a representative office.

 

Article 2.58. Regulation of the Representative Office of a Legal Person

1.          Provisions of Part II of the given book shall be applied to representative offices inasmuch as they do not contradict the essence of a representative office and by taking due regard of peculiar provisions laid down in the given Article.

2.          Documents of a representative office listed in Article 2.44 of the given Code must also contain similar information about a legal person, with the exception of information specified in paragraph 3 of Article 2.44 of the given Code in cases,  where the founder of a representative office is a foreign legal person or other organisation.

3.          Upon registration of a representative office a foreign legal person or other organisation must notify the Register of legal persons about the alterations of data in documents of a legal person filed with the register and the legal status of a legal person, produce documents of annual financial accountability, including consolidated balance sheet, in cases,  where such accountability is mandatory pursuant to laws applied to a foreign legal person or other organisation.

 

CHAPTER V

INCORPORATION OF A LEGAL PERSON

 

Article 2.59. Procedure for the Incorporation of a Legal Person

Legal persons shall be incorporated pursuant to the procedure established by the law and the given Code.

 

Article 2.60. Incorporators of a Legal Person

1.       Incorporator of a legal person shall be a person who has concluded a contract for the incorporation of a legal person. Upon passing a respective law or, where it is provided for by the law, other legal act, the state, or, where it is provided by the law, a municipality, public or local self-government institutions upon passing a respective legal act, which forms the basis for the incorporation of a public legal person, shall, too, be considered the incorporators of  a legal person.

2.       Natural and legal persons may be incorporators of a legal person.

3.       The law may provide for cases,  where for the purpose of protection of public order or where retaliatory action is taken, a foreign legal person, other organisation or a foreigner may not be an incorporator or a member of legal persons.

 

Article 2.61. Contracts Concluded Prior to the Incorporation of a Legal Person

1.       A special managing body of a legal person or some other body defined in the incorporation document shall have the right to approve contracts, which in a legal personís name were concluded by other persons prior to the incorporation of a legal person. When such contract is concluded it should be indicated that it is concluded in a legal personís name and in its interests. Where such reference fails to be included the person who has concluded the contract and the legal person whose managing body approved the contract concluded in its interest shall have solidarity obligation to discharge their contractual obligations.

2.        Where such contract fails to be approved by the body of the legal person which was incorporated at a later date all obligations arising from the contract shall have to be discharged by the person who has concluded the said contract. Where such contract has been entered into by some persons and where a legal persons fails to approve it all persons shall have the solidarity obligation to discharge obligations arising from the said contract.

 

Article 2.62. Register of Legal Persons

1.          Legal person shall have to be registered with the Register of legal persons.

2.          Register of legal persons shall file legal persons and store data thereof. Register of legal persons shall be the principal register of the state.

3.           Register of legal persons must be supplied with all data prescribed by the law on legal persons themselves and their activities (principle of disclosure).

4.          A public institution prescribed by the law shall be the institution for the administration of the Register of legal persons (registrar of the register).

 

Article 2.63. Moment of Incorporation of a Legal Person

1.       A legal person shall be deemed incorporated as of the moment of its registration with the Register of legal persons.

2.       In cases prescribed by the law or laws, other legal act which formed the basis for the incorporation of public legal person may establish that a legal person is deemed incorporated after the act forming the basis for the incorporation has entered into force. In such cases the said legal act must contain the data laid down in Article 2.66 of the given Code and the said legal act has to be published and produced to the Register of legal persons.

 

Article 2.64. Registration of Legal Persons

1.          A legal person shall be registered with the Register of legal persons after documents listed in paragraph 2 of the given Article have been produced except as otherwise provided by other laws in relation to cases established by the provisions of the given Code.

2.          The following documents shall have to be produced to the Register of legal persons for the registration of a legal person:

1)         application of the established form for the registration of a legal person;

2)         incorporation documents of a legal person;

3)         licence, where issuance of a licence prior to the incorporation of a legal person is provided for by the law;

4)         documents verifying the authenticity of documents which are produced to the Register and the compliance of incorporation documents with the provisions of laws as well as documents verifying the fact that a legal person may be registered because contractual obligations assumed in the incorporation contract have been fulfilled  and the circumstances prescribed by the law and incorporation documents have emerged.

5)         document verifying the payment of a registration fee except in cases where a person is exempted from a registration fee.

6)         other documents prescribed by the law.

3.          A legal person shall be registered within 30 days as of the day on which all documents listed in Paragraph 2 of the given Article have been produced.

4.          Regulations of the Register of legal persons shall establish the procedure for the registration of legal persons.

5.          A legal person may be removed from the Register only on the expiry of the term of a legal person.

 

Article 2.65. Certificate of Registration and Code of a Legal Person

Upon registration of a legal person, the registrar of the Register shall issue a certificate of registration and shall give a legal person a code of a legal person.

 

Article 2.65. Data of the Register of Legal Persons

1.          Register of legal persons shall have to include:

1)      business name of a legal person;

2)      juridical form of a legal person;

3)      code of a legal person;

4)      registered office of a legal person;

5)      bodies of a legal person;

6)      members of managing bodies of a legal person (name, surname, personal code (code of a legal person), residence (registered office);

7)      members of managing bodies of a legal person and members of a legal person having the right to conclude contracts in the legal personís name, limits of authority and samples of signatures;

8)      branch offices and representative offices of a legal person (names, codes, registered offices, members of managing bodies of branch offices and representative offices);

9)      restrictions on the activities of a legal person;

10)   legal status of a legal person;

11)   expiry of the term of a legal person;

12)   dates of alterations in the data filed with the register and dates of the alteration of documents;

13)   other data prescribed by the law.

2.          Where legal persons the members whereof are liable for contractual obligations of a legal person are registered, additional information on a member, a natural person, of a legal person shall be furnished: name, surname, personal code, residence or business name of a legal person, juridical form, code and registered office.

3.          Where the data,  listed in paragraphs 1 and 2 of the given Article has been altered and where incorporation documents or other data listed in paragraphs 1 and 2 of the given Article has been altered, a legal person must file an application of the established form requesting the registration of the alterations with the Register of legal persons within thirty days as of the day the alterations have been made. Documents listed in point 4 paragraph 2 of Article 2.64 of the given Code and full text of the altered document, where the document has been altered, must be produced together with the application requesting the registration of the alterations.

4.          The documents of the annual financial accountability of enterprises shall be produced to the Register (annual financial accountability) every year within thirty days as of the moment,  when a legal person approves them in accordance with the procedure established by the law and incorporation documents of a legal person except as otherwise provided for by the law.

5.          Alterations in the data listed in points 5-7 and 11 of paragraph 1 of the given Article as well as alterations of documents shall enter into force only upon their registration with the Register of legal persons with the exception of derogations provided by the law.

 

Article 2.67. Persons Responsible for the Production of Documents of a Legal Person and the Data of the Register to the Registrar of the Register

1.     Managing body of a legal person shall be responsible for the timely production of documents of a natural person, data and other requested information to the Register of legal persons except as otherwise provided by the law or incorporation documents.

 

Article 2.68. Refusal to Register

1. The registrar may refuse to register a legal person or the alterations in the data and documents of a legal person only in cases where:

1)    the application to register a legal person (alterations of data and documents to be registered with the register, removal of data) fails to conform to the established form or not all documents specified in Articles 2.63 and 2.64 are produced;

2)    the term specified in paragraph 4 of Article 2.46 of the given Code has expired;

3)    data and documents produced to the Register are not in conformity with one another, are vague or misleading;

4)    form or content of the documents fail to conform to the requirements provided for by law.

2. Where obstacles for the registration of the produced documents and data arise, the registrar shall set a time limit for the elimination of defects. Where the defects are not eliminated within the established time limit and corrected documents are not produced to the registrar, the registrar makes a motivated decision to refuse the registration of a legal person (alterations in data or documents).

3. Decision to refuse registration of a legal person (data to be registered in the register or alterations in documents) shall be appealed to the court in accordance with the procedure established by the law.

 

Article 2.69. Rectification of the Register of Legal Persons

1.          Errors in the Register of legal persons shall be rectified on the application of a legal person or a person whose data has been inserted in the Register or on the initiative of the registrar.

2.          Upon the detection of an error in the Register, the registrar shall have, without delay, to notify, in writing, a legal person. Where a legal person fails to raise objections within the time limit set by the registrar for the rectification of the error, the registrar shall rectify the data in the register.

3.          In the event that a legal person, the data whereof has been registered with the Register, requests the rectification of an error in the Register, the registrar shall have to rectify the data in the Register within three business days as of the day,  on which the application and the documents verifying the facts have been received.

4.       The registrar shall have to notify, where applicable, the persons who were given erroneous data about the rectification of the mistake in the Register.

 

Article 2.70. Liquidation of a Legal Person on the Initiative of the Registrar of Legal Persons.

1.       Where a legal person registered with the Register fails to renew its data in the Register of legal persons within five years and where there are grounds to presume that  the said legal person has stopped its activities or where an enterprise failed to produce documents of financial accountability, which were specified in paragraph 4 of Article 2.66 of the given Code for a period exceeding twenty four months and failed to inform the administrator of the Register of legal persons about the reasons thereof or where management bodies failed to make decisions due to the lack of quorum after the resignation of  the members of managing bodies of  a legal person and the situation persists for more than six months or where members of  managing bodies of a legal person may not be contacted at the registered office of a legal person or locations,  the addresses of which have been produced to the Register of legal persons,  the  registrar of  the Register shall have the right to initiate liquidation of  a  legal person.

2.          The registrar of legal persons  shall  send  a notification about the pending liquidation of the legal person to the registered office of  a legal person or to the addresses of the members of managing bodies of a legal person which were produced to the register of legal persons as well as make the public announcement of the said notification in the source provided for in the regulations of the register of legal persons.

3.          Where within three months following the public announcement of the pending liquidation of a legal person the registrar of legal person fails to receive objections to the pending liquidation of a legal person he applies to the court requesting to put the legal person into liquidation.

 

Article 2.71. Publication of the Register of Legal Persons

1.     Data of the Register of legal persons, documents stored in the register as well as any information supplied to the Register shall be made public.

2.       A separate file shall be made up for each legal person. Documents produced to the Register, data and other information related to the given legal person shall be stored and safeguarded in the said file.

3.       The data produced by the Register, copies of documents or information shall have a mark ďattested abstractĒ (ďattested copyĒ) except in cases where an applicant fails to request the said mark. The copies of the data stored in the register, of documents or information attested in the said manner shall have prima facie authority.

4.       Every person shall have the right to receive, free of charge, oral information on the legal status of a legal person and restrictions imposed of his activities in accordance with the procedure established by the Register of legal persons.

 

Article 2.72. Procedure and Mode of Publication of the Data of the Register of Legal Persons

1.          The registrar shall have to make a public announcement of the registration of a legal person, alteration of the data stored in the Register in accordance with the procedure established by the Register of legal persons and in the source designated by the said Register.

2.          Copies of the data and documents stored in the Register of legal persons shall be issued pursuant to the procedure established by the regulations of the Register of legal persons.

3.          Every person shall enjoy the right to be issued copies of any data, documents and information stored in the Register after a fee not exceeding the costs of the said work has been paid.

4.          Data of the Register of legal person shall be issued free of charge:

1)         to natural persons whose data are inserted in the Register Ė the Register stores the data about the said persons;

2)         to judicial institutions Ė inasmuch as they need to discharge their direct functions;

3)         to other State registers and information systems Ė on the data exchange basis.

5.       a fee for the issuance of copies of the data and documents of legal persons shall not exceed the costs of the administration of the Register.

 

Article 2.73. Liability for Unlawful Refusal to Register a Legal Person and for Errors in the Register of Legal Persons

1.          Where a legal person and the data produced to the Register or documents to be registered with the Register, are unlawfully refused registration a legal person shall have the right to seek a legal redress for the damage inflicted on him by the said actions.

2.          Damage incurred by the actions specified in paragraph 1 of the given Article on a legal person as well as damage incurred on other persons in the administration of the Register of legal persons shall be redressed by the State. The said damage is recovered in judicial proceedings. Institution authorised by the State shall represent the State in civil cases for the award of damage.

 

CHAPTER VI

LEGAL CAPACITY OF LEGAL PERSONS

 

Article 2.74. Legal Capacity of Legal Persons

1.          Private legal persons may be in possession of or achieve any civil rights and assume duties except those, which may emerge only when such characteristics of a natural person as gender, age and  consanguinity  are in place.

2.          Public legal persons shall have a special legal capacity, i. e they may be in possession of or achieve only such civil rights and assume such duties, which are not at variance with their incorporation documents or goals of activities.

3.          Provisions of paragraph 3 of Article 2.4 of the given Code shall be applied to legal persons mutatis mutandis.

 

Article 2.75. Restrictions on the Legal Capacity of Legal Persons

1.       Legal Capacity of legal persons may not be imposed limitations in any other manner except as by express provision and procedure of law.

2.       Legal Capacity of an individual legal person may be imposed limitations only by the court judgement.

 

Article 2.76. Prohibition of Discrimination

1.          It shall be prohibited to establish in legal acts, for discrimination purposes, different rights, obligations or privileges for separate legal persons.

 

Article 2.77. Licensing of the Activities of Legal Persons

1.       In cases provided by law legal persons may be engaged in a certain type of activities only after a licence has been granted in accordance with the procedure established by the law.

2.       A legal person must be in possession of all licences (permits) which are defined in  the law as a necessary prerequisite for its activities.

 

Article 2.78. Licensing Requirements

1.          The Government approves licensing requirements for every licenced sphere of activities provided by law except as otherwise provided by other laws.

2.          Licensing requirements shall indicate the following:

1)         licenced activities;

2)         licensing institution and its authority;

3)         documents for the issuance of a licence;

4)         procedure and term for the investigation of documents;

5)         types of licences, conditions of their issuance, re-issuance of a licence;

6)         forms of licences;

7)         procedure for the registration of issued licences;

8)         cases of refusal to issue a licence;

9)         conditions of licenced activities;

10)      procedure for the supervision of the observance of the conditions of a licence;

11)      procedure and cases for the revocation and withdrawal of a licence.

3.          Regulations of licensing may provide for other requirements and a different procedure.

 

Article 2.79. Issuance of a Licence

1.          Where the requirements specified in the regulations of licensing are fulfilled an open-ended licence shall be issued.

2.          Except as otherwise provided by law, licence for the engagement in a certain activity or a written motivated refusal to issue a licence shall be submitted to an applicant within thirty days as of the day on which the documents for the issuance of a licence were produced.

3.          Refusal to issue a licence may not be based on the inexpediency of activities and has to be motivated.

4.          Information on the issuance of a licence, its revocation and withdrawal shall be stored in the register of legal persons. The licensing authority must notify the register of legal persons about the issuance, revocation and withdrawal of licences in accordance with the procedure established by the regulations of the register of legal persons.

5.          Upon the issuance of a licence a legal person must supply information specified in the licensing requirements and related to the licenced activities or conditions predetermining the issuance thereof and allow the institution for the supervision of licenced activities to verify  it.

6.           Stamp tax for the issuance of a licence shall not exceed the costs of the issuance of a licence and supervision thereof.

 

Article 2.80. Prohibition to Use Administrative Methods

1.       Public or municipality institutions shall be prohibited, in cases not prescribed by law, to use methods of administrative regulation of the activities of legal persons.

2.       Where, in accordance with the procedure prescribed by law, an emergency or martial law is declared or a certain territory is declared the region of disaster, legal persons must carry out the instructions of the Government or local self-government institution.

 

CHAPTER VII

BODIES OF A LEGAL PERSON

 

Article 2.81. Bodies of a Legal Person

1.          Legal persons achieve civil rights, assume civil duties and implement them through their bodies which are formed and act in accordance with laws and documents of incorporation of legal persons

2.          In cases prescribed by laws and incorporation documents legal persons may achieve civil rights and assume duties through their members.

3.          Members of legal persons enjoy the right to institute an action at law requesting to prohibit the managing bodies of a legal person to enter into contracts which contravene the goals of the activities of a legal person or overstep the authority of a managing body of a legal person.

4.          Only natural persons may be members of managing bodies of a legal person whereas both natural and legal persons may be members of other bodies.

 

Article 2.82.  Authority and Functions of the Bodies of Legal Persons

1.       Authority and functions of the natural personsí bodies shall be established by the law and incorporation documents of a legal person, which regulate legal persons of a respective juridical form.

2.       Where incorporation documents and laws regulating the activities of a legal person fail to provide a different structure of managing bodies, each legal person must have a single-person or a collegial managing body and the general meeting of members. Laws regulating individual juridical forms of legal persons may establish that an managing body and the general meeting of members may be considered to be the same body of a legal person.

3.       A managing body  shall be responsible for the financial accountability, convening of the general meeting of  members of a legal person, production of documents and data to the register of legal persons, notification of the members of a legal person about the essential events, which are important for the activities of a legal person, organisation of the legal personís activities, accounting of the members of a legal person and actions specified in paragraph 3 of Article 2.4 of the given Code, except as otherwise provided in laws regulating the activities of legal persons or incorporation documents of a legal person.

4.       Decisions of the bodies of a legal person may, in judicial proceedings, be declared void where they contravene the imperative provisions of the law, incorporation documents of a legal person or principles of reasonableness and good faith. Where the decision infringes their rights or interests, action can be taken by the creditors of a legal person, a respective managing body of a legal person, member of a legal person or other persons prescribed by the law. Three-month limitation of actions period shall be set for the said actions. It shall be counted as of the day on which the defendant found out or had to find out about the contested decision where the given Code and other laws fail to set another term of limitation of actions or a different procedure for the challenging of the decision.

 

Article 2.83. Contracts Concluded in Overstepping the Authority of Managing Bodies of a Private Legal Person

1.          Contracts concluded by the managing bodies of a private legal person in overstepping their authority shall impose obligations on a legal person except in cases where it is proved that concluding the contract the third person was aware or due to certain circumstances may  not have failed to be aware of the fact that the contract has been entered into by a managing body of a legal person who was not authorised to conclude it.

2.          Paragraph 1 of the given Article shall not be applied where quantitative representation has been established, i.e. only some members of a managing body together or a member of a managing body and a representative together are authorised to act in the name of a legal person. Quantitative representation shall have to be provided in the incorporation documents of a legal person, specified in the register of legal persons and publicised in accordance with the procedure established by the regulations of the register of legal persons.

3.           Where a legal person fails to satisfy fully the claim of a third person, the person who has concluded the contract under circumstances laid down in paragraph 1 of the given Article shall take on subsidiary liability.

 

Article 2.84. Contracts Concluded in Overstepping the Authority of Managing Bodies of a Public Legal Person

1.          Contracts concluded by administrative bodies of a public legal person in overstepping  their authority  shall  not  impose obligations on a legal person.

2.          Where, at a later date, the person approves the contract, the contract shall become valid as of the day of its conclusion.

3.          A person who, under the circumstances laid down in paragraph 1 of the given Article, has concluded a contract, which is not approved by a legal person, must redress the damage incurred on the third person, if  he fails to prove that concluding the contract the third person was aware or due to certain circumstances may not have failed to be aware of the fact that the contract has been concluded in overstepping the authority of the managing body of a legal person.

 

Article 2.85. Public Announcement of the Authority

Publication and indication in the Register of legal persons of the authority of managing bodies of legal persons which was stipulated in incorporation documents shall not affect the application of the provisions of Articles 2.83 and 2.84.

 

Article 2.86. Equality of Members of Legal Personís Managing Bodies

Members of legal personís managing body shall enjoy equal rights and obligations with the exception of the case specified in paragraph 2 of Article 2.93 of the given Code.

 

Article 2.87.  Duties of Members of Legal Personís Managing Bodies

1.       Member of a legal personís body shall have to act in good faith and reasonable manner in respect of the legal person and members of other legal personís bodies.

2.       Member of a managing body of a legal person shall have to be loyal to the legal person and maintain confidentiality.

3.       Member of legal personís managing body shall have to avoid a situation where his personal interests are contrary or may be contrary to the interests of a legal person.

4.       Member of a managing body  of a legal person may not confuse the property of a legal person with his own property and, without consent of members of a legal person, use the property or the information, which he obtains in the capacity of a member of legal personís body, for his personal gain or third personís gain.

5.       A member of a managing body of a legal person must notify other members of the managing body of a legal person about the circumstances laid down in paragraph 3 of the given Article and define their nature and, where applicable, their value. Such information shall have to be supplied in writing or included into the minutes of the meeting of legal personís bodies.

6.       A member of a managing body of a legal person may enter into a contract with a legal person being in the capacity of a member of the said personís body. He shall have, without delay,  to notify other bodies of  a legal person about the said contract in accordance with the procedure established in paragraph 5 of the given Article or members of a legal person where incorporation documents of a legal person fail to provide explicitly for a different procedure of notification.

7.       A member of  a managing body of a legal person who fails to perform or performs improperly his duties specified in the given Article or incorporation documents must redress all damage incurred on a legal person except as otherwise provided by law, incorporation documents, or an agreement.

 

Article 2.88. Agreements on the Voting of the Members of a Legal Person

1.          Members of a legal person may conclude an agreement on general voting at the meeting of the members of a legal person. Agreements on voting are null and void where an obligation is assumed:

1)         to vote according to instructions received from the managing bodies of a legal person;

2)         to vote for all proposals made by the managing bodies of a legal person;

3)         to vote according to instructions or abstain from voting for certain remuneration.

2.          An agreement on voting may establish that  parties to the said agreement may grant an authorisation to a third person to vote at the general meetings of the members of a legal person in the name of the parties to the agreement on voting, and such authorisation may be revoked only in cases provided for in the said agreement.

3.          Upon the issuance of the authorisation in accordance with the provisions of paragraph  2 of the given Article, the parties to the agreement are deprived of the right to vote or to grant authorisation to other persons to vote at the meetings of members of legal person for issues specified in the authorisation.

4.          Where provisions  of  an  agreement on voting have been infringed by one party to the agreement the court is authorised to oblige re-counting of the results of voting at the meeting of members of a legal person in accordance with the agreement on voting and reverse the decision taken at the meeting of members of a legal person in cases where voting in violation of the agreement was decisive in arriving or not arriving at a certain decision.

 

Article 2.89. Transfer of a Voting Right

1.          A member of a legal person may transfer his right to vote at the general meeting of members of a legal person to other persons and establish the procedure and modes of exercising the voting right.

2.          An agreement  on the transfer of  the voting right enters into force as of disclosure to a legal person of the data on the number of transferred votes, time limit of transfer, grounds for the entitlement to the voting right, member of a legal person who transfers the right and the person who achieves the right (inasmuch as is provided in incorporation documents of a legal person, laws or the established practice of a legal person).

3.          A legal person must notify the member of a legal person who transfers his voting right  and the person who achieves it as well as, at the nearest meeting of members of a legal person, announce that he has received documents and information specified in paragraph 2 of the given Article. Obligations of a legal person related to the convening of the general meeting of members of a legal person are fulfilled in respect of the person who has achieved a voting right.

4.          Term for an agreement on the transfer of a voting right may not exceed a period of ten years.

5.          Other non-property rights enjoyed by a member of a legal person may, too, be transferred by an agreement on the transfer of voting rights.

 

Article 2.90. Minutes

1.       Meetings of a legal personís collegiate body shall keep the minutes.

2.       The minutes shall include the time and place of a meeting, number of participants, the fact of having a quorum, results of voting, and decisions. The minutes shall have to be annexed by the list of participants and information on the convening of the  meeting. On the request of participants of the meeting information specified by them shall have to be included into the minutes. All alterations and supplements shall have to be deliberated.

3.       Minutes shall have to be stored no less than ten years and on the request of each participant or other member of a managing body who participated or was entitled to participate in the meeting a copy of the minutes shall have to be issued. A legal person shall have the right to demand from a member of a legal persona a fee, not exceeding the costs of its issuance, for the copy of minutes.

4.       Where a decision is signed by  all members of a managing body  of a legal person or where only one person constitutes a body of an legal person and in this case a decision made by that member of a legal person equals a decision made by a managing body of a legal person, minutes shall not be taken.

5.       Laws may provide for different or supplementary requirements for minutes compared to those, which are laid down in paragraph 2 of the given Article.

 

Article 2.91. Keeping  and  Signing of Minutes

1.          Minutes shall be taken by a secretary of a meeting, a chairman of a meeting, where a secretary is not elected, or by a chairman of a collegiate managing body of a legal person where a chairman and secretary of a meeting are not elected.

2.          Minutes are signed by the person who has taken it and by the chairman of a meeting and in cases where he is not elected Ė chairman of a collegiate managing body of a legal person.

3.           Minutes shall be taken and signed within a time limit established in incorporation documents or laws and in all cases, however, must not exceed thirty days as of the day on which a meeting was convened.

 

Article 2.92. Remarks on the Minutes

1.       Participants of a meeting shall enjoy the right to make remarks on the minutes within three days as of the moment they have read them but neither the period of three days nor the maximum time limit for taking minutes established in incorporation documents may be exceeded.

2.       Remarks on the minutes shall be attached to the minutes together with the information whether persons who signed the minutes agree or disagree with them.

3.        Failure to make remarks shall not preclude the right to contest decisions of the managing body of a legal person.

 

Article 2.93. Voting

1. Resolutions of collegiate bodies of a legal person shall be adopted by voting.

2. Equality of votes shall mean that the same number of votes ďforĒ and the same number of votes ďagainstĒ have been received. In cases of equality of votes, vote of the chairman of a collegiate body shall be decisive. Where the chairman of a collegiate body has not been designated or fails to participate in the resolution adopting process, the resolution, in the case of equality of votes, shall be deemed not adopted.

3. Where members of a collegiate body fail to raise objections voting could be done, in writing, in the form of an interview.

4. In urgent cases the court may designate members of a body of a legal person.

5. Member of a body  of a legal person may vote himself or may authorise other persons to vote for him as his proxy except as otherwise provided in incorporation documents of a legal person.

6. Decision of a chairman of the sitting (meeting) of a legal personís collegiate body on the results of voting shall be decisive except in the cases where the voting is held in writing or a commission for counting of votes is established. In such cases the decision of the commission shall be final. Where upon the announcement of the results of voting by the chairman of the sitting or the commission for counting of votes, doubts are expressed on the lawfulness of voting, repeated voting, upon the request by the majority of members of a collegiate body, must be done.

7. Laws and incorporation documents of a legal person may provide for a different procedure of voting.

8. Provisions of the given Article shall not be applied to the general meeting of shareholders.

 

Article 2.94. Verification of a Decision

Where, for purposes of validity of a resolution, approval of the body of other legal person may be requested, the said approval may be effected at a later date within a reasonable period of time.

 

CHAPTER VIII

TERMINATION AND RESTRUCTURING OF LEGAL PERSONS

 

Article 2.95. Termination of Legal Persons

1.       Legal persons shall be terminated by way of liquidation or reorganisation.

2.       Reorganisation shall be termination of a legal person without the liquidation procedure.

3.       A legal person shall be terminated as of the day of its removal from the Register of legal persons.

 

Article 2.96. Reorganisation of Legal Persons

1.       Resolution to reorganise a legal person shall be passed by members of a legal person or the court in cases provided by law.

2.        Resolution to reorganise, by way of merger, a legal person, which is joined by other legal person, may, too, be passed by the managing body of a legal person where the given circumstances emerge.

1)      Public announcement about the terms of reorganisation of legal persons laid down in paragraph 2 of Article 2.99 of the given Code shall be made no later than thirty days prior to the general meeting of members of a legal person, which is going to be merged.

2)      Every member of a legal person shall have the right to acquaint himself with the documents specified in paragraph 4 of the given Article.

3)      One or some members of a legal person with no less than 1/20 of votes at the general meeting of members of a legal person shall enjoy the right to request the convening of the general meeting of legal personís members on the reorganisation, by way of merger, of a legal person.

3.       Resolution to reorganise a legal person shall be passed by the qualified majority vote. It shall be set in the incorporation documents and may be no less than 2/3 of the votes given by the persons present at the general meeting. Subject to paragraph 1 of Article 2.101 of the given Code, resolution to reorganise a legal person may be passed only upon the expiry of a thirty days period following the public announcement that terms for the reorganisation have been set. Terms of reorganisation shall have to be approved by a resolution to reorganise a legal person and documents of incorporation shall have to be altered or new documents shall have to be drawn up.

4.       Members of a legal person shall have the right to acquaint themselves with the terms of reorganisation, incorporation documents of legal persons who will continue the activities after the reorganisation or documents of newly incorporated legal persons or with their projects and reports drawn up by all managing bodies of legal persons participating in the reorganisation, assessments of experts as well as financial statement for the last three financial years. Where terms of the reorganisation were set six months following the end of the financial year of at least one legal person participating in the reorganisation, interim financial statement has to be issued in accordance with the same rules applied to the earlier financial statement and has to be presented to the members of a legal person. It shall be issued no earlier than three months prior to the setting of terms for the reorganisation. All members of a legal person shall have the right to receive copies of the said documents.

5.       Managing bodies of legal persons shall have to notify members of legal persons about all essential changes after terms of reorganisation have been set and prior to taking decision on the reorganisation and attach this written notification to documents specified in paragraph 4 of the given Article as well as inform, orally, about essential changes in the general meeting of members of legal persons.

 

Article 2.97. Modes of Reorganisation of Legal Persons

1.       Legal persons may be reorganised by way of merger and division.

2.       Joining and consolidation shall be the possible modes of merger of a legal person.

3.       Joining shall be merger of one or more legal persons to the other legal person, which become successors to all rights and obligations of the reorganised legal person.

4.       Consolidation is a merger of two or more legal persons into a new legal person, which becomes a successor to all rights and obligations of reorganised legal persons.

5.       Possible modes of splitting up of legal persons shall be division and parcelling out.

6.       Parcelling out shall be parcelling out of legal personís rights and obligations to other functioning legal persons.

7.       Division shall be incorporation of two or more legal persons on the basis of the legal person under reorganisation, which become successors to certain parts of legal personís rights and obligations.

8.       Where the resolution to liquidate a legal person was not passed by the general meeting of the members of a legal person or where at least one member of a legal person became a successor to a part of property of a legal person under liquidation it shall be prohibited to reorganise such legal person under liquidation.

9.       Specific character of reorganisation of individual legal persons may be prescribed by the laws, which regulate individual  legal forms of legal persons.

 

Article 2.98. Reorganisation of Legal Persons of Different Legal Forms

1.       Only legal persons of the same  legal form may participate in the  reorganisation procedures with the exception of derogations provided by laws regulating individual  legal forms of legal persons.

2.       Upon termination of a reorganised legal person whose members are liable for obligations of a legal person, members of the terminated and reorganised legal person shall, irrespective of the terms of reorganisation, accept subsidiary liability for the obligations of the dissolved legal person, which emerge prior to the legal personís, who will continue activities of the dissolved legal person, becoming a successor to the rights and obligations of the terminated legal person. Where a member of a legal person fails to become a member of a legal person who, upon reorganisation, will continue the activities of the dissolved legal person throughout the reorganisation procedure as well as later, he shall not be exempted from the liability specified in the given paragraph.

 

Article 2.99. Terms of Reorganisation and Report on the Reorganisation

1.          Managing  bodies of legal persons participating in the reorganisation shall have to prepare the terms of reorganisation which have to indicate:

1)         information, specified in Article 2.44. of the given Code, on all legal persons participating in the reorganisation;

2)         mode of reorganisation, terminated legal persons and legal persons continuing the activities after reorganisation;

3)      procedure for becoming a member of a legal person who continues activities after reorganisation, terms and time limit as well as payments to the members of a legal person;

4)      moment from which a legal person continuing the activities becomes a successor to rights and obligations of a terminated legal person;

5)      ancillary rights conferred to managing and other bodies of a legal person, employees of administration or experts specified in Article 2.100 if the given Code.

2.       Public announcement of the terms of reorganisation shall be made subject to the provisions of paragraph 1 of Article 2.101 of the given Code and filed with the Register of legal persons no later than on the first day of publication by applying the provisions of paragraph 3 of Article 2.66 of the given Code mutatis mutandis.

3.       Managing bodies of each legal person participating in the reorganisation shall have to draw up written reports, which have to indicate the goals of reorganisation, explain the terms of reorganisation, continuity of legal personís activities, time limit for reorganisation and economic grounds.

4.       Paragraph 3 of the given Article shall be applied only in those cases where a joint-stock company, participating in the reorganisation, or other persons whose members have no less than 1/20 of all votes request it.

 

Article 2.100. Assessment of the Terms of Reorganisation

1.          Terms of the reorganisation of a legal person shall be assessed by an independent expert who has the necessary qualifications.

2.          Independent experts shall be designated by each legal person participating in the reorganisation. Where there is a wish to designate a single expert for all legal persons under reorganisation such designation must be approved by the registrar of legal persons

 

Article 2.101. Protection of the Rights of Creditors of the Legal Persons under Reorganisation

1.       Public announcement of the terms of reorganisation shall be made three times with at least three-month intervals between the announcements or public announcement shall be made once and all creditors of a legal person shall be given a written notice thereof. The notice shall indicate data specified in points 1, 2 and 4 of paragraph 1 of Article 2.99 of the given Code as well as information where and when documents listed in paragraph 4 of Article 2.96 are available.

2.       A creditor of a legal person under reorganisation shall enjoy the right to request termination of the contract or performance of obligations before the expiry of the time limit as well as redress of damages, where this has been provided in the contract, and where there are grounds to presume that the  performance of obligations may become more difficult due to reorganisation and where, on creditorís request, a legal person failed to extend an additional guarantee for the performance of obligations.

3.       Creditors of the person under reorganisation shall have the right to acquaint themselves with the documents specified in paragraph 4 of Article 2.96 of the given Code and receive their copies.

 

Article 2.102. Invalidity of Reorganisation

1.          Only the court may declare reorganisation invalid and only in cases where the following circumstances emerge:

1)         no public announcement of the respective documents of the reorganisation procedure has been made or they were not filed with the Register of legal persons;

2)         resolutions on the reorganisation passed by the body of members of a legal person or other managing body are declared invalid;

3)         not all requirements for reorganisation established by the imperative provisions of law have been fulfilled.

2.          Where the period following the termination of a legal person to its applying to the court exceeds six months reorganisation may not be declared invalid.

3.          Where applicable, the court must grant a reasonable time limit to correct mistakes which gave grounds for declaring reorganisation invalid.

4.          Judgement of the court to declare reorganisation of a legal person invalid shall not invalidate the activities of a legal person after reorganisation or of a newly incorporated legal person prior to the alteration of respective data in the Register of legal persons. All legal persons who participated in the reorganisation shall accept solidary liability for obligations arising from such contracts of legal persons.

 

Article 2.103. Simplified Reorganisation of Legal Persons

Where a legal person under reorganisation is joined to a legal person which is the only member of the legal person under reorganisation or where public legal persons participate in the reorganisation, paragraph 3 of Article 2.99 and Article 2.100 of the given Code shall not be applied.

 

Article 2.104. Restructuring of Legal Persons

1.          Restructuring shall be an alteration of the juridical form of a legal person whereby a legal person of a new juridical form becomes the successor to all rights and liabilities duties of the restructured legal person.

2.           Where a legal person, members of which are liable for obligations of a legal person, is restructured, members of a restructured legal person, irrespective of a new  legal form of a legal person, shall accept subsidiary liability, for three years, for the obligations of the restructured legal person which emerge prior to the registration of a legal person of a new  legal form with the Register of legal persons. Where a member of a restructured legal person fails to become a member of a legal person of as new juridical legal form he will not be exempted liability specified in the given paragraph either during restructuring or later.

3.          Public legal person, except public and municipality enterprises, may not be restructured into a private legal person.

4.          Restructuring of legal persons shall be applied, mutatis mutandis, provisions of paragraph 2 of Article 2.101, Article 2.102, paragraph 1 of Article 2.107 and paragraph 1 of Article 2.112.

5.          Laws regulating individual  legal  forms of legal persons may establish a specific mode for the restructuring of legal persons.

 

Article 2.105. Mandatory Restructuring of Legal Persons

1.          Laws may provide for circumstances under which a legal person must alter its  legal form.

2.          Where within the time limit established by the law, which may not be shorter than nine months, members of a legal person fail to pass a resolution on the alteration of legal personís  legal form, it shall be considered that the  legal form of a legal person has been altered and the legal person acts according to the documents of incorporation inasmuch as they do not infringe laws regulating activities of legal persons having the  legal  form into which the said legal person had to be altered.

3.           Where a legal person passes a resolution to liquidate a legal person within the time limit for the restructuring established by the law, paragraph 2 of the given Article shall not be applied.

 

Article 2.106. Grounds for Liquidation of a Legal Person

Grounds for the liquidation of a legal person may only be the following:

1)         resolution of members of a legal person to terminate the activities of a legal person has been passed;

2)         the court or the creditorís meeting has passed a decision to liquidate a bankrupt legal person;

3)         the court has passed a  judgement to liquidate a legal person subject to the provisions of Article 2.131 of the given Code;

4)         the court has passed a  judgement to liquidate a legal person in cases prescribed by Article 2.70 of the given Code;

5)         the term of the legal person has expired;

6)         the number of members of a legal person has decreased more than the permitted the minimum prescribed by law where member of a legal person fails to pass a decision within six months following the decrease, to reorganise or restructure a legal person;

7)          incorporation of a legal person has been declared invalid subject to the provisions of Article 2.114 of the given Code.

 

Article 2.107. Resolution of Members of a Legal Person on Liquidation

1)      Resolution to liquidate a legal person shall be passed by a qualified majority vote of members of a legal person. It shall be established in incorporation documents of a legal person and it may not be lower than 2/3 of all votes of the participants of the general meeting.

2)      Resolution to liquidate a legal person may not be reversed where at least one member of a legal person received part of the property of a legal person under liquidation.

 

Article 2.108. Appointment of a Liquidator

1)         After the resolution to liquidate a legal person has been passed, members of legal persons, general meeting of creditors, registrar of legal persons or the court must appoint a liquidator.

2)         Incorporation documents of a legal person or laws may provide for different rules for the appointment of a liquidator or establish a concrete liquidator. These rules shall not be binding on the court, general meeting of creditors or the registrar of legal persons.

3)         A liquidator shall be a person having the necessary qualifications. Some liquidators may be appointed. Where some liquidators are appointed liquidation commission shall be formed and one of the liquidators shall be appointed a chairman of the liquidation commission.

4)         Where the grounds for liquidation are points 5 and 6 of Article 2.106 of the given Code and where a member of a legal person fails to appoint a liquidator, managing bodies of a legal person or members of a legal person with no less than 1/20 of all votes and registrar of legal persons shall have to apply to court requesting the appointment of a liquidator.

5)         Where the grounds for liquidation are points 3 or 7 of Article 2.106 of the given Code, institution authorised by the Government shall discharge the duties of a liquidator before a liquidator has been appointed by a member of a legal person.. This institution, on the approval of the court, shall have the right to assign other person to discharge the duties of a liquidator.

 

Article 2.109. Revocation of a Liquidator of a Legal Person

1)      Liquidator of a legal person may be revoked by a simple majority of vote of legal personís members present at the meeting.

2)      Members of a legal person with no less than 1/10 of all votes, a creditor with no less than  fifty thousand Litas right of requisition or no less than 1/5 of the legal personís employees shall have the right to apply to court to change the liquidator where he fails to act in a proper manner, is dishonest in effecting settlements with creditors and members of a legal person, is dishonest in discharging other duties or infringes the rights of legal personís members, creditors or legal personís employees.

 

Article 2.110. Authority of a Liquidator

1)         Managing bodies of a legal person shall be divested of their authority and the authority of legal personís members shall be delegated to a liquidator as of the day of his appointment while in cases specified in paragraph 5 of Article 2.108 of the given Code Ė as of the moment when the resolution on the liquidation of a legal person enters into force.

2)         A liquidator shall enjoy the rights of a legal personís managing body and provisions of Chapter VII of the given book shall be applied to him mutatis mutandis.

 

Article 2.111. Contracts of a Legal Person in Liquidation

Legal person in liquidation may conclude only such contracts, which are related to the termination of legal personís activities as well as those contracts, which are provided for in the liquidation resolution.

 

Article 2.112. Notification about Liquidation

1)      The person, which passed a resolution to liquidate a legal person in accordance with the procedure established in the regulations of legal persons, shall make a public announcement thereof  three times with at least 3-month interval between the announcements or make a public announcement once and shall give all creditors written notices thereof. The notices shall include all data listed in paragraph 1 of Article 2.42 of the given Code.

2)      Register of legal persons shall, too, be notified about the liquidation no later than on the first day of the public announcement thereof in accordance with the procedure established in paragraph 3 of Article 2.66 of the given Code.

3)      A different procedure for the notification about the liquidation may be established by the given Code or other laws of the Republic of Lithuania.

 

Article 2.113. Sequence of and Procedure for the Satisfaction of  Claims of a Legal Personís Creditors

1.          In the event of legal personís liquidation the following sequence of and procedure for the satisfaction of creditorsí claims shall be established:

1)         priority in satisfying creditorsí claims shall be given to claims secured by the mortgage of property of a legal person in liquidation - from the value of the mortgaged property;

2)         first in sequence for the satisfaction of claims shall be employeesí claims connected with labour relations; claims of compensation for maiming or other physical injuries, occupational disease or deprivation of life resulting from an accident in the place of work as well as claims of natural persons to settle accounts for agricultural produce supplied for processing.

3)         second in sequence for the satisfaction of claims shall be the claims related to taxes and other payments to the budget as well as compulsory state social insurance and health insurance contributions and foreign loans granted the State guarantee;

4)         third in sequence for the satisfaction of claims shall be all other claims of creditors.

2.          The claims of creditors of each successive sequence shall be fulfilled upon fully satisfying the claims of creditors of the preceding sequence. If assets are insufficient to fulfil all the claims of one sequence in full, said claims shall be satisfied in proportion to the amount of claims due to each creditor.

 

Article 2.114. Unlawful Incorporation of a Legal Person

1.          Unlawful incorporation of a legal person may be recognised only by the court and only in cases where:

1)         all incorporators were incapable or the provision establishing the minimum number of incorporators has been violated;

2)         documents of incorporation prescribed by law have not been drawn up or  mandatory provisions of the regulations for the incorporation of a legal person have been violated;

3)         true goals of legal personís incorporation were unlawful or contradict public order;

4)         minimum authorised capital has not been formed in accordance with the procedure established by law and within the established time limit;

5)         documents of a legal person fail to provide for its business name, goals, amounts of authorised capital and personal contributions of the members of a legal person where such requirements are provided in the mandatory  provisions of laws regulating individual juridical forms of legal persons.

2.          Where the court passes a judgement that the incorporation of a legal person was unlawful the said legal person must be liquidated in accordance with the procedure established by law.

3.          Where applicable, the court must grant a reasonable period of time to correct mistakes due to which the incorporation of a legal person was recognised to be unlawful.

4.          Passing a judgement that a legal person has been incorporated unlawfully the court shall have to take into consideration the interests of employees and members of a legal person who participated in the incorporation of a legal person.

5.           The claim for the recognition of unlawful incorporation of a legal person may be filed by a member or managing bodies of a legal person as well as by a public prosecutor to protect public interests.

 

CHAPTER IX

FORCED SALE OF SHARES (INTEREST, CONTRIBUTIONS)

 

Article 2.115. Content of Forced Sale of Shares (Interest, Contributions)

1.       Members of a legal person listed in Article 2.116 of the given Code shall have the right to file an application to the court with the request that shares (interest, contributions) of a legal person which are in possession of a legal personís member whose actions contradict the goals of legal personís activities and where there are no grounds to expect any changes in the said actions, be sold to the applying member of a legal person.

2.       The claim for the forced sale of shares (interest, contributions) shall be filed with the district court according to the location of the registered office of a legal person. The court must inform the legal person, whose shares (interest, contributions) have to be sold in the forced manner, about the claim and the decisions.

3.       Participation of a lawyer in the process of litigation of the parties to the given cases shall be compulsory.

4.       Member of a legal person who has filed a claim for forced sale must apply to other members of a legal person to become co-claimants.

 

Article 2.116. Persons Entitled to File an Application for Forced Sale of Shares (Interest, Contributions).

1.          The following members of a private legal person shall have the right to file an application for forced sale of shares (interest, contributions):

1)         one or some shareholders of a private company whose face value of shares accounts for no less than 1/3 of the authorised capital;

2)         one or some members of a partnership whose interest accounts for no less than 1/3 of all interest of jointly owned assets;

3)         one or some members of an agricultural partnership or co-operative society whose contribution accounts for no less than 1/3 of all contributions.

2.          A member of a legal person shall have no right to file an application for the forced sale of shares (interest, contributions) under the circumstances laid down in Article 2.115 if incorporation documents of a legal person or contracts concluded by its members provide for different rules of forced sale of shares (interest, contributions) and the said rules may be applied.

3.           Member of a legal person shall have no right to file an application for forced sale of shares (interest, contributions) if he is controlled by a legal person the shares whereof (interest, contributions) have to be sold in a forced manner.

4.          Member of a legal person shall have no right to file an application for forced sale of shares (interest, contributions) if he himself is the legal person the shares whereof (interest, contributions) have to be sold in a forced manner

 

Article 2.117. Restrictions on the Transfer of Title to Shares (Interest, Contributions)

1.       A defendant shall have no right, without claimantís consent, to sell or otherwise  transfer the title to shares (interest, contributions), to mortgage them or otherwise  encumber the rights to them as well as transfer or otherwise encumber the rights granted by the shares (interest, contributions) as of the day on which the court  judgement becomes res judicata, except as otherwise decided by the court. The court shall enjoy the right to authorise the acts specified in the given paragraph if a defendant fails to give his consent thereof.

2.       A defendant shall have no right to sell, except according to the provisions of the given section, or otherwise  transfer the title to shares (interest, contributions), to mortgage them or otherwise  encumber the rights to them, as well as transfer or otherwise  encumber the rights granted by the shares (interest, contributions) as of the day on which the court  judgement  becomes res judicata,  except as otherwise decided by the court.

3.       The court may, upon  plaintiffís request, prohibit a defendant to exercise his right to vote without the consent of the court or a plaintiff.

4.       Prohibitions established in paragraphs 1 and 3 of the given Article shall be valid irrespective of the appeal against the court judgement.

 

Article 2.118. Appointment of Experts

1.          Upon satisfaction of a claim the court shall have to appoint experts to set the price of shares (interest, contributions).

2.          Experts shall start their activities only after the court  judgement becomes res judicata . Experts shall have to present a written report on the price of shares (interest, contributions) to the court and the parties to the case.

3.          Articles 2.127 Ė 2.130 of the given Code shall be applied mutatis mutandis.

 

Article 2.119. Setting of a Price

1.          After the expertsí report on the price of shares (interest, contributions) has been submitted, the court shall have to pass a judgement on the setting of a price and establish the person who will have to reimburse expertsí work and other expenses borne. The court may decide that a legal person shall have to reimburse the given expenses.

2.          A separate appeal against the court judgement whereby a price is set may be lodged.

 

Article 2.120. Procedure for Forced Sale

1.          After the court judgement on setting a price has become res judicata  the defendant shall have, in two weeks time, to transfer title to his shares (interest, contributions) to the plaintiff and the plaintiff shall have the right to accept the shares (interest, contributions) and pay the established price. The price shall have to be paid upon the  transfer of title to the shares to the plaintiff. Transfer shall take place in the registered office of a legal person whose shares (interest, contributions) are sold or in some other place agreed upon by the plaintiff and the defendant.

2.          Where a defendant fails to discharge his duty to transfer the title to his shares (interest, contributions), a legal person shall have to transfer the title to the shares (interest, contributions) in the defendantís name and issue documents confirming the ownerís rights to the shares (interest, contributions) sold in the forced manner and declare respective defendantís documents invalid as well as make a public announcement thereof in the source prescribed by the legal acts. Upon the receipt of documents confirming the title to the shares (interest, contributions), the  plaintiff shall pay the price into the deposit account of a notary, bank or other credit institution.

3.          In the event that there are some plaintiffs, shares (interest, contributions) sold in forced manner shall be allotted as proportionally as possible to the legal personís shares (interest, contributions) held by the plaintiffs.

 

Article 2.121. The Procedure for Forced Selling of Shares in the Presence of a Prior Right

1.          Where other members or persons of a legal person have a prior right to acquire the shares (interest, contributions) sold in forced manner, a legal person, upon the receipt of a res judicata  court  order on the setting of a price, must make a proposal to the said persons to purchase shares (interest, contributions) for the price fixed by the court. After the court judgement on the forced sale of shares (interest, contributions) has become res judicata , the defendant shall have to notify a legal person about the persons who enjoy the prior right to acquire shares (interest, contributions) sold in forced manner in accordance with the contracts concluded by the plaintiff.

2.          Upon the receipt of legal personís proposal to exercise the prior right, the persons shall have, within thirty days, in writing, to accept or reject the proposal. Where a person fails to reply to the said proposal, the proposal shall be deemed unaccepted.

3.          Upon the expiry of a thirty-day time limit, a legal person shall have to notify the plaintiff and the defendant of how many shares (interest, contributions) have been accepted. Upon the receipt of the said notification, the defendant shall have to  transfer title to the shares to persons specified in the notification and the remainder of them, in accordance with the provisions of Article 2.120 of the given Code, to the  plaintiff. Shareholders who purchase shares (interest, contributions) shall have to make payments for them in accordance with the provisions of Article 2.120 of the given Code. Where the persons enjoying the prior right fail to make timely payments for shares (interest, contributions), shares (interest, contributions) shall be transferred to the plaintiff.

 

Article 2.122.  Transfer of the Right to Vote

1.       Persons listed in Article 2.116 of the given Code shall enjoy the right to apply to the court with a request to reinstate the owner of shares (interest, contributions) in his right to vote in cases where the right to vote has been assigned to other person whose actions contradict the goals of a legal person and there no grounds to expect positive changes in the future.

2.       The owner of shares (interest, contributions) shall be granted the right to vote as of the day on which the court judgement has become res judicata.

3.        In this case paragraphs 2 and 3 of Article 2.115, Article 2.116, paragraph 3 of Article 2.117 of the given Code shall be applied mutatis mutandis.

 

Article 2.123. Forced Sale of Shares (Interest, Contributions) Due to the Failure to xercise the Rights Properly

1.          Where members of a legal person listed in Article 2.116 fail to exercise their rights of members of a legal person properly due to the actions of the other member of a legal person and where there no grounds to expect any positive changes in the future, the said members may file an action to the court requesting the member of a legal person, whose actions obstruct proper exercise of their rights, to purchase their shares (interest, contributions). In this case paragraphs 2 and 3 of Article 2.115 and Articles 2.116 Ė 2.121 of the given Code shall be applied mutatis mutandis.

2.          Member of a legal person who is requested to purchase  plaintiffís shares (interest, contributions) must apply to other members of a legal person with the proposal to become co-defendants.

 

CHAPTER X

INVESTIGATION OF LEGAL PERSONíS ACTIVITIES

 

Article 2.124. Content of the Investigation of Legal Personís Activities

Persons listed in Article 2.125 of the given Code shall enjoy the right to request the court to appoint experts who have to investigate whether a legal person or legal personís managing bodies or their members acted in a proper way, and in the event that improper actions are established to apply measures specified in Article 2.131 of the given Code.

 

Article 2.125. Persons Enjoying the Right to Apply for Investigation of the Activities

1.          The following persons shall enjoy the right to apply for investigation of the activities:

1)         one or some shareholders who hold or manage shares the par value of which accounts for no less than 1/10 of the authorised capital;

2)         one or some members of an economic partnership whose interest accounts for no less than 1/10 of all interest;

3)         one or some members of a farming partnership or a co-operative society (co-operative) whose contributions account for no less than 1/10 of all contributions;

4)         members of a legal person who have no less than 1/5 of all votes, with the exception of legal personsí members listed in Articles 2.35 and 2.37 and in points 1,2 and 3 of the given paragraph, who have no less than 1/5 of all votes;

5)         persons as well as members of a legal person who, according to incorporation documents or contracts concluded with legal persons, have been granted said right.

2.          The public prosecutor shall also have the right to apply for the investigation of legal personís activities in an attempt to safeguard public interests including the cases where the activities of a legal person, its managing bodies or its members are at variance with the public interests.

 

Article 2.126. Filing of an Application

1.          An application for the investigation of activities shall be filed with the district court according to the location of the legal personís registered office.

2.          An application may be filed only after a plaintiff has applied to a legal person (legal personís managing body or its member) with the request to terminate inappropriate activities and has granted a reasonable time limit to adjust the situation. A request, which either fails to specify inappropriate activities or bad faith in discharging the duties or give reasons why the activities are considered to be inappropriate, shall not be deemed to be an application.

3.        Participation of a lawyer shall be obligatory in drawing up an application for the investigation of activities. Where a public prosecutor, acting in the public interest, files an application, provisions of the given paragraph shall not be applied.

4.        Upon the receipt of an application and listening to the reasoning of the parties the court shall pass a judgement  on the investigation of legal personís activities if there are grounds to presume the feasibility of circumstances specified in Article 2. 124, paragraphs 2 and 3 of Article 2.125, or shall reject the application.

 

Article 2.127. Appointment of Experts

1.          The court may appoint as experts any independent persons, who have the necessary qualifications to investigate legal personís activities and make a report, in writing, on inappropriate activities, as well as draw up guidelines for the application of measures specified in Article 2.131 of the given Code.

2.          Prior to the appointment of experts the court must make a proposal to the parties to reach a consensus on the appointment of specific experts. Where a consensus has been reached, the court shall appoint jointly chosen experts if they meet the requirements set in paragraph 1 of the given Article. Where a consensus on the appointment of experts has not been reached, the court shall appoint experts, at its discretion, from the list, compiled by the parties, of proposed experts. Each party must compile a list of no less than ten experts and shall enjoy the right to delete, for any reasons, five experts from the list of the other party, as well as to give an opinion on the remaining five experts regarding their compliance with the requirements set in paragraph 1 of the given Article.

3.          The number of experts shall be established by the court with due regard to the scope of investigation of legal personís activities.

 

Article 2.128. Rights of Experts

1.       Experts shall have the right to examine legal personís documents and interrogate members of a legal person, members and employees of managing bodies as well as persons who were legal personís members, members of managing bodies or employees in the period under investigation.

2.       On expertsí instruction a legal person shall have to grant a possibility to examine legal personís property. The judge may, without prior notification to the parties, pass a judgement, which shall grant the right to the experts to take the actions laid down in paragraph 1 of the given Article with respect to other legal persons as well as receive documents and information from respective public institutions.

3.       Where experts are prevented from exercise of their rights the court may give instructions to the police to facilitate the expertsí activities.

 

Article 2.129. Payment for Expertsí Work

1.          The experts, who were appointed by the court, must notify the court about the terms as well as the amount of payment for their services and reimbursement of expenses incurred on them. In the event that the court approves the terms as well as the amount of payment and reimbursement of expenses incurred, it shall fix the sum, which may not be less than seventy per cent of the amount indicated by the experts, without prior notification to the parties. The plaintiff must pay the said sum into the separate account of the court.

2.          Where the plaintiff fails to pay the sum indicated by the court into the separate account of the court, the court shall not proceed with the application. In such cases other parties to the case shall have the right to the reimbursement of court expenses incurred on them.

3.          In the event that the court fails to approve the terms of payment and reimbursement of expenses proposed by experts it shall appoint new experts after listening to the opinions of the parties.

 

Article 2.130. Expertsí Reports and Dissemination of Guidelines

1.       Upon the receipt of expertsí report and guidelines the court must notify the parties and their representatives thereof and send the copies of expertsí report and guidelines to each party and their representatives as well as convene a court sitting to discuss the said report and the guidelines.

2.       Expertsí report and the guidelines must be sent to respective public institutions, which exercise the supervision, prescribed by the law, of legal personís activities.

3.       Persons, who were not specified in the given Article, may examine the expertsí report and guidelines only after permission of the court has been granted.

 

Article 2.131. Measures Applied by the Court

1.          In the event that the expertsí report points out that legal personís (legal personís managing bodies or their members) activities are inappropriate and the court approves the said conclusion, the court may, upon receipt of opinions of the parties and public institutions mentioned in Article 2.130 of the given Code, apply one of the following measures:

1)         revoke the decisions taken by the legal personís managing bodies;

2)         suspend temporarily the powers of the members of legal personís managing bodies or exclude a person from legal personís managing body;

3)         appoint provisional members of legal personís managing bodies;

4)         authorise non-implementation of certain provisions of incorporation documents;

5)         to oblige making of amendments to certain provisions of incorporation documents;

6)         to transfer the legal personís right to vote to other person;

7)         to oblige a legal person to take or not to take certain actions;

8)         to liquidate a legal person and appoint a liquidator.

2.          Upon the appointment of a member of managing body the court may fix his salary.

3.          A decision to liquidate a legal person may not be taken where such decision would contravene the interests of other legal personís members or employees or public interest. A decision to revoke decisions of legal personís managing bodies may not be taken where the period of limitation of actions prescribed by the given Code or other laws has expired.

4.          The court shall have to notify, without delay, the Register of legal persons about the judgement and its becoming res judicata.

 

PART III

AGENCY

 

CHAPTER XI

GENERAL PROVISIONS

 

Article 2.132. Conclusion of Contracts by Agents

1.       Persons shall enjoy the right to conclude contracts through agents with the exception of those contracts which, due to their character, may be concluded only personally as well as other contracts prescribed by the law.

2.       Agency shall be possible on the basis of contract, law statute, court judgement or an administrative act.

3.       Legally capable natural persons as well as legal persons shall act as agents.

4.       Persons who act in their own name although in the interest of other person shall not be deemed to be agents (sales intermediaries, etc.).

 

Article 2.133. Legal Effects of a Contract Concluded by an Agent

1.          the event that a contract was concluded without due authorisation, a person who has concluded the contract shall be liable for his contractual obligations to the other party to the contract, except in cases, where the said party to the contract was aware or had to be aware of the fact that the latter was not entitled to conclude the contract.

2.          A contract concluded by one person (agent) in other personís (principalís) name by disclosing thereby the fact of agency and without exceeding the rights conferred, shall assign, alter and destruct directly the civil rights and obligations of  a principal.

3.          Rights of an agent may also arise from the circumstances under which an agent acts (salesperson in retail trade, cashier, etc.). In the event that behaviour of a person gives reasonable grounds for the third persons to think that he has appointed the other person to be his agent , contracts concluded by the said person in  principalís name shall be binding for the principal.

4.          In the event that concluding a contract an agent fails to inform that he acts in  principalís  name and in his interests, the  principal shall acquire the rights and assume the duties arising from the contract only where the other party to the contract was in a position to understand from the circumstances of conclusion thereof that the said contract was concluded with an agent, or where the identity of the person with whom the contract was concluded was of no importance to the said party.

5.          Where the validity of a contract concluded by an agent is questioned due to a mistake, deceit, duress or threat, the existence or non-existence of the said circumstances shall be established with due regard to agentís will.

6.          Where a contract has been concluded as per  principalís instructions the  principal may not question its validity by stating that concluding the contract the agent ignored certain circumstances if the principal was aware of the said circumstances or ignored them due to his carelessness.

7.       Where a contract has been concluded by a person, who has not been authorised to do so, the principal must bear the consequences thereof only when the principal approves the said contract. The other party to the contract may, in this case, request to approve or not to approve the contract within its established time limit, which may not be shorter than fourteen days. Where no reply has been received within the established time limit the contract shall be deemed not approved. The approval  of  a contract shall have a retroactive effect, i.e. it shall be deemed valid as of the day of its conclusion.

8.       The other party to the contract, which concluded a contract with a person, who was not authorised to do so, may terminate the contract prior to the approval  of  the contract by the principal, except in cases, where at the moment of its conclusion the said party was aware or had to be aware of the fact that it has concluded a contract with a person who has not been granted the requisite authority.

9.       In Where an agent acted in excess of his powers but in the manner which gave to a third person serious grounds to think that he was concluding a contract with a duly authorised agent, the contract shall be obligatory to the principal, except in cases where the other party to the contract was aware or had to be aware that an  agent was exceeding his powers.

 

Article 2.134. Restriction Imposed on Agentís Rights to Conclude a Contract

1.          An agent may not conclude contracts in principalís name either with himself or with a person, whom he represents at the given time, as well as his spouse, parents, children or other close relatives. Such contracts, upon principalís request, may be deemed null and void.

2.          Restrictions laid down in paragraph 1 of the given Article shall not be imposed in the cases where other laws provide otherwise and where an agent acts as a statutory  agent .

3.          An agent may not conclude a contract which a principal himself is not authorised to conclude.

 

Article 2.135. Conflict of Interests

1.          Where, in violation of the rights conferred, an agent enters into a contract, which contravenes the interests of a principal, such contract, upon  principalís request, may be deemed void in the cases where a third person was aware or had to be aware of the conflict of interests.

2.          A person may not act as an agent of both parties to the contract. This provision, however, shall not be applied in the cases where contractual obligations are performed as well as in the cases where both parties to the contract express their will explicitly that the agent has to act in the interests of both parties.

 

Article 2.136. Legal Effects of a Contract Concluded in Other Personís Name Without Express Authorisation or in Excess of Authority

1.          A contract, which was concluded by a person in other personís name without express authorisation or in excess of his authority, shall impose, alter and revoke obligations and rights of  a  principal only in the cases where, at a later date, the  principal approves  all the contract or that part of it, which is in excess of his authority (paragraph 6 of Article 2.133 of the given Code).

2.          Principalís  approval  of a contract at a later date shall make the contract valid as of the date of its conclusion.

3.          Upon conclusion of a contract, which is not approved by  the  principal , under circumstances laid down in paragraph 1 of the given Article, an agent shall have to redress the damage incurred on a third person in the cases where the said third person was not aware and was under no obligation to be aware of the said circumstances.

 

Article 2.137. Power of Attorney

1.       Power of attorney  shall be a written document granted by a person (principal) to other person (authorised agent) to represent a principal in establishing and maintaining relations with the third persons.

2.       An authorised agent whose rights in the power of attorney are not clearly defined shall enjoy the right to perform only those actions, which are necessary for the protection of principalís property and property interests as well as supervision of principalís property.

 

Article 2.138. Verification of  the  Power of Attorney by a Notary

1.          The following  powers of attorney  must be verified by a notary:

1)                     power of attorney to conclude contracts whereby a notarial form is obligatory;

2)                     power of attorney to perform, in natural personís name, the actions related to legal persons, with the exception of the cases where the authorisation of a different form is permitted;

3)                     power of attorney to administer, use or dispose of his immovable property granted by a natural person.

2.          Powers of attorney verified by a notary shall be equalled to:

1)                      powers of attorney of servicemen verified by the commanders (heads)of military units, formations, military institutions and military schools;

2)                      powers of attorney of people in imprisonment institutions verified by the heads of imprisonment institutions;

3)                      powers of attorney of long voyage seamen on the ships, navigating under the colours of Lithuania, verified by the captains of the said ships.

 

Article 2.139. Simplified Verification of Power of Attorney

Power of Attorney, which is granted by a natural person to receive mail (specifically Ė posted money and parcels) as well as to receive salaries and other payments related to labour relations, pensions, benefits, stipends, may be verified by an organisation, in which a natural person works or studies, chairman of a partnership of multi-storey dwelling houses, in which a person resides, or a captain of a long voyage sea-fearing  ship.

 

Article 2.140. Power of Attorney Granted by a Legal Person

1)      Power of attorney granted by a legal person shall be signed and, in the event that the legal person must have a stamp, be stamped by the head thereof.

2)      Additional requirements for a power of attorney granted by a legal person may be prescribed by the law.

3)      Provisions of Articles 2.176-2.185 of the given Code shall be applied to the  power of attorney granted by profit-seeking (commercial) legal persons.

 

Article 2.141. Rights and Obligations of a Legal Person Vested with the Power of Attorney

A legal person may be vested with  the  power of attorney to conclude only such contracts the right of conclusion whereof has been provided in his incorporation documents.

 

Article 2.142. Term of  the  Power of Attorney

1)         The term of the power of attorney may be fixed or open-ended. Where the term of the power of attorney fails to be indicated, the power of attorney shall be valid for one year as of the day on which it was granted..

2)         The power of attorney, verified by a notary, to perform certain actions abroad, which fails to specify its term, shall be valid until the person who granted the power of attorney  revokes it.

3)         Power of attorney, which fails to indicate the date when it was granted, shall be deemed invalid.

 

Article 2.143. The Right to Request  Power of Attorney and its Copy

1)      The third person who concludes a contract with a  principal shall have the right to request an agent to produce his power of attorney and its copy.

 

Article 2.144. Obligation to Return the  Power of Attorney

Upon the expiry of the term of the  power of attorney or revocation thereof prior to the expiry of the term, an  agent shall have to return the power of attorney to a principal or successors to his rights.

 

Article 2.145. Re-authorisation

1.          An authorised agent shall have to perform the acts, which he has been authorised to perform. He may re-authorise the other person to perform the said acts only in the cases where such right has been conferred upon him by the authority he was vested with or where under certain circumstances he is forced to do so to protect the principalís interests. A re-authorised person shall enjoy the same rights and assume the same obligations as an agent in respect of  a  principal and the third persons.

2.          The form of  power of attorney, which is given by re-authorisation shall have to conform to the form of the power of attorney, which has been granted.

3.          The term of  power of attorney granted by re-authorisation may not exceed the term of  power of attorney, which formed the basis for granting it.

4.       A person, who delegates his authority to the other person, shall have to notify a principal thereof and supply the necessary data about the person who was delegated the authority. Where the authorised agent fails to discharge the given obligation he shall be liable for the actions of the person, to whom he delegated his authority, as for his own actions. Where an authorised agent has been appointed as per  principalís  instructions, an agent shall not be liable for the authorised agentís actions, except in the cases where the agent was aware of the fact that the person who was appointed as authorised agent was dishonest and unreliable but failed to notify the principal thereof.

 

Article 2.146. The Right to Revoke Power of Attorney and Re-authorisation and the Right to Waive Them

1.          A principle shall enjoy the right to divest, at any time, of the power of attorney whereas an authorised agent Ė to waive it. Both a principal and an authorised agent may, at any time, revoke re-authorisation. The person who has been vested with  the power of attorney by way of re-authorisation may, in his turn, waive it.

2.          Laws or an agreement of the parties may provide for the cases whereby an irrevocable power of attorney may be granted.

 

Article 2.147. Expiry  of the  Power of Attorney

1.       Power of  attorney  expires:

1)                        upon the expiry of the term of power of attorney;

2)                        upon the divestment of power of attorney by  a principal;

3)                        upon the waiver of  power of attorney by an authorised agent;

4)                        upon termination of a legal person, which was  vested with power of attorney

5)                        upon termination of a legal person which was vested with power of attorney or where the said person was instituted a bankruptcy;

6)                        upon the death, recognition of legal incapacity, partial capacity or absence of a natural person who vested with power of attorney;

7)                        upon the death, recognition of legal incapacity, partial capacity or absence of a natural person who was vested with  the power of attorney.

2.       Upon the expiry of power of attorney, power of re-authorisation, too, shall be terminated.

3.       Expiry of representation may not be used against  third persons acting in good faith, except in cases where the said persons were aware or had to be aware of the expiry of representation but were not aware of it due to their negligence.

 

Article 2.148. Obligation of an Authorised Agent to Notify About the Expiry of the  Power of Attorney

1.          A principle shall have to notify an authorised agent and the third persons known to the principle and for the establishment and maintenance of relations with whom the  power of attorney has been granted, about the divestment of  power of attorney, laid down in point 2 of paragraph 1 of Article 2.147. Where the power of attorney expires on the basis of provisions laid down in points 4 and 6 of paragraph 1 of Article 2.147 of the given Code, successors to the rights of the authorised agent shall have the same obligations.

2.          Rights and obligations of an authorised agent and successors to his rights, arising as a result of the authorised agentís actions prior to the date on which the said agent learned or had to learn about the expiry of the power of attorney, shall be valid for the third persons. In the event that the third person was aware or had to be aware of the expiry of the  power of attorney, the given provision shall not be applied.

3.       Upon the expiry of the power of attorney an authorised person and successors to his rights shall have to return the power of attorney to the principal or successors to his rights.

 

Article 2.149. Subsidiary Application of Provisions Regulating  Agency

Provisions, which regulate agency, shall, too, be applied in the cases where a person whose business was managed by the other person without due authority approves the actions of the said person at a later date.

 

Article 2.150. Obligation of an Agent to Report

An Agent must present a report to a principal about his activities and give an account of everything he received in his mission to the  principal.

 

Article 2.151. Obligation of a Principal to Refund the Expenses and Offer Remuneration

1.          A principal shall have to refund all  agentís expenses related to his mission except as otherwise provided by the law or the contract.

2.          A principal shall have to offer remuneration to the  agent  with the exception of the cases where the law or the contract provide for a free of charge representation.

 

CHAPTER XII

COMMERCIAL AGENCY

 

SECTION ONE

COMMERCIAL AGENT

 

Article 2.152. Concept of a Commercial Agent

1.        A commercial agent  shall be an independent person whose basic business activity is  to act as intermediary for a  principal in conclusion of contracts or conclusion of contracts in his or principalís name and at the latterís expense as well as in his interests.

2.       A principal and an agent  may, in a mutual contract, establish such competition restricting conditions, which are not prohibited by the provisions of the law on competition.

3.       The contract may provide for an exemption, which grants a commercial agent an exclusive right to conclude contracts in principalís name on a certain territory or with a certain group of consumers where such exemption fails to violate the provisions of paragraph 2 of the given Article.

 

Article 2.153. Prerequisites for the Activities of a  Commercial Agent

Prior to commencing his activities a commercial agent shall have to insure his civil liability against possible damage which, as a result of his activities, may be incurred on the  principal or the third persons.

 

Article 2.154.  Establishment of Commercial Agentís Rights and Obligations

1.          Commercial agentís rights and obligations may be established in writing or orally.

2.          Upon a  commercial agentís or a principalís  request their contract must be concluded in writing. Waiver of the right to conclude the contract in writing shall be null and void.

3.          Only upon conclusion of a contract in writing shall the following conditions be valid and shall establish:

1)         restrictions on the civil liability of an agent or a principal or a complete exemption from civil liability ;

2)         prohibition of competition after the contract has been terminated;

3)         conditions for the termination of a contract;

4)         exclusive rights of a  commercial agent;

5)         ratio of the  commercial agentís right to remuneration to the  performance of a contract.

 

Article 2.155. Term of Validity of a Contract

1.          A contract between a commercial agent and a  principal may be for a fixed period or for an indefinite period.

2.          Where a contract has been concluded for a fixed period and where upon the expiry of the given period the parties continue to exercise their rights and discharge their duties, the contract shall be considered renewed for an indefinite period on the same conditions.

 

Article 2.156. Obligations of  a  Commercial Agent

A commercial agent must:

1)      carry out in good faith and carefully comply with all principalís reasonable instructions, be loyal to the principal and act exclusively in the  principalís interest;

2)      notify  the principal, on a regular basis, about contracts, which are being or have been concluded, as well as supply other important information related to his own and  principalís business;

3)      keep  principalís commercial secrets during the term of validity of a contract and upon its expiry;

4)      where such condition has been set in the contract, avoid competition with the  principal;

5)      compensate the losses damages incurred on the principal ;

6)      upon the expiry of a contract, return to the  principal all documents, property and other things which were handed over by the principal.

 

Article 2.157. Obligations of  a  Principal

A principal must:

1)         supply the commercial agent with requisite documents and information (price lists, samples of commodities, advertising materials, standard conditions of contracts, etc.);

2)         notify the commercial agent , without delay, about his consent or refusal to enter into a specific contract or enforce perform it, as well as about alterations of or supplements to the conditions of the contract;

3)         notify, without delay, the commercial agent about the approval or a refusal to approve a contract, which the  commercial agent concluded without due authority;

4)         pay   a salary  as provided in the contract;

5)         supply the commercial agent with information requested for the  performance of the agency contract and especially notify about the existence of a lesser number of trade contracts than the commercial agent might expect.

 

Article 2.158. Remuneration to a  Commercial Agent

1.          A principal shall remunerate a commercial agent for every successfully concluded contract as provided in the agency contract. The commercial agent shall also have the right to remuneration in the case where the contract has been concluded by the  principal himself but owing to the activities of the commercial agent and even in the event that the contract has been concluded after the expiry of agency relations.

2.          A contract may provide that commercial agentís remuneration shall depend on how successfully the principalís instructions have been carried out or that the commercial agent is offered remuneration only in the cases where the third person has  performed the contract. A commercial agent shall also be offered remuneration for the sums of money recovered for the  principal from the third persons.

3.       Where a commercial agent gives a guarantee to a principal that the other party to the contract will perform the contract in the proper way, the commercial agent  shall be entitled to an additional remuneration (del credere). Agreement of the parties to preclude the given right shall be null and void.  The right to additional remuneration (del credere) shall be achieved upon successful  performance of a contract.

4.       In the event that remuneration for  a  commercial agent fails to be set in the contract, he shall be offered the remuneration, which is paid to the commercial agents, employed in the sphere of the said  commercial agentís activities, and for the goods, which are provided in the agency contract, whereas in the absence of such practice the commercial agent shall be entitled to a reasonable remuneration set by taking into consideration all peculiarities of the contract.

 

Article 2.159. Setting of  the Amount  of  Commercial Agentís Remuneration

1.          The amount  of  commercial agentís  remuneration set in the agency contract shall be presented in the form of a specific sum of money or the ratio of the contract value to the recovered sum.

2.          All expenses borne by a commercial agent shall be refunded if the other party to the contract failed to reimburse them (transportation of goods, storage, protection, packaging expenses, customs duties paid, as well as other dues and fees) and they shall not be included into the expenses of  commercial agentís independent activities.

3.          Where the salary of a commercial agent is presented in a concrete sum the Article 2.160 is applied inasmuch as it fails to contradict the essence of the agreement on the commercial agentís salary expressed in concrete terms.

 

Article 2.160. The Procedure for the Remuneration to  a  Commercial  Agent

1.     A commercial agent acquires the right to remuneration as of the moment of the conclusion of a contract on condition that the principal has  performed a contract or had to perform a contract according to an agreement reached with the third party , or the third party performed a contract, and in all cases, however, the latest date is when the third party has performed its part of the contract or could have done it if the principal had performed his part of the contract

2.     Where a contract provides that remuneration for a commercial agent is paid only  after a third  person has performed a contract, a commercial agent shall be entitled to  advance payment An advance payment may not be less than forty per cent of the salary and has to be paid no later than on the last day of the next month following the month on which a contract has been concluded, except as otherwise provided in the contract

3.     Where it becomes evident that the third person will fail to perform a contract a  commercial agent shall be denied the right to request remuneration. In the event that the money has already been paid or an advance payment has been made, a  principal  shall have the right to recover the money from the commercial agent. The given provision shall not be applied in the cases where the principal is at fault for the failure to enforce the contract. 

4.     A principal shall have to remunerate a commercial agent on a monthly basis and no later than on the last day of the month following the accounting period. The parties may, in a written contract, extend the term of payment but no longer than for three months.

5.     Every month, and upon reaching a written agreement at least every three months, a principal shall have to submit to a commercial agent documents of accounting, the data of which shall allow to calculate and offer remuneration, as well as to inform about all circumstances against which payments to the commercial agent are stopped or cut.

6.          In the event of disputes related to remuneration a commercial agent shall enjoy the right to request an audit to establish the exact amounts of remuneration and payments. Waiver of the right to audit shall not be valid. Where a principal refuses to carry out an audit or in the event of disagreement about the auditor the commercial agent shall have the right to file a request with the court for the mandatory appointment of  an  auditor.

7.          Three-year period of limitation shall be applied to requests to recover a commercial agentís remuneration.

8.          Where a commercial agent has been granted an exclusive right to conclude contracts on a certain territory or with certain consumers, a commercial agent shall be entitled to payment by commission, which shall be calculated by taking into account the contracts concluded within the period of validity of the agency contract with the persons from the said territory or the said consumers.

9.          A commercial agent  shall, too, be entitled to payment by commission in the cases where the order of the third party has reached the principal prior to the expiry of the agency contract or within a reasonable period of time after the expiry of the agency contract and the contract is related to the agency contract.

10.      Where a commercial agent is paid by commission after the expiry of the contract, the new agent shall not be entitled to payment by commission except in the cases where division of payment by commission under certain circumstances may be considered to be fair.

 

Article 2. 161. The right to Retention

1.          A dealer commercial agent shall have the right to  retain  principalís  things , which are in his possession and the documents confirming the rights to them until the  principal offers remuneration to the  commercial agent .

2.          Waiver of the right to  retention shall be null and void..

 

Article 2.162. Rights  of  a  Commercial Agent

1.          A  commercial agent shall enjoy the right to perform any requested actions to carry out principalís instruction properly in the  principalís name without special authority . A commercial agent shall have the right to alter provisions of contracts and accept the performance of the contract only in the cases where the given right has been provided separately in the agency contract or a separate  power of attorney.

2.          Even though a commercial agent fails to be vested with authority to enter into contracts he shall be vested with authority to receive claims related to the quantity and the quality of goods as well as other claims related to the enforcement performance of a contract, and exercise, in the principalís name, the latterís right to  secure  the proof.

 

Article 2.163. Liability for Obligations Arising Under Contracts Concluded by a  Commercial Agent

1.       Where a commercial agent, in the principalís name, concludes a contract without authority to do so and where the other party was not aware and was not able to be aware thereof, it shall be recognised that the principal has approved  the contract in the case, where he, upon notification about the said contract by the commercial agent or the third person, failed to inform, without delay, the third person of his disapproval  thereof.

2.       Provision of paragraph 1 of the given Article shall also be applied in the cases where a commercial  agent acted outside his  authority.

 

Article 2.164. Prohibition of Competition

1.          A commercial agent and a  principal may provide in the contract that upon expiry of the contract the commercial agent shall not compete with the principal for no more than two years. The given provision may be agreed upon in writing.

2.          Restriction of competition may be related only to a certain territory or certain  kinds of goods and services or a group of customers and a territory, which were entrusted to the commercial agent.

3.          A principal shall enjoy the right to waive, in writing, in a unilateral manner, the prohibition of competition until the end of a contract.

4.          Where a contract provides for the prohibition of competition a commercial agent shall enjoy the right to compensation for all the period of the prohibition thereof. The amount of compensation shall be fixed by the agreement of both parties. The amount of compensation may be expressed by the sum of annual payment to the  commercial agent.

5.          Where the contract has been terminated through the commercial agentís fault, the  commercial agent shall be divested of the right to compensation provided in paragraph 4 of the given Article.

6.          A  principal shall be divested of the right to refer to the provision of the contract on the prohibition of competition where:

1)                     a principal terminates the contract without commercial agentís consent violating thereby the term of prior notification about the termination of a contract and fails to notify, without delay, the commercial agent about the important reasons for the termination thereof.

2)                     A commercial agent terminates the contract for important reasons for which the  principal is held liable and notifies the principal, without delay, thereof.

3)                     Contract of a  commercial agent and a principal has been terminated by a court judgement for reasons for which the principal is held liable;

7.       The court shall have authority, upon commercial agentís request, to declare full or partial invalidity of the provision on the prohibition of competition where, taking into consideration the commercial agentís lawful interests, the said provision causes him serious damage.

8.       Agreements, which contravene the provisions of the given Article and aggravate the situation of the  commercial agent, shall be null and void.

 

Article 2.165. Termination of  a  Contract Concluded for an Indefinite Period

1.          An agency contract for indefinite period  may be terminated on each partyís initiative subject to the condition that the other party has been notified about the termination thereof within the following term:

1)         a month before Ė where the contract was  valid  for one year;

2)         two months before Ė where the contract was  valid for no more than two years;

3)         three months before Ė where the contract was valid for no more than three years;

4)         four months before Ė where the contract was valid for more than three years.

2.          The parties may not establish a shorter term of notification by an agreement but may establish a longer term of notification but in all cases the same term of notification shall be established for both parties.

3.          The party, which has terminated a contract without the other partyís consent and has violated the term of prior notification, must compensate the other party for the losses incurred by its actions, except in the cases, where the contract has been terminated for compelling reasons, which have to be notified, without delay, to the other party.

4.          Except as otherwise agreed upon by the parties, the last day of notification and the day of the termination of a contract shall have to coincide with the end of the calendar month.

5.          Where the term of an agency contract has expired and the fixed period contract became a contract for an indefinite period, the term of notification laid down in paragraph 1 of the given Article, which includes the time limit of validity of a fixed period  contract, shall be applied to its termination.

 

Article 2.166. Termination of a Contract for a Fixed Period

1.          Each party shall have the right to terminate a fixed period contract before the expiry of its term where there are compelling reasons to do so. Waiver of the given right shall be null and void.

2.          Where the contract is terminated for reasons, for which the other party is liable, the latter shall have to compensate for the losses damages inflicted by the termination of the contract.

 

Article 2.167. Right to Compensation for the Damages

1.       Where a contract has been terminated prior to the expiry of its term not through  commercial agentís fault he shall be entitled to compensation. Waiver of the right to compensation shall be null and void. 

2.       Besides, a commercial agent shall be entitled to compensation where:

1)          upon the termination of the contract the principal has considerable profit from the business relations established by the  commercial agent;

2)          taking into consideration all circumstances, compensation would be in line with the principle of justice.

3.       Maximum amount for compensation shall be the average annual payment to the  commercial agent calculated for all the term of contract validity where the contract was valid for no more than five years.

4.       Requirements for compensation shall be applied one year period of limitation counted as of the day following the termination of a contract.

5.       A  commercial agent shall be divested of the right to compensation where:

1)      the contract has been terminated on the commercial agentís initiative except in the cases where the commercial agent terminated a contract due to the unlawful actions of the principal or due to his illness, age or disability which prevent him from discharging his obligations properly.

2)      the contract has been terminated on the principalís initiative where the  commercial agent was at fault.

3)      A  commercial agent, with principalís  consent transfers his rights and obligations stipulated in the agency contract to the other person.

6.       A commercial agent shall be vested with authority to request compensation for  damages, which he suffers upon the termination of the contract with a  principal, and especially if he fails to receive a commission he is entitled to after a successful  performance of an agency contract and a principal profits substantially from the commercial agentís activities, where he fails to refund the expenses the  commercial agent had to bear in the execution of the  principalís instructions.

 

Article 2.168. Exemptions

1.          The laws may provide for exemptions to the provisions of the given Section where they are deemed necessary due to the specific character of  commercial agentís activities in the different fields of business.

 

SECTION TWO

PECULIARITIES OF COMMERCIAL AGENCY IN CONCLUSION AND  PERFORMANCE OF INTERNATIONAL CONTRACTS OF PURCHASE AND SALE OF GOODS

 

Article 2.169. The Field of Application

1. Provisions of the given Section shall be applied only in the cases where the following requirements are fulfilled:

1)         an international contract of purchase and sale of goods has been concluded and is  performed;

2)         a principal  and the third person reside in different states.

2. Provisions of the given Section shall be applied only to the relations between a principal and a commercial agent, on the one hand, and the third person, on the other.

3. Provisions of the given Section shall not be applied:

1)      to shares or other securities traded in the stock exchange;

2)      to commodities sold by auction;

3)      to the activities of statutory representatives as well as activities of representatives appointed by the decision of the court or an administrative institution.

4. Where a legal personís managing bodies or employees act without overstepping the authority prescribed by law or legal personís incorporation documents they, in the given Section, shall not be deemed to be agents.

 

Article 2.170. Rights and Obligations of  an  Agent

1.          Rights and obligations of an agent may be express or implied in specific circumstances.

2.          An agent shall be vested with authority to perform any acts, which under specific circumstances are necessary to carry  out  principalís instruction properly.

3.          Rights and obligations of an agent may be presented in any form and any mode of proof may be used to prove their content.

 

Article 2.171. Validity of Contracts Concluded by  an  Agent

1.       Where an  agent acts in  principalís name and in his interests without overstepping his authority and where the third person was aware or had to be aware that he was concluding the contract with an agent, the principal shall achieve the rights and assume obligations arising under the contract.

2.       Rights and obligations arising under a contract concluded by the agent shall be imposed on a  agent  and not a  principal where:

1)         the third person failed to know and was not obliged to know that the contract was concluded with an  agent (undisclosed agency );

2)         specific circumstances (e.g. provision of the contract) confirm that the agent, not the principal, intended to achieve rights and assume obligations arising under the contract.

3.                      Where an agent fails to discharge his obligations to the principal, the principal, notwithstanding the circumstances laid down in paragraph 2 of the given Article, may exercise the rights, achieved by the agent, and related to the third person, by taking into consideration the right of the third person to use protective measures against the  agent. Where the agent fails to discharge his obligations to the third person, the said person shall be vested with authority to exercise his rights, achieved against the  agent, and related to the principal, by taking into account the right of the agent to use protective measures against the third person as well as the  principalís right to use protective measures against the agent.

4.                      Rights provided in paragraph 3 of the given Article may be exercised if the principal, the agent and the third person have been respectively notified thereof. Upon the receipt of the said notification, the third person or the  principal may not waive the obligations linking them with the agent.

5.                      Where an agent fails to discharge his obligations to the third person through a  principalís  fault, the agent must reveal  principalís name to the third person.

6.          Where the third person fails to discharge his obligations to the agent,  the agent must reveal the third personís name to the principal.

7.          A principal may not exercise the rights achieved by  the  agent and related to the third person, where the third person proves, that he would not have concluded the contract if he had known who the  principal was.

 

Article 2.172. Conclusion and Enforcement of a Contract Without Due Authority or Outside Oneís Authority

1.          Where a person acts without due authority  or  outside his authority his actions shall have no legal consequences for the  principal. In such cases rights and obligations of the said person and the third person shall be achieved.

2.          Provisions of paragraph 1 of the given Article shall not be applied in cases where  principalís behaviour gave reasonable grounds for the third person to think that the  agent had due authority and has not exceeded his powers.

 

Article 2.173. Approval  of  Agentís Actions

1.       A principal shall have the right to approve the actions taken by the person who was not authorised to do so or was outside his authority. Approval may be done in different ways. Besides, approval may be implied in principalís behaviour. Approval enters into force as of the moment of its receipt by the third person. Approval, which entered into force, shall be irrevocable.

2.       Where at the moment of entering into the contract the third person is unaware and is not able to know that the agent is not vested with authority or acts outside it, the third person shall not be liable to the principal if prior to the approval of  his actions he notifies the principal, that the contract is not binding on him even after it has been approved.

3.       Where on entering into a contract the third person knew or had to know that the  agent was not vested with authority or acts outside it the third person may not terminate the contract prior to the approval of  agentís actions or thereafter.

4.       The third person shall in all cases enjoy the right to waive only a partial approval  of the  agentís actions.

5.       Where a person performs certain actions in the future legal personís interests prior to the incorporation of a legal person, such actions may be approved only in the cases prescribed by the law.

 

Article 2.174. Legal Consequences of a Failure to Approve  Agentís Actions

1.          Where a person acts without due authority  or  outside his authority and where the  principal refuses to approve his actions, the person must compensate to the third person those losses which would enable the third person to be in the situation in which he might have been if the agent had possessed the requested authority or acted without overstepping  his authority.

2.          A person shall not be liable to the third person where the third person knew or had to know, that the person was not vested with authority or acted outside it.

 

Article 2.175. Termination of  Agentís  Authority

1.       Authority of  an  agent shall be terminated:

1)                  upon the agreement between a  principal  and an agent ;

2)                  upon conclusion of the contract or performance of some other action for which the authority was granted;

3)                  where a  principal divests the agent of the authority he was granted;

4)                  where an agent waives the rights he was granted;

5)                  in other cases provided for by the given Code.

2.          Termination of  agentís authority shall not exercise influence on the authority of the third person except in the cases where the third person knew or had to know about the termination of  agentís authority or the circumstances, which formed the basis for the termination thereof.

3.          Notwithstanding the termination of  agentís authority, an agent shall enjoy the right to perform, in principalís or his successorsí interests, certain actions which are necessary to avoid damage, which may be incurred on his or his successorsí interests.

 

SECTION THREE

PROCURACY

 

Article 2.176. Concept of Procuracy

1.          Procuracy shall be a power of attorney, which a legal person (entrepreneur) grants to his employee or other person to perform, in  principalís name and in his interests, all legal acts related to legal personís (entrepreneurís) undertaking.

2.          Besides, procuracy shall grant the right to perform, in principalís name and in his interests, legal acts in the court or other non-judicial institutions.

3.          A person who is issued a procuracy shall be a procurator.

 

Article 2.177. Issuance of a Procuracy

1.          Procuracy shall be issued by a respective managing body of a legal person or the owner of a legal person or his authorised person in accordance with the procedure established in incorporation documents.

2.          Procuracy may be issued to some persons (joint procuracy). In such case all procurators shall have to act together.

Article 2.178. Form of a Procuracy

1.       Procuracy shall be issued in writing and signed by a person vested with authority to issue a procuracy.

2.       Procuracy shall be registered in accordance with the procedure prescribed by the law.

 

Article 2.179. Rights of a Procurator

1.          A procurator shall not have the right to perform and he may not be authorised to perform the following acts:

1)                     to transfer an immovable object thing of the principal (enterprise) or  encumber the   rights to it;

2)                     to sign the balance sheet and tax return of the principal;

3)                     to institute bankruptcy proceedings of the  principal;

4)                     to issue a procuracy;

5)                      to accept interest holders into an enterprise;

2.          A procurator shall not have the right to delegate his authority to the other person.

 

Article 2.180. Restrictions on a Procuracy.

1.       Procuracy may be restricted. Procuracy may be restricted to a branch office of a legal person, respective spheres and types of legal personís activities, certain circumstances, time or territory.

2.       Restrictions on procuracy shall have no effect on the third persons.

 

Article 2.181. Entering Into Force of a Procuracy

1.       A procuracy establishing the relations between a principal and a procurator shall enter into force as of the moment of its issuance.

2.          A procuracy, which is establishing relations between a procurator and the third persons shall enter into force as of the moment of its registration in accordance with the procedure prescribed by the law.

 

Article 2.182. Signature of a Procurator

Signing documents in a principalís name a procurator shall have to indicate that he acts as a procurator, i.e. to include the word ďprocuratorĒ or its abbreviation ďppĒ.

 

Article 2.183. Procuratorís Liability

A procurator shall be liable to a  principal and the third persons in the same manner as a commercial agent.

 

Article 2.184. Termination of Procuracy

1.          Procuracy shall be terminated when:

1)                     a principal revokes it;

2)                     a procurator waives it;

3)                     a principal has been instituted bankruptcy proceedings;

4)                     a legal person which issued the procuracy is liquidated or reorganised;

5)                     a procurator is dead.

2.          Procuracy shall be terminated as of the date of a respective entry in a respective register with the exception of the cases laid down in points 4 and 5 of paragraph 1 of the given Article.

 

Article 2.185. Acts Performed Without Procuracy

1.          A principal may instruct his employees to perform acts, which in a certain field of undertaking are usual and commonplace, without issuance of the procuracy. In such cases provisions of the given Code regulating a procuracy shall be applied by analogy.

2.          It is presumed that employees working in a shop or a warehouse shall have the right to sell, deliver or receive goods as well as receive claims concerning the quantity and quality of goods.

3.          On signing documents in the principalís name employees specified in the given Article shall have to indicate their capacity, name, family name and authority.

 

BOOK THREE

FAMILY LAW

 

PART I

GENERAL PROVISIONS

 

CHAPTER I

FAMILY LAWS

 

Article 3.1. Relationships governed by Book Three of the Civil Code of the Republic of Lithuania

1.          The provisions of Book Three of the Civil Code of the Republic of Lithuania define the general principles of the legal regulation of family relations and govern the grounds and procedures of entering into marriage, validity and dissolution of marriage, property and non-property personal rights of spouses, filiation, mutual rights and responsibilities between children, parents as well as other family members, the basic provisions on adoption, guardianship, curatorship and on the procedures of registering Acts of Civil Status.

2.          The provisions of the other Books of the Civil Code, as well as the provisions of other civil laws, shall apply to family relationships to the extent that they are not regulated by the provisions of this Book.

 

Article 3.2. Sources of family law

1.          Family relations shall be governed by the Constitution, the Civil Code and other laws of the Republic of Lithuania as well as by the international treaties of the Republic of Lithuania.

2.          The Government and other public authorities of the Republic of Lithuania may adopt regulations on family law matters only in the cases and to the extent provided for in this Code and other legislation.

3.          Customs shall apply to family relations only in cases provided for by legislation. In case there is a contradiction between the law and the custom, the law shall prevail.

 

Article 3.3. Principles of the legal regulation of family relationships

1.          In the Republic of Lithuania the legal regulation of family relationships shall be based on the principles of monogamy, voluntary marriage, equality of spouses, priority of protecting and safeguarding the rights and interests of children, up-bringing of children in the family, comprehensive protection of motherhood and other principles of the legal regulation of civil relationships.

2.          Family laws and their application must ensure the strengthening of the family and its significance in the society, the mutual responsibility of family members for the preservation of the family and the education of the children, the possibility for each member of the family to exercise his or her rights in an appropriate manner and to protect the children of minor age from the undue influence of the other members of the family or other persons or any other such factor.

 

Article 3.4. Analogy of statute or law

1.          Where family relationships are not governed by this or the other Books of the Civil Code, they shall be governed by the provisions of other civil laws applicable to similar legal relations. The application by analogy of special legal norms  stipulating derogation from the general provisions shall be prohibited.

2.          Where it is not possible to apply statute by analogy and also where the resolution of the matter is left to judicial discretion, the rights and duties of the subjects of family relations shall be determined on the basis of justice, good faith, reasonableness and other general legal principles.

3.          Where there are no mandatory rules, also in cases provided for in this Code and other laws, the subjects of family relations may determine their rights and duties by mutual agreement in accordance with the principles enshrined in  paragraph 2 and Article 3.3 hereof.

 

Article 3.5. Implementation and protection of family rights

1.          ersons are free to implement and exercise their family rights at their own discretion including the right to the protection of family rights. A waiver from a family right or its implementation shall not abolish the right except in cases provided for by law.

2.          In exercising their family rights and performing their duties, persons must comply with the laws, respect the rules of their community life as well as the principles of good morality and act in good faith.

3.          It is Pprohibited to abuse family rights, i. e. it is prohibited to exercise them in such a way and by such means as would violate or restrict other personsí rights or interests protected by law, or would inflict harm on other persons. If a person abuses a family right, the court may refuse to protect it .

4.          Family rights shall be protected by courts, institutions of guardianship and curatorship, governmental or non-governmental organisations in the ways provided for herein. Courts and other institutions shall seek that the parties to a dispute resolve their dispute peacefully by mutual agreement, and shall help the parties in every possible way to reach such an agreement.

 

Article 3.6Limitation period for action

1.          Claims arising from legal family relations shall be subject to statutory limitations except for the exemptions provided for in this Book hereof.

2.          The procedures for the calculation, suspension, termination or restoration of limitation periods shall be stipulated in the rules of Book One hereof unless this Book provides for different rules.

 

PART II

MARRIAGE

 

CHAPTER II

CREATION OF MARRIAGE

 

SECTION ONE

AGREEMENT TO MARRY AND ITS LEGAL CONSEQUENCES

 

Article 3.7. Concept of marriage

1.          Marriage is a voluntary agreement between a man and a woman to create legal family relations executed in the procedure provided for by law.

2.          A man and a woman who have registered their marriage in the procedure provided for in law shall be deemed to be spouses.

 

Article 3.8. Agreement to marry (engagement)

1.          Agreement to marry is not binding and may not be enforced by force although it may give rise to legal consequences described in Articles 3.9 to 3.11 hereof.

2.          An agreement to marry may be expressed orally or in writing.

3.          An application to register a marriage submitted to the Register Office in the prescribed format shall be deemed to be a public agreement to marry.

 

Article 3.9. Return of gifts

1.          If the engagement is terminated, both parties to the public agreement to marry shall have a right to demand that the other party return everything he or she has received from the other party as a gift in consideration of the intended marriage except where the value of the gift is under one thousand litas or where the party who had received a gift died before the registration of the marriage and the marriage has not been contracted due to the death of one of the parties.

2.          Requests for the return of gifts shall be governed by the rules of Book Six hereof regulating relations pertaining to unjust enrichment or acquisition of assets not due.

3.          An action for the return of a gift may be brought within a year of the date of the refusal to marry.

 

Article 3.10. Compensation of damages

1.          The party to the agreement to marry that has refused to contract the marriage without a reasonable cause must compensate the damages incurred by the other party due to the refusal to marry.

2.          The damages include the actual expenses of the party in preparation to marry and the actual expenses made in performing the obligations related to the intended marriage.

3.          Where a party refuses to marry for a weighty reason that has emerged through the fault of the other party, the party at fault shall pay damages under paragraphs and 2 hereof.

4.          The time limit to present claims for damages shall be one year after the date of the refusal to marry.

 

Article 3.11. Compensation for non-pecuniary damage

1.          Where the parties had made a public agreement to marry, the party entitled to damages under Article 3.10 hereof, may also claim compensation for non-pecuniary damage.

2.          An action for compensation of non-pecuniary damage may be brought within a year of the date of the refusal to marry.

 

SECTION TWO

CONDITIONS FOR CONTRACTING A MARRIAGE

 

Article 3.12. Prohibiting marriage of persons of the same gender

Marriage may be contracted only with a person of the opposite gender.

 

Article 3.13. Voluntary nature of marriage

1.          Marriage shall be contracted by a man and a woman of their own free will.

2.          Any threat, coercion, deceit or any other lack of free will shall provide the grounds on which the marriage declared null and void.

 

Article 3.14. Legal age of consent to marriage

1.          Marriage may be contracted by persons who by or on the date of contracting a marriage have attained the age of 18.

2.          At the request of a person who intends to marry before the age of 18, the court may, in a summary procedure, reduce for him or her the legal age of consent to marriage, but by no more than three years.

3.          In the case of a pregnancy, the court may allow the person to marry before the age of 15.

4.          While deciding on the reduction of a personís legal age of consent to marriage, the court must hear the opinion of the minor personís parents or guardians or curators and take into account his or her mental or psychological condition, financial situation and other important reasons why the personís legal age of consent to marriage should be reduced. Pregnancy shall provide an important ground for the reduction of the personís legal age of consent to marriage.

5.          In the process of deciding on the reduction of the legal age of consent to marriage, the state institution for the protection of the childís rights must present its opinion on the advisability of the reduction of the personís legal age of consent to marriage and whether such a reduction is in the true interests of the person concerned.

 

Article 3.15. Active capacity

1.          A person who has been declared by a res judicata court judgement) to be legally incapacitated may not contract a marriage.

2.          If there is knowledge of a case pending before a court for the declaration of one of the parties to an intended marriage to be legally incapacitated, the registration of the marriage must be postponed until the judgement of the court becomes res judicata.

 

Article 3.16. Prohibition to violate  the principle of monogamy

A married person who has not terminated his or her marital bond in accordance with the procedures laid down by the law may not enter into a second marriage.

 

Article 3.17. Prohibition to contract marriage between close relatives

Marriage between parents and children, adopters and adoptees grandparents and grandchildren, real or foster-brothers and real or foster-sisters, cousins, uncles and nieces, aunts and nephews shall be prohibited.

 

SECTION THREE

FORMATION OF MARRIAGE

 

Article 3.18. Application to register a marriage

Persons intending to marry must file an application to register the marriage in the procedure specified in Article 3.299 hereof.

 

Article 3.19. Making public the application to register a marriage

The fact of the submission of the application to register a marriage shall be made public in the procedure specified in Article 3.302 hereof.

 

Article 3.20. Confirmation of the compliance with the requirements for the formation of a marriage

1.       While filing an application to register a marriage, the intended spouses must confirm in writing that they have met all the requirements laid down for the formation of marriage in Articles 3.12 to 3.17 hereof.

2.       Before registering a marriage, the officials of the Register Office must check if all the requirements laid down in Articles 3.12 to 3.17 for the formation of marriage have been complied with.

 

Article 3.21. Premarital medical examination

1.          At the time of filing an application to register a marriage, the officials of the Register Office shall suggest to the intended spouses that they undergo a premarital medical examination and prior to the date of the registration of their marriage submit a doctorís certificate drawn up in the form specified by the institution authorised by the Government.

2.          Failure to submit a doctorís certificate shall not be an impediment for the registration of the marriage.

3.          Failure of one of the parties to an intended marriage to inform the other party that he or she is suffering from a venereal disease or AIDS shall provide a cause for rendering the marriage null and void.

 

Article 3.22. Declaration on impediments to marriage

1.          Any interested person shall have a right to make a written declaration to the Register Office that has made the application to register a marriage public to the effect that, subject to this Book, there are impediments to the marriage.

2.          Having received a declaration on impediments to a marriage, the official of the Register Office shall postpone the registration of the marriage and request that the declarant submit written evidence of the facts alleged in the declaration within three days. If the declarant fails to submit such evidence within three days, the marriage shall be registered in accordance with the general procedures.

3.       If the written evidence on the existing impediment to a marriage is presented , the official of the Register Office shall suspend the registration of the marriage and, in the event of a dispute, advise the intended spouses on their right to apply for the court to refute the declaration. In such a case the marriage shall be registered only after the intended spouses submit to the Register Office the res judicata court judgement on the refutation of the declaration on the impediments to the marriage as ill-founded.

4.          Where the court decides to refute the declaration on the impediments to the marriage as unfounded , after the formation of the marriage the intended spouses shall have a right, within a year of the day on which the courtís judgement became res judicata, to claim damages from the person who submitted the declaration on impediments to the marriage, except in cases where the declaration was presented by the parents of one of the spouses or a public prosecutor.

 

Article 3.23. Proof of marriage

1.          The Register Office that has registered a marriage shall issue a Certificate of Marriage.

2.          The proof of marriage shall be the record of the marriage and the Certificate of Marriage issued on the basis of the record.

 

Article 3.24. Formation of religious marriages in the procedure established by the Church (confessions)

1.          A religious marriage is formed in accordance with the procedures established by the internal law (canons) of the respective religion.

2.          The formation of a marriage in accordance with the procedures established by the Church (confessions) shall entail the same legal consequences as those entailed by the formation of a marriage in the Register Office provided that:

1)                     the conditions laid down in Articles 3.12 to 3.17 hereof have been satisfied;

2)                     the marriage has been formed according to the procedures established by the canons of a religious organisation registered in and recognised by the Republic of Lithuania;

3)                     the formation of a marriage in the procedure established by the Church (confessions) has been recorded at the Register Office in the procedure provided for herein.

 

Article 3.25. Official records of marriages formed in the procedure established by the Church (confessions)

Marriages formed according to the procedure established by the Church (confessions) shall be entered in the official records in accordance with Article 3.304 hereof.

 

SECTION FOUR

LEGAL EFFECTS  OF MARRIAGE

 

Article 3.26. Equality of spouses

1.          Having contracted a marriage, the spouses acquire the rights and duties defined in this Book.

2.          Spouses shall have equal rights and equal civil liability in respect of each other and their children in matters related to the formation, duration and termination of their marriage.

3.          Spouses may not waive, by mutual agreement, their rights or extinguish their duties that arise from a marriage.

 

Article 3.27. The duty of spouses to support each other

1.          Spouses must be loyal to and respect each other, they must support each other morally and financially and contribute toward the common needs of the family or the needs of the other spouse in proportion to their respective capabilities.

2.          Where due to objective reasons one of the spouses is unable to make a sufficient contribution toward the common needs of the family, the other spouse must do that in accordance with his or her abilities.

 

Article 3.28. Creation of family relations

By contracting a marriage the spouses create family relations as a basis for their life together.

 

Article 3.29. Passive and active capacity of spouses

Marriage shall not restrict the passive and active capacity of spouses, nevertheless the possibility of the spouses to exercise certain rights may be restricted by the contract of marriage or the mandatory rules hereof.

 

Article 3.30. Duties of the spouses in respect to their children

Spouses must maintain and bring up their children of minor age, care for their education and health, ensure the childís right to personal life, inviolability of his or her personality and freedom, the childís property, social and other rights laid down in the domestic and international law.

 

Article 3.31. The surnames of the spouses

Both spouses shall have the right to retain their respective surnames or to choose the surname of the other spouse as their common surname or to have a double surname by adjoining the surname of the other spouse to oneís own surname.

 

Article 3.32. Representation

1.          Any of the spouses may authorise the other to represent him and act on his behalf.

2.          Where certain acts require the consent of the other spouse, but for any objective reason the other spouse is unable to give such a consent, the court may, upon the interested spouseís request, give the interested spouse permission to perform the act. Before giving the permission, the court must satisfy itself that the consent of the other spouse is really unobtainable, while the permission will serve the interests of the family. The courtís permission is valid only for the act specified in the courtís order to be performed in the specified period of time. If the court finds that the spouseís actions are contrary to the interests of the family or of the children of minor age, it may amend or revoke its permission on the request of the state institution for the protection of the childís rights or the public prosecutor. The amendments or revocation of the permission shall be effective only from the date of the courtís order to that effect. On the day of its adoption, such an order of the court must be sent to the Chamber of Notaries Public or, if the permission is related to the disposition of immovable property, to the public register.

3.          If a spouse has acted on behalf of the other spouse without his or her permission or the permission of the court, such acts and their consequences shall be subject to the rules of Book Six regulating the management of the other spouseís affairs.

 

Article 3.33. Disputes of spouses relating to the performance of their duties or

exercise of their rights

1.          Where the spouses are unable to agree as to the performance of their duties or the exercise of their rights, either of them shall have a right to apply to the court for the resolution of their dispute.

2.          In its efforts to resolve the dispute the court shall take measures for the reconciliation of the spouses.

3.          The court must decide on the dispute of the spouses by taking account of the interests of their children of minor age and the interests of the family as a whole.

 

Article 3.34. Temporary Restriction of the property rights of a spouse

1.          Where one of the spouses is in serious breach of his or her marital duties provided for in this Book hereof and poses a threat to the property interests of the family by his or her acts, the other spouse shall have a right to apply to the court for an order prohibiting the other spouse from disposing of their community property without the consent of the other spouse. The prohibition may not be valid for more than two years.

2.          Transactions entered into by a spouse without the consent of the other spouse, which should have been obtained, may be annulled under an action brought by the other spouse provided the third party involved in the transaction was in bad faith. An action may be brought within a year of the date on which the spouse acquired or should have acquired knowledge of the transaction.

 

Article 3.35. Rights and duties of the spouses in the household

1.          Neither spouse may, without the consent of the other spouse, alienate, pledge or lease movable property used in the household or encumber the right to it in any other way.

2.          The movable property serving for the use of the household shall include household utensils, furniture, except for works of art, collections or home libraries.

3.          A spouse having neither consented to nor ratified such a transaction may apply to have it annulled except in cases where the transaction was by onerous title and the third party was in good faith.

 

Article 3.36. The rights and duties of spouses in respect  of the dwelling considered to be Family Property

1.          Where the spouses live in a rented dwelling under a lease agreement, the spouse in whose name the dwelling is rented may not, without a written consent of the other spouse, terminate the lease agreement before its term, sublease it or transfer the rights under the lease agreement. The spouse having neither consented nor ratified such an act may apply to have it annulled.

2.          A spouse who is the sole owner of the family dwelling may not, without a written consent of the other spouse, alienate, pledge or lease this dwelling. The spouse having neither consented to nor ratified such an act may apply to have it annulled provided that the disputed premises have registered in the public register as a family asset.

3.          The rules of paragraph 1 and 2 shall be applied also in cases of usufruct (i. e. the right of using and receiving the profits, products or fruits of property that belongs to another) and contract of use.

 

CHAPTER III

NULLITY OF MARRIAGE

 

Article 3.37. The grounds and procedures for declaring Marriage Null and Void

1.          A marriage may be declared null and void if the conditions for the formation of a valid marriage set out in Articles 3.12 to 3.17 hereof have been violated as well as on the grounds provided for in paragraph 3 Article 3.21, Articles 3.39 and 3.40 hereof.

2.          A marriage may be annulled only by the court.

3.          A marriage that the court declares to be null and void shall be void ab initio.

4.          Having pronounced a marriage null and void, the court must send a copy of its judgement to the Register Office where the marriage was registered within three business days of its effective date.

 

Article 3.38. Persons entitled to petition for a decree of nullity on the grounds of violation of the requirements for the formation of marriage.

1.          A marriage formed in violation of the conditions set for the formation of marriage in Articles 3.16 and 3.17 hereof may be declared null and void on the petition of  spouse who was ignorant of the impediments to the marriage, a public prosecutor or any other person whose rights and lawful interests were violated by the marriage.

2.          A marriage formed in violation of the requirement set in Article 3.14 hereof may be declared null and void on the petition of a minor spouse, his or her parents, guardians or curators, public institutions for the protection of the childís rights or a public prosecutor. After the minor spouse attains the age of 18, he or she shall be the only person who may petition for a decree of nullity.

3.          A marriage formed in violation of the requirement set in Article 3.15 hereof may be declared null and void on the petition of the guardian of the spouse lacking capacity to marry, a public prosecutor or any other person whose rights and lawful interests have been violated by the marriage.

4.          A marriage formed in violation of the requirement set in Article 3.13 hereof may be declared null and void on the petition of the spouse who had failed to express his or her free will at the time of the marriage or a public prosecutor. Where the who failed to express his free will is a minor, the nullity of the marriage may be sought by his or her parents, guardians, curators or a State institution for the protection of the childís rights.

5.          A judgement for the nullity of marriage on the grounds referred to in paragraph 3 Article 3.21 hereof may be sought by the party to the marriage who by the time of marriage had not been informed of the other partyís illness.

 

Article 3.39. Nullity of a fictitious (Ďshamí) marriage

A marriage formed fictitiously without the true intention of creating a legal family relationship may be declared null and void on the petition of either spouse or a public prosecutor.

 

Article 3.40. Declaring a marriage null and void due to the lack of free will

1.          A marriage may be declared null and void if a spouse can prove that at the time of marriage he or she was incapable of understanding the true meaning of his or her actions or of being in charge of them of being in charge of them.

2.          Nullity of marriage may be sought by a spouse if he or she entered into the marriage under threat, duress or fraud.

3.                      A spouse who gave consent to the marriage in consequence of an essential mistake may seek the nullity of the marriage. The mistake is presumed to be essential if it is a mistake about the circumstances related to the other party the knowledge of which would have been a sufficient reason for the party not to enter into the marriage. The mistake is presumed to be essential if it is about:

1)                     the health condition or the sexual abnormality of a party which makes the usual family life impossible;

2)         the grave crime committed by the other party.

 

Article 3.41. Bars to the nullity of marriage

1.          The court may refuse to declare a marriage null and void if the circumstances which had constituted an impediment to the marriage hereunder disappeared during the proceedings of the case.

2.          The court may refuse to declare a marriage contracted by a minor persons null and void  if the nullity of the marriage were contrary to the interests of the minor children of the minor spouse or spouses.

3.          A marriage may not be pronounced to be a fictitious marriage if prior to the petition for nullity the spouses had created family relations or had cohabited for over a year from the date of marriage or had given birth to or were expecting their own child.

4.          A marriage may not be declared null and void after divorce, except where the marriage had been contracted in violation of the monogamy principle or within the prohibited degrees of relationship (Articles 3.16 and 3.13).

5.          A marriage which was contracted without one of the spouses expressing his free will may not be pronounced null and void if, after the formation of the marriage or after the knowledge of the circumstances giving a sufficient ground for pronouncing it null and void, the spouses lived together for over a year or they have given birth to or are expecting their own baby.

 

Article 3.42. Statutes  of limitation

1.          A spouse who entered into a marriage under the age of 18 may petition for the nullity of the marriage within a year of the date of his or her attaining full age.

2.          Petition for the nullity of a marriage contracted without a free and voluntary consent may be presented within a year of the date on which the circumstances constituting the grounds for pronouncing the marriage null and void disappeared or became known.

3.          Petition for the nullity of a fictitious marriage may be presented within a year of the date on which the marriage was contracted. A public prosecutor may petition for the nullity of a marriage under Article 3.39 hereof within five years of the date on which the marriage was contracted.

4.          Petition for the nullity of a marriage on other grounds shall be subject to no limitations.

 

Article 3.43. Separation of spouses and maintenance order

1.          In an effort to protect the interests of one of the spouses, the court may, circumstances permitting, order the spouses to separate pending the proceedings on the nullity of their marriage.

2.          In pronouncing a marriage null and void, the court must decide as to the maintenance of the children and the spouse in good faith as well as to make a residence order in respect of the children.

 

Article 3.44. Extinguishment of the right to petition

1.          The right to petition for the nullity of a marriage may not be devolved by succession or any other way.

2.          After the death of one of the parties to a marriage, a public prosecutor may no longer initiate proceedings for the nullity of the marriage.

 

Article 3.45. Legal effects of marriage declared null and void

1.          Any children born of a marriage subsequently decreed void by the court shall be treated as born within marriage.

2.          Where both the spouses were in good faith, i. e. did not and could not know about the impediments to their marriage, the legal consequences of their marriage, although it has been declared null and void, shall be the same as those of a valid marriage except for the right of succession. Evidence of the good faith of the spouses must be indicated in the judgement of the court.

 

Article 3.46. Legal consequences of nullity where one or both spouses  were in bad faith

1.          With a null and void marriage where only one of the parties was in good faith, the party in good faith shall be entitled to all the rights a spouse is entitled to by virtue of a valid marriage.

2.          With a null and void marriage where both the parties were in bad faith, they lose all the rights and duties spouses have by virtue of a valid marriage. Each of them shall have a right to recover their own property including the gifts to the other party.

 

Article 3.47. Rights of the spouse in good faith

1.          If in need of maintenance, the spouse in good faith shall have a right to petition for maintenance from the spouse in bad faith for a period not exceeding three years.

2.          The amount of the maintenance shall be at the discretion of the court having regard to the financial position of both the parties. The court may make an order for periodical monthly payments or one payment of a lump sum. If the financial position of one of the parties changes, the interested party may start apply for the increase, decrease or termination of maintenance.

3.          An order for maintenance to the spouse in good faith terminates on the remarriage of the payee or at the end of the three-year period during which maintenance was paid.

 

Article 3.48. Mandatory participation of guardianship and care institutions

Where one or both spouses are of minor age or have been declared by the court lacking legal capacity, guardianship and care institutions or the public institution for the protection of the childís rights must attend the proceedings for the nullity of the marriage of such persons and give their opinion on whether the nullity of the marriage may prejudice the rights and interests of such persons or their children.

 

CHAPTER IV

DISSOLUTION OF MARRIAGE

 

SECTION ONE

FUNDAMENTALS OF DISSOLUTION OF MARRIAGE

 

Article 3.49. Cases of dissolution of marriage

1.       A marriage is dissolved by the death of one of the spouses or by termination by the operation of law.

2.       A marriage may be dissolved by the mutual consent of the spouses, on the application of one of the spouses or through the fault of a spouse (spouses).

 

Article 3.50. Dissolution of marriage by the death of one of the spouses

1.          A marriage is dissolved by the death or a court judgement of presumption of death of one of the spouses.

2.          Where one of the spouses is presumed dead, the marriage shall be considered dissolved from the date on which the court judgement becomes res judicata  or from date specified therein.

3.          If the spouse who has been presumed to be dead by a court judgement turns up, the marriage may be renewed by the mutual application of the spouses to be presented, after the annulment of the court judgement of presumption of death, to the Register Office that registered the dissolution of marriage.

4.          A marriage may not be renewed if the other spouse had remarried or there are impediments under Articles 3.12 to 3.17 hereof.

 

SECTION TWO

DIVORCE BY THE MUTUAL CONSENT OF THE SPOUSES

 

Article 3.51. Conditions for divorce

1.          A marriage may be dissolved by the mutual consent of the spouses provided all the following conditions have been satisfied:

1)                     over a year has elapsed from the commencement of the marriage;

2)                     the spouses have made a contract in respect of the consequences of their divorce (property adjustment, maintenance payments for the children, etc.);

3)                     both the spouses have full active legal capacity.

2.          In cases provided for in this Article divorce shall be obtained under simplified procedures.

 

Article 3.52. Application for divorce

1.       A mutual application of the spouses for divorce shall be presented to the court of the district where one of the spouses resides.

2.       The application must be accompanied by the contract as to the consequences of the divorce.

3.       The application must contain reasons why, in the opinion of the spouses, their marriage has broken down.

 

Article 3.53. Divorce proceedings

1.          The court grants a judgement of divorce if it is satisfied that the marriage has broken down irretrievably. A marriage shall be considered to have broken down irretrievably if the spouses no longer live together and it is not likely they will live together again.

2.          An irretrievable breakdown of a marriage is presumed if the spouses have been separated form board and bed for over a year.

3.          While granting a divorce decree, the court shall approve the contract of the spouses as to the consequences of divorce providing for the maintenance payments for the children of minor age and each other, the residence of their minor children, their participation in the education of their children and their other property rights and duties. The content of the contract shall be incorporated in the judgement of divorce. In case there is an essential change in the circumstances (illness of one of the former spouses, incapacity for work, etc.), the former spouses or one of them may petition the court to reconsider the terms and conditions of their contract as to the consequences of divorce.

4.          Where the contract as to the consequences of divorce is not consistent with the public order or is an essential violation of the rights and lawful interests of the minor children of the spouses or of one of the spouses, the court shall not approve the contract and shall suspend the divorce proceedings until the spouses have made a new contract. If the spouses fail to comply with the directions of the court within six months of the suspension of the proceedings, the court shall not resume the consideration of the application for divorce.

 

Article 3.54. Reconciliation of spouses

1.       The court must take measures to encourage the reconciliation of the spouses.

2.       At the request of one of the spouses or on its own initiative the court may provide for an up to a six-month-long reconciliation period. At the end of the reconciliation period the divorce proceedings shall be resumed at the request of one of the parties.

3.       If neither of the spouses petitions for divorce within a year of the beginning of the reconciliation period, the court does not resume the divorce proceedings.

4.       Where the spouses have lived apart for over a year or the reconciliation period is essentially contrary to the interests of one of the spouses or those of their children, or where both the spouses require a substantive consideration of their case, the court shall not set any reconciliation period.

 

SECTION THREE

DIVORCE ON THE APPLICATION OF ONE OF THE SPOUSES

 

Article 3.55. Conditions for obtaining divorce

1.          A marriage may be dissolved on the application of one of the spouses filed with the court of the district where the applicant resides, if at least one of the following conditions are satisfied;

1)                     the spouses have been separated for over a year;

2)                     after the formation of the marriage one of the spouses has been declared legally incapacitated by the court;

3)                     one of the spouses has been declared missing by the court;

4)                     one of the spouses has been serving a term of imprisonment for over a year for the commission of a non-premeditated crime.

2.          On behalf of the spouse lacking legal capacity the application for divorce may be filed by his or her guardian, a public prosecutor or a guardianship and care institution.

 

Article 3.56. The content of the application

1.          The application must contain the indication of one of the grounds for divorce under paragraph 1 Article 3.55 hereof.

2.          The application must also indicate how the applicant is going to perform his or her obligations toward the other spouse and their minor children.

3.          The application must also contain the data provided for in the Code of Civil Procedure.

 

Article 3.57. Examination of the application

1.       A spouseís application for divorce shall be examined in a simplified procedure.

2.       Where divorce proceedings are commenced on the application of one of the spouses, the reconciliation measures referred to in Article 3.54 shall not be applied.

3.       The court having regard to the age of one of the spouses, the duration of marriage, the interests of the minor children of the family may refuse to grant a divorce decree if the divorce may cause significant harm to the property and non-property interests of one of the spouses or their children.

4.       The other spouse or his or her guardian shall have a right to declare that the marriage has broken down through the applicantís fault and demand that the court grant divorce on the basis of the applicantís fault. If the court considers the declaration to be well grounded , divorce shall be granted on the basis of the fault of the spouse who initiated the divorce proceedings (Article 3.60 hereof).

 

Article 3.58. Mandatory participation of guardianship and care institutions

Where one of the spouses lacks legal capacity, a guardianship and care institution must present its opinion to the court concerning the guarantees of the interests of the spouse lacking legal capacity on divorce.

 

Article 3.59. Matters to be resolved by the court in granting divorce

In granting a divorce the court must resolve matters relating to the residence and maintenance of the minor children, the maintenance of one of the spouses, adjustment of the community property of the spouses, except in cases where the property has been adjusted by the mutual agreement of the spouses certified in the notarial procedure.

 

SECTION FOUR

DIVORCE ON THE BASIS OF THE FAULT OF ONE OR BOTH OF THE SPOUSES

 

Article 3.60. Conditions for obtaining divorce

1.          A spouse may apply for divorce on the grounds provided for in this Section where the marriage has broken down through the fault of the other spouse.

2.          The fault of a spouse for the breakdown of the marriage shall be established if he or she has seriously breached the duties under this Book hereof, which is the reason why their matrimonial life has become impossible.

3.          A marriage shall be presumed to have broken down through the fault of the other spouse where he or she has been convicted of a pre-meditated crime or has committed adultery or is violent toward the other spouse or the other members of the family or has deserted the family and has not been caring for it for over a year.

 

Article 3.61. Both spouses at fault

1.       The respondent in a divorce suit may argue against his or her fault and adduce facts to prove that the other spouse is at fault for the breakdown of the marriage.

2.       The court having regard to the circumstances of the case may declare that both parties are at fault for the breakdown of the marriage.

3.       A divorce based on the fault of both spouses shall have the same consequences as the dissolution of marriage by the mutual consent of the spouses (Articles 3.51 to 3.54).

 

Article 3.62. Divorce procedure

1.          A divorce on the basis of the fault of one of the spouses shall be granted by the court under contentious procedure.

2.          At the request of one of the spouses divorce proceedings shall be held in a closed hearing.

3.          Divorce proceedings shall be subject, mutatis mutandis, to Article 3.59 hereof.

 

Article 3.63. Omission of the specific causes of a divorce from the court judgement

At the request of both spouses the court, in granting a divorce, shall omit the specific facts evidencing the fault of one or both the spouses for the dissolution of the marriage from the judgement and merely indicate that the marriage has broken down through the fault of one or both the spouses.

 

Article 3.64. Conciliation of spouses

1.          The court must take measures to achieve a reconciliation of the spouses.

2.          The court must suggest that the spouses reach an amicable settlement of their respective property interests, the maintenance and education of their children as well as other consequences of their divorce. If the spouses reach an agreement, paragraphs 3 and 4 of Article 3.53 hereof shall be applied.

3.          The court shall apply measures provided for in paragraph 2 and 3 of Article 3.54 hereof, except in cases where the application of those provisions may be detrimental to the interests of the applicant or the minor children of the spouses.

 

Article 3.65. Provisional protection measures

1.          The court having regard to the interests of the children of the spouses as well as the interests of one of the spouses may make orders for provisional protection measures pending the outcome of the divorce suit.

2.          The court may make the following orders for provisional protection measures:

1)                     circumstances permitting, order one of the spouses to live separately;

2)                      determine the residence of the minor children with one of the parents;

3)                     demand for one of the spouses not to interfere with the use of certain property by the other spouse;

4)                     issue a maintenance order in favour of the minor children or the other spouse;

5)                     seize property until its ownership by one of the spouses is determined or in order to enforce maintenance payments;

6)                     seize the property of one of the spouses the value of which could be used to compensate for the litigation costs to the other spouse;

7)                     prohibit one of the spouses from having contact with his or her minor children or appearing in certain places.

 

SECTION FIVE

LEGAL EFFECTS OF DIVORCE

 

Article 3.66. The moment of the dissolution of marriage

1.       A marriage shall be considered to be dissolved on the date when the divorce judgement becomes res judicata.

2.       The court must send a copy of the divorce judgement to the local Register Office for the registration of the divorce within three business days of the date of res judicta of the judgement .

 

Article 3.67. Consequences of divorce to the property interests of the spouses

1.          Legal consequences of divorce to the property interests of the spouses shall be produced from the moment of the commencement of divorce proceedings.

2.          A spouse other than the one determined to be at fault for the breakdown of the marriage may ask the court to rule that the legal consequences of divorce to the interests of the spouses shall be produced from the day of their actual separation.

 

Article 3.68. Invalidation of transactions made after the commencement of the divorce proceedings

Transactions related to the joint property of the spouses made by one of the spouses after the commencement of the divorce proceedings may be invalidated by the court in an action brought by the other spouse provided the other spouse can prove that the transaction was made with the aim of prejudicing his or her interests while the third party was in bad faith.

 

Article 3.69. Surnames of the former spouses

1.       On divorce, a spouse may retain his or her married surname or the surname he or she had before the marriage.

2.       Where a marriage is dissolved on the basis of the fault of one of the spouses, the court may, at the request of the other spouse, prohibit the spouse at fault from retaining his or her married surname, except in cases where the spouses have children.

 

Article 3.70. Legal consequences of a divorce on the basis of the fault of one of the spouses

1.          Where a divorce is granted on the basis of the fault of one of the spouses, the spouse at fault shall lose the rights of a divorcee under the law or under the marriage contract including the right to maintenance.

2.          The other spouse may demand from the spouse responsible for the breakdown of the marriage damages related to the divorce as well as compensation for non-pecuniary damage done by the divorce. This provision shall not be applied where both spouses are responsible for the breakdown of the marriage.

3.          At the request of the other spouse the spouse at fault for the breakdown of the marriage shall return the gifts received from him or her except for the wedding ring unless the marriage contract provides otherwise.

4.          Where both spouses are responsible for the breakdown of the marriage, both of them shall have a right to demand the return of the immovable gifts given to each other unless more than ten years have elapsed from the gift contract and the immovable property has been transferred to third parties.

 

Article 3.71. Retention of the right to use the matrimonial dwelling

1.       Where the matrimonial dwelling is owned by one of the spouses, the court may make a usufruct order and allow the other spouse to remain in the matrimonial dwelling if their minor children live with him or her.

2.       The usufruct order shall be valid until the child (children) attain majority.

3.       Where the matrimonial dwelling is rented, the court may award the rights of the lessee to the spouse that remains to live with their minor children or that lacks capacity for work and may evict the other spouse if he or she has been ordered to live separately.

 

Article 3.72. Mutual maintenance of the former spouses

1.          The court when making a divorce judgement shall also make a maintenance order in favour of the spouse in need of maintenance unless the matters of maintenance are settled in the agreement of the spouses concerning the consequences of divorce. A spouse shall have no right to maintenance if his or her assets or income are sufficient to fully support him or her.

2.          Maintenance shall be presumed to be necessary if he or she is bringing up a minor child of the marriage or is incapacitated for employment because of his or her age or state of health.

3.          A spouse that was not able to obtain any qualifications for work (complete his or her studies) because of the marriage, common interests of the family or the need to care for the children, shall have a right to demand from the former spouse to cover the costs related to the completion of his or her studies or retraining.

4.          The spouse responsible for the breakdown of the marriage shall have no right to maintenance.

5.          While making a maintenance order and deciding on its amount, the court shall take into account the duration of the marriage, the need for maintenance, the assets owned by the former spouses, their state of health, age, capacity for employment, the possibility of the unemployed spouse of finding employment and other important circumstances.

6.          The amount of maintenance shall be reduced, made temporary or refused if one of the following circumstances exist:

1)         the marriage lasted for a period not exceeding a year;

2)         the spouse entitled to maintenance has committed a crime against the other spouse or his or her next of kin;

3)         the spouse entitled to maintenance has created his or her difficult financial situation through his or her own irresponsible acts;

4)         the spouse requesting maintenance did not contribute to the growth of their community assets or wilfully prejudiced the interests of the other spouse or the family during the marriage.

7.                      The court may demand from the spouse obliged to provide maintenance to the other spouse to produce an adequate guarantee of fulfilment of this obligation.

8.                      The court may make maintenance orders for a lump sum or periodical (monthly) payments or property adjustment.

9.                      Where divorce is based on the application of one of the spouses because of the legal incompetence of the other spouse, the applicant spouse must cover the treatment and care expenses of the former incompetent spouse unless the expenses are covered from state social security funds.

10.                  The maintenance order shall be the basis for the forced pledge of the respondentís assets. If the former spouse defaults on his or her obligation to pay maintenance, his or her assets may be used to make payments in the procedure laid down by the law.

11.                  Where the maintenance order is for periodical payments, a significant change in the circumstances referred to in paragraph 5 of this Article may warrant the application of either of the former spouses for an increase, reduction or termination of maintenance payments. Periodical payments shall be for the life of the creditor and shall be inflation-indexed annually in the procedure laid down by the Government.

12.                  After the death of the spouse obliged to pay maintenance, the obligation to pay maintenance is devolved on his or her successors to the extent of his or her estate irrespective of the way the estate is accepted.

13.   Where the payee dies or remarries, the maintenance payment shall be terminated. On the payeeís death, the right to demand arrears of the maintenance payments shall pass to the payeeís successors. The dissolution of the new marriage shall create a right to apply for the renewal of maintenance payments provided the payee is bringing up a child by his or her former spouse or is caring for a disabled child by his or her former spouse. In all other cases the duty of the subsequent spouse to maintain the payee shall take precedence over that of the first former spouse.

 

CHAPTER V

SEPARATION

 

Article 3.73. Application for separation

1.          One of the spouses may apply to the court for the approval of the separation if due to certain circumstances, which may not depend on the other spouse, their life together has become intolerable (impossible) or can seriously prejudice the interests of their minor children or the spouses are no longer interested in living together.

2.          Both spouses may jointly apply to the court for the approval of their separation if they have made a contract concerning the consequences of their separation providing for the residence, maintenance and education of their minor children as well as for the adjustment of their property and mutual maintenance.

 

Article 3.74. Counter-applications

1.       The defendant in a separation case shall have a right to lodge a counter-claim for divorce.

2.       The defendant in a divorce case shall have a right to lodge a counter-claim for separation.

3.       Where one of the spouses seeks a divorce while the other spouse applies for separation, the court may make a divorce order on the basis of the fault of one or both of the spouses or it may make a separation order.

 

Article 3.75. Separation procedure

1.          The court shall examine applications for separation in the contentious procedure.

2.          Having regard to the interests of the minor children of the spouses as well as to the interests of one of the spouses the court shall take measures to foster a reconciliation of the spouses (Article 3.54 hereof).

3.          The court may order provisional protection measures referred to in Article 3.65 hereof.

 

Article 3.76. Matters to be resolved in making a separation judgement

1.       When making a separation judgement, the court must designate the spouse with whom the children are to live, the maintenance of the children and the involvement of the separated father (mother) in the education of their children.

2.       Having regard to important circumstances, the court may make an order for the residence of the children with other persons or in a guardianship or care institution.

3.       In deciding which of the spouses should have a right to stay in their matrimonial dwelling, first consideration must be given to the spouse with whom the minor children are to live or to the spouse lacking capacity for work.

4.       Where the spouses have made a contract as to the consequences of separation (paragraph 2 Article 3.73), the court shall approve the contract provided that it is consistent with public order, the rights and lawful interests of their minor children or one of the spouses. Having approved the  contract , the court shall incorporate its content in the separation  judgement.

5.       If there is a serious change in the circumstances significant for the matters related to the separation of the spouses, either spouse may seek the reconsideration of the former judgement and a different resolution of matters referred to in paragraph 1 of this Article based on the change in the circumstances.

 

Article 3.77. Legal consequences  of separation

1.          When the court makes a separation judgement, it releases the spouses form the obligation to live together, but the other rights and duties of the spouses shall not be extinguished except in cases provided for herein.

2.          Separation shall not produce any effects on the rights and duties of he spouses in respect of their minor children except in cases provided for herein.

3.          When making a separation judgement, the court must always make a property adjustment order unless those matters are settled in the marriage contract of the spouses.

4.          The legal consequences of separation for the property interests of the spouses shall be produced from the initiation of the separation suit. However, the spouse other than the one responsible, in the opinion of the court, for the separation may ask the court to make the legal consequences of separation retroactive to the date on which the spouses ceased to live together.

5.          If one of the separated spouses dies, the survivor shall retain all the rights of a surviving spouse under the law, except where the surviving spouse has been declared by the court to be at fault for the separation. The same rule shall apply where the court makes a separation order on the basis of the joint application of the spouses unless the marriage contract of the spouses stipulates otherwise. The surviving spouse, however, shall lose the right of succession to the estate of the deceased spouse.

 

Article 3.78. Mutual maintenance of the spouses

1.          When issuing a separation order, the court may order the spouse at fault for the separation to pay maintenance to the other spouse in need of it unless the maintenance matters are settled in the agreement of the spouses.

2.          When making a maintenance order and determining the amount, the court must take into consideration the duration of the marriage, the need for maintenance, the financial position of both spouses, their state of health, age as well as their earning capacity, the unemployed spouseís chances of finding employment and other important circumstances.

3.          The court may rule that the spouse under the obligation to pay maintenance to other spouse must provide a  security that the obligation will be fulfilled.

4.          Maintenance may be ordered as a lump sum of a certain amount or periodical  monthly payments or property transfer.

5.          The maintenance order shall be the basis for the statutory pledge of the respondentís assets. If a spouse defaults on his or her obligation to provide maintenance, his or her assets may be used to make payments in the procedure laid down by the law.

6.          Where maintenance has been ordered in the form of periodical payments, a fundamental change in the circumstances referred to in paragraph 2 of this Article, either spouse may claim an increase, reduction or termination of the payments. Periodical payments shall be indexed annually in the procedure laid down by the Government.

 

Article 3.79. End of a separation

1.       A separation shall end when the spouses start living together again and their life together proves their intention to live together permanently. A separation shall end when, on the joint application of the spouses, the court makes a judgement to end the separation, which revokes its former separation order.

2.       On the resumption of their life together, the spouses shall remain separate as to property until they make a new marriage contract and set a new matrimonial regime.

3.       The end of separation shall produce effects for third parties only if the spouses make a new marriage contract and register it in the procedure provided for in Article 3.103 hereof.

4.       Where the spouses are separated for more than a year after the date when the court judgement became res judicata, either spouse may seek divorce on the basis provided for in point 1 paragraph 1 Article 3.55 hereof.

 

Article 3.80. Mandatory participation of the state institution for the protection of the childís rights

Where the spouses have children of minor age, the state institution for the protection of the childís rights must participate in the proceedings and present its conclusion on the possible violation of the childrenís rights in taking decisions on separation matters.

 

PART III

RIGHTS AND DUTIES OF THE SPOUSES IN PROPERTY

 

CHAPTER VI

LEGAL REGIME OF PROPERTY OF SPOUSES

 

SECTION ONE

GENERAL PROVISIONS

 

Article 3.81. Kinds of legal regime  of property of spouses

1.          There shall be statutory and contractual legal regime of the property of spouses.

2.           The statutory legal regime of the property of spouses shall be governed by Articles 3.87 to 3.100 hereof.

3.          The contractual regime of the property of spouses shall be governed by Articles 3.101 to 3.108 hereof.

 

Article 3.82. Application of Statutory Legal Regime of Property

Where the spouses have not made a marriage contract, their property shall be subject to the statutory regime.

 

Article 3.83. The right of the spouses to fix their matrimonial regime in their marriage contract

1.       When making a marriage contract, the spouses shall have a right to determine their matrimonial regime as they think fit.

2.       Provisions of a marriage contract inconsistent with good morality or public order shall be null and void.

 

Article 3.84. Family assets

1.          Any assets referred to in paragraph 2 of this Article owned by either spouse before or during the marriage shall be considered to be family assets. Family assets may be used only to meet the needs of the family.

2.          The following assets owned by one or both spouses shall be family assets:

1)                     the family dwelling ;

2)                     movables intended for the use in the household including furniture.

3.          Family assets shall include the right to use the family dwelling .

4.          Assets referred to in paragraphs 2 and 3 of this Article shall acquire the legal status of family assets on the date of the registration of marriage, but the spouses may use this fact in respect of third parties in good faith only if an immovable is registered in the public register as a family asset.

 

Article 3.85. Legal regime of  family assets

1.       Assets referred to in paragraph 2 Article 3.84 hereof, which are the personal property of one of the spouses, may be used, managed or disposed of only in accordance with this Article.

2.       The spouse who is the owner of an immovable considered to be a  family asset, may transfer ownership rights to it, charge it or encumber the rights to it in any other way only with the written consent of the other spouse. Where the spouses have children of minor age, transactions in respect of an immovable considered to be a family asset require a judicial authorisation.

3.       Family assets may not be used against a creditor if the creditor knew or should have known that the transaction is not related to meeting the needs of the family and is contrary to the interests of the family.

4.       The legal regime of family assets or the composition of the family assets may not be changed by an agreement of the spouses.

 

Article 3.86. End of the legal regime of family assets

1.          The legal regime of family assets shall end on divorce, declaration of the nullity of marriage or separation of the spouses.

2.          The court may award the right to use family assets or a certain part of them (usufruct) to the spouse with whom the minor children of the marriage will live. The usufruct shall be valid until the children attain majority.

3.          Where the spouses rent a family dwelling , the court may transfer the lessee rights to the spouse with whom the children will live or the spouse who lacks earning capacity.

4.          The court may award the chattels intended for the use in the household to the spouse who stays in the family dwelling together with the minor children.

 

SECTION TWO

STATUTORY LEGAL REGIME OF PROPERTY OF SPOUSES

 

Article 3.87. Definition of the fundamentals of the  legal regime of property

1.          Under the legal  regime the property acquired by the spouses after the commencement of their marriage shall be their joint community property.

2.          The property of spouses constitute their joint community property until their separation as to property or until the extinguishment of the joint community property rights in some other way.

 

Article 3.88. Joint community property

1.       Joint community property shall be:

1)                  property acquired after the formation of marriage in the name of one or both of the spouses;

2)                  the income and fruits collected from the individual property of a spouse;

3)                  income derived from the joint activities of the spouses, and income derived from the activities of one of the spouses except for the funds required for that spouseís occupation;

4)                  an enterprise and the income derived from the operations of the enterprise or any other business provided that the spouses took up such business activities after the commencement of the marriage. Where the enterprise was owned by one of the spouses before the marriage, the joint community property shall include the income derived from the operations of the enterprise or any other business and the increase of the enterprise (business) after the formation of the marriage;

5)                  income from the work or intellectual activities, dividends, pensions, benefits or other payments collected by both spouses or one of them after the commencement of the marriage except for payments received for specific purposes (such as damages for moral or corporal injury, support, allowance or other benefits paid specifically to only one of the spouses, etc.).

2.       All property shall be presumed to be joint community property unless it is established that it is the individual property of one of them.

3.       Both spouses must be registered as the owners of the joint community property in the public register. Where the property is registered in the name of one of the spouses, it shall be considered to be joint community property provided it is registered as joint community property.

4.       On divorce, a spouse shall have the right to claim one half of the funds accumulated in a private pension fund from the joint financial sources of the spouses.

 

Article 3.89. Individual property of the spouses

1.          The  individual property of each spouse shall consist of:

1)                     property acquired separately by each spouse before the commencement of the marriage;

2)         property devolved to a spouse by succession or gift during the marriage unless the will or donation agreement indicates that the property is devolved as joint community property;

3)         a spouseís personas effects (footwear, clothing, instruments required for the spouseís occupation);

4)         the rights to intellectual or industrial property except for the income derived from those rights;

5)         funds and chattels required for the personal business of one of the spouses other than the funds and chattels used in the business conducted jointly by both spouses;

6)         damages and compensation payments received by one of the spouses for non-pecuniary  damage or personal injury, payments as financial aid for specific purposes and other benefits related specifically to only one of the spouses, rights that may not be transferred;

6)         property acquired with the separate funds or proceeds from the sale of a separate property with the express intention of the spouse at the time of the acquisition to acquire it as a separate property.

2.                      The fact of property being a separate individual property of one of the spouses may be proved only by written documents (evidence) except in cases where the law allows to accept the testimony of witnesses or the nature of the property is sufficient proof of it being a separate property of one of the spouses.

3.                      Individual property that one of the spouses transfers to the temporary possession of the other spouse to meet the latterís personal needs shall remain a separate property of the transferor.

 

Article 3.90. Declaration of individual  property to be joint community property

1.          The court may declare a individual property of one of the spouses to be joint community property if it is established that during the marriage the property was fundamentally improved with the joint funds of the spouses or with the funds of or due to the work of the other spouse (capital investments, reconstruction, etc.).

2.          Where a spouse used both his or her separate funds and the funds owned jointly with the other spouse to acquire a property for his or her own personal needs, the court may declare the property so acquired to be joint community property provided the value of the joint community funds used to acquire such property exceeded the value of the separate funds of the spouse so expended.

 

Article 3.91. Enterprise (farm, business)

Property required for the operation of an enterprise (farm, business) established by one of the spouses after the formation of the marriage as well as the income of the enterprise (farm, business) established by one of the spouses before the formation of the marriage other than the funds required for the operation of the spouseís personal enterprise (farm, business) shall be joint community property provided that property exists at the moment of divorce.

 

Article 3.92. Management, use and disposal of joint community property

1.          Joint community property shall be used, managed and disposed of by the mutual agreement of the spouses.

2.          The consent of the other spouse shall not be required for:

1)                     the acceptance or rejection of succession to estate;

2)                     the refusal to enter a contract;

3)                     urgent measures to protect the community property;

4)                     bringing an action to protect the joint community property;

5)         bringing an action to protect oneís rights related to community property or oneís personal rights unrelated to the interests of the family.

3.                      When making transactions a spouse shall be presumed to have the consent of the other spouse except in cases where entering into a transaction requires the written consent of the other spouse. In exceptional cases where delay would cause serious damage to the interests of the family while the other spouse is unable to express his or her will because of illness or some other objective reasons, a spouse may enter into a transaction without the consent of the other spouse in accordance with the procedure laid down in Paragraph 2 Article 3.32 hereof.

4.                      Transactions related to the disposal or encumbrance of a jointly co-owned immovable or the rights to it, also transactions on the alienation of a jointly co-owned enterprise or securities or the encumbrance of the rights to them may be made only by both spouses except where one of the spouses has been given the power of attorney by the other spouse to enter into such a transaction.

5.                      Each spouse shall have a right to open a bank account in his or her name without the consent of the other spouse and to dispose freely of the funds on the account unless those funds have been made joint community property.

6.                      Where a transaction has been made without the consent of the other spouse, that other spouse may ratify the transaction within a month of the date when he or she learnt about the transaction. Before its ratification the other party may withdraw from the transaction. If the other spouse does not ratify the transaction within a month, the transaction shall be declared as having been made without the consent of the other spouse. If the other party to the transaction knew that the person with whom it was entering into the transaction was married, it can withdraw from the transaction only if the spouse misrepresented the existence of the other spouseís consent.

 

Article 3.93. Consent to enter into a transaction

1.          Where a spouse does not give the other spouse consent required to enter into a transaction, the interested spouse may seek leave to enter into the transaction in court.

2.          The court shall award leave to enter into a transaction only if the interested spouse can prove that the transaction is necessary to meet the needs of the family or the needs of their jointly co-owned business.

 

Article 3.94. Power of attorney to manage property

1.       A spouse may give a power of attorney to the other spouse to manage, use and dispose of their joint community property.

2.       Where one of the spouses is away or cannot participate in the management of the community property for important reasons, the other spouse may apply to the court to be authorised to manage such property alone.

3.       If the spouse is negligent or unreasonable in managing joint community property alone, he or she shall be liable for the losses sustained through his or her fault and shall compensate for them against his or her separate property.

4.       Management of property shall be governed mutatis mutandis by the rules of Book Four hereof regulating the management of property owned by another person.

 

Article 3.95. Challenging the competence of managing joint community property

1.          Where a spouse is unable to manage community property or does that in a way that incurs losses, the other spouse may apply to have the court remove the spouse from managing the property. The court shall grant the requested removal if the applicant can prove that it is necessary to ensure the needs of the family or those of their joint business.

2.          Once the grounds for removal disappear, the removed spouse may request the court to allow him or her to manage the community property again.

 

Article 3.96. Avoidance of transactions

1.          Transactions made without the consent of the other spouse and not ratified by him or her later, may be avoided in an action brought by that spouse within a year of the date when he or she learnt about the transaction provided it is proved that the other party to the transaction was in good faith.

2.          Transactions that should have been made with a written consent of the other spouse or could only have been made jointly by both the spouses (Paragraph 4 Article 3.92 hereof) may be declared void irrespective of the other party to the transaction being in good or bad faith except in cases where one or both of the spouses used fraud in making the transaction or made misrepresentations to institutions in charge of public registers or to any other institutions or officials. In such cases the transaction may be declared void only if the other party to the transaction was in bad faith.

 

Article 3.97. Management of the  individual property of a spouse

1.       A spouse shall use, manage or dispose of his or her  individual  property at his or her own discretion. Management, use or disposal of property defined herein as family assets shall be subject to the restrictions laid down in this Book.

2.       Where a spouse manages his or her  individual  property in such a negligent or unreasonable way that it endangers the interests of the family because the property may be lost or substantially reduced, the other spouse shall have a right to seek in court the appointment of an administrator for the management of such property. The court may appoint the applicant to be the administrator.

3.       After the circumstances which caused the appointment of an administrator disappear, either spouse may apply to the court to have the appointment of an administrator revoked.

4.       A spouse may grant a power of attorney to the other spouse to manage his or her individual property. In such a case the mutual relations of the spouses in property shall be governed by the rules of Book Two hereof on the regulation of legal agency relations.

5.       Where a spouse cannot manage alone his or her individual property and contribute to the needs of the household due an illness or any other objective reason, the other spouse shall have a right to use the individual funds and assets of the spouse incapable of managing alone his or her property for the needs of the household. The rule shall not be applied in cases where the spouses are separated or an administrator has been appointed for the individual property of the spouse unable to manage it alone and make a contribution towards meeting the needs of the household.

 

Article 3.98. Right to compensation

1.          Where the value of the joint community property is increased by adding the  individual property of one of the spouses, the spouse the addition of whose property has increased the value of the joint community property shall be entitled to compensation against the community property.

2.          A spouse shall be entitled to compensation also in cases when his or her individual funds have been used for the acquisition of joint community property.

3.          Each of the spouses must compensate for the reduction of the joint community property if he or she has used it for purposes unrelated to the duties referred to in Article 3.109 hereof, except in cases where he or she can prove that the property has been used to satisfy the needs of the family.

4.          The compensations referred to in this Article shall be paid when the spouseís joint co-ownership ends.

 

Article 3.99. Gifts of the spouses

1.       Spouses shall have a right to make gifts of assets to each other in accordance with the rules of Book Six hereof, regulating gift agreements.

2.       An agreement on a gift of an immovable shall give rise to legal consequences for the creditors of the donor only if the agreement has been recorded in a public register.

3.       The beneficiary spouse shall be liable to the creditors of the donor for the obligations of the donor that existed at the time the gift agreement was made to the extent of the value of the gift. Where the gift is lost through no fault of the beneficiary, his or her liability for the obligations of the donor shall be extinguished.

 

Article 3.100. Grounds for termination of joint co-ownership of the spouses

Joint co-ownership rights of the spouses shall end on:

1)                        the death of one of the spouses;

2)                        presumption of the death of one of the spouses or the judicial declaration of one of the spouses as missing;

3)                        the declaration of the nullity of the marriage;

4)                        divorce;

5)                        separation;

6)                        the judicial partitioning of the community property;

7)                        the change of the legal  regime of property in accordance with the mutual agreement of the spouses;

8)                        in other cases laid down by the law.

 

SECTION THREE

CONTRACTUAL LEGAL REGIME OF PROPERTY OF SPOUSES

 

Article 3.101. Marriage  contract

A marriage  contract shall mean an agreement of the spouses defining their property rights and duties during the marriage as well as on divorce or separation.

 

Article 3.102. Making a marriage  contract

1.          A marriage contract may be made before the registration of the marriage (pre-nuptial contract) or at any time after the registration of the marriage (post-nuptial contract ).

2.          A marriage contract  made before the registration of the marriage shall come into effect on the day of the registration of the marriage. A post-nuptial contract shall come into force on the date on which it is made unless the agreement stipulates otherwise.

3.          A minor may enter into a marriage settlement only after the registration of the marriage.

4.          A spouse declared by the court as having limited active capacity may enter into a marriage contract only with a written consent of his or her custodian . If the custodian refuses to give consent, the spouse may apply to the court for leave to enter into a marriage contract .

 

Article 3.103. The form of a marriage contract

1.       A marriage contract  must be entered into before the notary public. .

2.       A marriage contract as well as its subsequent amendments must be registered in the register of marriage contracts maintained by mortgage institutions in the procedure laid down by the rules of the register. A marriage contract may be amendment only with leave of the court. In no case may the amendments of a marriage contract be retroactive.

3.       A marriage contract and its amendments may be used against third parties provided the settlement and its amendments have been registered in the register of marriage contracts . This rule shall not apply if at the time of the transaction the third parties knew of the marriage contract and its amendments.

 

Article 3.104. Content of a marriage contract

1.          Spouses shall have a right to stipulate in the marriage contract  that:

1)                     property acquired both before and during the marriage shall be the individual  property of each spouse;

2)                      individual property acquired by a spouse before the marriage shall become joint community property after the registration of the marriage;

3)                     property acquired during the marriage shall be joint community property.

2.          In their marriage contract the spouses may stipulate that one of the matrimonial legal regimes referred to in Paragraph 1 of his Article shall be applied to their entire property or only to its certain part or to specified chattels.

3.          In their marriage contract the spouses may define a matrimonial legal regime both in respect of their existing and future property.

4.          A marriage contract may contain the stipulation of rights and duties related to the management of property, mutual maintenance, participation in the provision for family needs and expenses as well as the procedure for partitioning property on divorce and other matters related to the spouseís mutual relations in property.

5.          The rights and duties of the spouses provided for in their marriage contract may be limited in time, or the emergence or termination of rights and duties may be related to the fulfilment or omission of a certain condition stipulated in the marriage contract.

 

Article 3.105. Nullity of conditions in a marriage contract

Conditions stipulated in a marriage contract shall be null and void if they:

1)         contradict the mandatory legislative rules, good morality and public order;

2)         change the legal regime in respect of the  individual property of one of the spouses or in respect of their joint community property (Articles 3.88 and 3.89) where the matrimonial legal  regime the spouses have chosen provides for joint community property;

3)         prejudice the principle of equal parts in joint community property enshrined in Article 3.117 hereof;

4)         restrict the passive or active legal capacity  of the spouses;

5)         regulate the personal relations of the spouses unrelated to property;

6)         establish or change the personal rights and duties of the spouses towards their children;

7)         limit or annul the right of one (or both) of the spouses to maintenance;

8)         limit or annul the right of one (or both) of the spouses to bring legal proceedings in court;

9)         change the procedure and conditions of succession in property.

 

Article 3.106. Amendments and termination of a marriage contract

1.          A marriage contract may be amended or terminated by the mutual agreement of the spouses at any time in the same form as that laid down for its formation.

2.          An amendment to a marriage contract or its termination may be used against third parties provided the amendment or termination of the marriage contract has been registered in the register of marriage contracts settlements. This rule shall not be applied if at the time of the transaction the third parties knew of the amendment or termination of the marriage contract .

3.       At the request of one of the spouses a marriage contract may be amended or terminated by the judgement of the court on the grounds provided for in Book Six hereof for the amendment or termination of a marriage contract.

4.       The creditors of one or both of the spouses whose rights have been prejudiced by the amendment or termination of the marriage contract may, within a year of becoming aware of the amendment or termination, challenge in court such an amendment or termination and require the restoration of their rights.

 

Article 3.107. Termination of a marriage contract

A marriage contract shall terminate on divorce or on separation except in respect of the duties which under the agreement remain in force on divorce or separation. The termination of a marriage contract shall be registered in the register of marriage contracts.

 

Article 3.108. Nullity of a marriage contract

1.          In addition to the grounds provided for in Article 3.105 hereof, a marriage contract may be declared null and void, wholly or in part, on the grounds for the nullity of transactions provided for in Book One hereof.

2.          The court may declare a marriage contract null and void at the request of one of the spouses if the agreement is in serious breach of the principle of equality or is especially unfavourable for one of the spouses.

3.          The creditors of one or both of the spouses shall have a right to demand that the agreement be declared null and void because it is fictitious.

 

CHAPTER VII

CIVIL LIABILITY OF SPOUSES FOR OBLIGATIONS IN PROPERTY

 

Article 3.109. Obligations  discharged from community property

1.       The following obligations shall be discharged from the community property of spouses:

1)                  obligations related to the encumbrances of property acquired in co-ownership that existed at the time of acquisition or were created later;

2)                  obligations related to the costs of managing community property;

3)                  obligations related to the maintenance of the household;

4)                   obligations related to legal expenses where the action is related to community property or the interests of the family;

5)                  obligations arising from transactions made by one of the spouses with the consent of the other spouse or ratified by the latter subsequently as well as obligations arising from transactions for which no consent of the other spouse was required provided that the transactions were made in the interests of the family;

6)                  joint and several obligations of the spouses.

2.       Either spouse shall have a right to enter into transactions necessary to maintain the family and to secure the upbringing and education of the children. Both spouses shall be jointly and severally liable for the obligations arising from such transactions whatever their matrimonial regime may be except in cases where the price of the transactions is clearly too high and unreasonable.

3.       Joint and several liability of the spouses shall not be created where one of the spouses takes a loan or acquires goods under credit purchase , which is not necessary for the needs of the family, without the consent of the other spouse.

4.       In creating and discharging obligations related to the needs of the family the spouses shall be as prudent and careful as in creating and discharging their own personal obligations .

 

Article 3.110. Liability of spouses for obligations created before the registration of marriage

1.          Community property may not be used to discharge the obligations of spouses created before the registration of marriage except those charged against the relevant spouseís share in community property.

2.          The claims of the spousesí common creditors to be discharged from community property shall take precedence over the claims of the separate creditors of each spouse. This rule shall not apply to mortgage creditors.

 

Article 3.111. Obligations arising from gift agreements or succession

Where one of the spouses receives a gift or comes into inheritance, the obligations arising therefrom may not be paid from community property unless the gift or the inheritance has been received as community property.

 

Article 3.112. Liability for the obligations of one of the spouses

1.       Claims arising from the transactions made after the registration of marriage by one of the spouses without the consent of the other spouse may be discharged  from community property if the individual property of the spouse is not sufficient to meet the claims of the creditors.

2.       Legal expenses shall be discharged from the individual property of a spouse if the lawsuit is not related to community property or the interests of the family.

 

Article 3.113. Enforcement against the individual property of spouses

Where the community property is not sufficient to meet the joint and several claims of creditors, the claims shall be discharged met from the individual property of the spouses.

 

Article 3.114. Separation of the liability of spouses

1.          If the marriage contract stipulates that property acquired both before and during marriage is to be treated as the  individual property of one and the other spouse, the spouses shall be liable for their obligations only by their individual properties. In such cases the spouses shall be jointly and severally liable for their joint obligations and the obligations in the interests of the family.

Spouses shall not be held to be each otherís guarantors or surety in obligations arising in the management or disposal of property that is a  individual property of one and the other spouse.

 

Article 3.115. Entitlement to compensation

1.          The spouse whose fines for breaches of law or damages incurred through his or her actions have been paid from the joint community property shall be obliged to compensate for the reduction of the joint community property.

2.          If a transaction was made to meet the personal needs of only one of the spouses by using joint community property, that spouse shall be obliged to compensate for the reduction of the joint community property.

 

CHAPTER VIII

DIVISION OF JOINT COMMUNITY PROPERTY

 

Article 3.116. Ways of division

1.       On the application of one of the spouses or their creditors, joint community property may be divided by the mutual agreement of the spouses or by a court judgement during marriage and on divorce or separation.

2.       The rules of this Chapter shall be applicable where the spouses have not made a marriage contract.

 

Article 3.117. Shares of the spouses in joint community property

1.          The shares of the spouses in joint community property shall be presumed to be equal.

2.          Departure from the principle of the equality of the shares of the spouses in joint community property shall be permitted only in cases provided for herein.

3.          Where the value of the property awarded by the court to one of the spouses is greater than his or her share in the joint community property, that spouse shall be obliged to pay a compensation to the other spouse. Upon the presentation of an adequate security for this liability, the court may defer the payment of the compensation for no longer than two years.

4.          On the death of one of the spouses, his or her share in the joint community property shall be inherited on the heirs according to the rules of Book Five hereof.

 

Article 3.118. Balance of property

1.       Before partitioning the joint community property of the spouses, first the community property and the respective  individual property of the spouses shall be established.

2.       The community property shall first be used to pay (award) the debts that have fallen due and are payable from this property. Where the time limit for meeting the liabilities from the community property has not expired or the liabilities are disputed, the value of the community property to be partitioned shall be reduced by the amount of these liabilities (debts).

3.       After establishing the individual property of the spouses and deducing their personal debts from it, a balance sheet of compensations shall be drawn up indicating the amounts one or the other spouse must pay by way of compensating for the community property or receive from the community property.

4.       Where the balance of community property is positive it is divided equally between the spouses, except in cases provided for herein.

 

Article 3.119. Assessment of the value of property

The value of the community property to be partitioned shall be established at its market value on the date of the termination of the joint community property of the spouses.

 

Article 3.120. Property not to be partitioned

1.          Property to be partitioned shall not include chattels intended for the needs of the minor children of the marriage or the spousesí clothing, personal effects, personal property interests and non-property rights related only to that particular spouse.

2.          Property intended to meet the needs of the minor children referred to in Paragraph 1 shall go, without deducing any compensations, to the spouse with whom the minor children are to live, while the remaining part of the property of personal nature goes to one and the other spouse.

 

Article 3.121. Attribution of  individual property to joint community property

1.       By the mutual consent of the spouses, property defined as the  individual property of the spouses in the marriage contract  may be attributed to the joint community property subject to partitioning.

2.       Arrangements referred to in Paragraph 1 shall be prohibited if they can cause damage to the creditors of the spouse. Where due to such arrangements the claims of the creditor cannot be fully covered from the  individual property of a spouse, the debt shall be charged against the spouseís share in the community property.

 

Article 3.122. Security for the claims to a share in the community property

At the request of one of the spouses or a spouseís creditors, the court may seize the joint community property of the spouses or to appoint an administrator for the property if that is necessary to protect the interests of the spouses in the community property or the rights of their creditors. These measures shall not be applicable where the other spouse submits an adequate security for the claims of the spouse requesting the seizure of the property or the appointment of an administrator or for the claims of the creditors.

 

Article 3.123. Departure from the principle of the equality of the shares of the spouses in the community property

1.          Having regard to the interests of the minor children, the health state or the financial position of one of the spouses or other important circumstances, the court may depart from the principle of the equality of the spouseís shares in the community property and award one of the spouses a greater portion of the property. These criteria must also be taken into consideration by the court in deciding on the way of partitioning community property.

2.          The share of the spouse obliged to make maintenance payments to the other spouse may be reduced by the amount of the maintenance if it is to be paid by a lump sum or certain property given in payment.

3.          Where, less than a year before the institution of the action for the partitioning of the property, one of the spouses reduced the value of the community property without the consent of the other spouse by donating some of it or by using it to increase his or her own  individual property, the portion of this spouse in the community property may be reduced while establishing the respective portions of the spouses in the community property by the value of the lost community property.

4.          The share of one of the spouses in the community property may also be reduced by the amount of income unrealised due to the spouseís negligence or because he or she concealed the income from the family and used it for his or her personal needs. The period for which such unrealised income is calculated should not exceed five years before the institution of the lawsuit for the division of property.

 

Article 3.124. Division of property by the court judgement without divorce

Where one of the spouses has been declared incapable or of limited active capacity or where one of the spouses manages community property in a loss-making way or by his or her actions jeopardises the joint community property of the spouses or the interests of the family or without any justified reason fails to contribute to the needs of the family, the other spouse shall have a right to bring an action seeking a division of the property.

 

Article 3.125. Registration of division of property

The agreement of the parties or the judgement of the court under which the joint community property of the spouses is divided must be registered with the mortgage office that has registered the marriage contract or the division of property by making a relevant entry in the register of marriage contracts .

 

Article 3.126. Guarantees of the rights of the creditors

1.       The creditors of one or both of the spouses shall have a right to participate as third parties in the lawsuit for the division of joint community property and present their own individual claims.

2.       In his or her application the spouse who institutes proceedings for the division of property must indicate the creditors of one or both of the spouses he or she is aware of and notify the creditors of the institution of proceedings by sending them a copy of the application.

 

Article 3.127. Property to be divided

1.          The court shall divide the property the spouses acquired as joint community property before the institution of the proceedings or before the day the court hands down its judgement.

2.          On the application of one of the spouses the court may decide to divide only the property acquired before the separation of the spouses.

3.          If possible, the property is divided in kind having regard to its value and the share of each spouse in the community property. If the property cannot be divided in kind, it is awarded in kind to one of the spouses, who is ordered to compensate for the other spouseís share in money. The decision on the way the property is to be divided and the actual division of property in kind is taken having regard to the interests of the minor children, the state of health and the financial situation of one of the spouses as well as to other important circumstances.

 

Article 3.128. Mutual obligations of spouses after the division of property without divorce

1.       The spouse on whose application the property has been divided must, to the extent of his or her possibilities, contribute to the maintenance of the household and the upbringing and education of the children.

2.       Where for objective reasons the other spouse cannot contribute to the maintenance of the household or the upbringing and education of the children, all such expenses must be covered by the spouse on whose application the property has been divided.

3.       When dividing the property, the court may award an amount of money from one spouse to the other to be used for the repayment of the outstanding debts of the marriage to the third parties.

 

Article 3.129. Limitations

Claims for the division of joint community property, except for immovables, may be made within five years of the date of the separation of the spouses.

 

PART IV

MUTUAL RIGHTS AND DUTIES OF CHILDREN AND PARENTS

 

CHAPTER IX

CONSANGUINITY AND AFFINITY

 

Article 3.130. Concept of consanguinity

1.          Consanguinity is relationship by blood of persons descended from the same stock or common ancestor.

2.          Consanguinity shall give rise to legal consequences only in cases provided for by the law.

3.          Relationship between adopted children (and their descendants) and their adoptive parents (and their kindred) shall be treated as consanguinity.

 

Article 3.131. Lines of consanguinity

Two lines of consanguinity Ė direct and collateral consanguinity Ė shall be distinguished.

 

Article 3.132. Direct consanguinity

1.          Direct consanguinity is that which subsists between the ancestor and the descendants in the direct line from one of the other (great-grandparents, grandparents, parents, children, grandchildren, great-grandchildren, etc.)

2.          Consanguinity upward from the descendant to the ancestor is the direct ascending line (grandchildren, children, parents, grandparents, etc.)

3.          Consanguinity downward from the ancestor to the descendant is the direct descending line (grandparents, parents, children, grandchildren, etc.)

 

Article 3.133. Collateral consanguinity

Collateral consanguinity is that which subsists between persons who have the same ancestors, but who do not descend one from the other ( siblings,  cousins, uncles or aunts, nephews and nieces, etc.)

 

Article 3.134. Degree of consanguinity

1.       A degree of relationship is measured by the number of related births other than the birth of the ancestor (ancestors).

2.       Only the degrees of relationship laid down by the law shall give rise to legal consequences.

Article 3.135. Close relatives

Close relatives  shall embrace persons related by  direct consanguinity up to the second degree of consanguinity  inclusively (parents and children, grandparents and grandchildren) and persons related in the second degree of kinship by collateral consanguinity (siblings).

 

Article 3.136. Affinity

1.       Affinity is the connection, in consequence of a marriage, between one of the spouses and the kindred of the other spouse (stepson, stepdaughter, stepfather, stepmother, father-in-law, mother-in-law, daughter-in-law, etc.) as well as between the kindred of both spouses (the husbandís brother or sister and the wifeís brother or sister, the husbandís father and mother and the wifeís father or mother, etc.)

2.       Affinity shall give rise to legal consequences only in cases provided for by the law.

 

CHAPTER X

FILIATION

 

SECTION ONE

GENERAL BASIS FOR FILIATION

 

Article 3.137. Legitimate filiation of a Child

1.          Legitimate filiation of a child shall be confirmed in the procedure laid down in Articles 3.138 to 3.140 hereof.

2.          The mutual rights and duties of the child and his or her parents shall be based on the legitimate filiation of the child.

3.          A childís legitimate filiation from the parents shall be confirmed from the date of birth and shall create the respective rights and duties laid down by the law from that date.

 

Article 3.138. Proof of legitimate filiation

The parents of a child shall be proved by the record of birth in the Registrarís Office and by the certificate of birth issued on the basis thereof.

 

Article 3.139. Maternal affiliation

1.       A woman shall be entered as a childís mother in the records of a Registrarís Office on the basis of the certificate of the childís birth issued by a hospital.

2.       Where the child is born not in a hospital, the certificate of the childís birth shall be issued by a medical centre that makes a postnatal examination of the motherís and the babyís health.

3.       If the child is born not in a hospital and no postnatal examination of the motherís and the babyís health is made, the certificate of the childís birth shall be issued by a consulting commission of doctors in the procedure laid down by the Government. According to such a certificate the mother of the baby is the woman in respect of whom the consulting commission of doctors have no doubt that it was she who gave birth to the baby.

4.       If the record of the childís birth contains no data on the childís mother or if the maternity of the child has been successfully contested, the childís mother may be established by the court in an action filed by the woman who considers herself to be the childís mother, by the adult child, by the childís father or guardian/curator or by the state institution for the protection of the childís rights.

 

Article 3.140. Paternal affiliation

1.          Where a married woman gives birth to a baby, although the baby may have been conceived before the marriage, the man identified as the spouse of the babyís mother in the marriage record or the marriage certificate issued on the basis thereof shall be identified as the babyís father in the record of the babyís birth.

2.          Where a child is born within three hundred days of the date of separation or the annulment of the marriage or divorce or the death of the husband, the ex-spouse of the mother shall be recognised as the childís father.

3.          Where a mother who contracted a new marriage within less than three hundred days of the dissolution of her previous marriage gives birth to a baby, the new spouse of the mother shall be considered to be the babyís father.

4.          Where an unmarried woman gives birth to a baby after more than three hundred days have elapsed from the dissolution of her previous marriage, the man who has acknowledged his paternity in the procedure established in this Book or whose paternity has been established by a judicial judgement may be identified as the babyís father in the record of the babyís birth.

5.          Where a divorced mother gives birth to a baby within less than three hundred days of the divorce, the babyís mother, her ex-husband and the man who acknowledges his paternity of the child shall have a right to file a joint application seeking that the man who acknowledges his paternity of the child be identified as the babyís father. After the court approves such a joint application, the man who acknowledges his paternity of the child rather than the ex-husband of the babyís mother shall be entered in the record as the babyís father.

 

SECTION TWO

ACKNOWLEDGEMENT OF PATERNITY

 

Article 3.141. Conditions for the acknowledgement of paternity

1.       Where the record of the babyís birth contains no data on the babyís father, the paternity of the baby may be determined on the basis of the application of the man who considers himself father of the baby.

2.       Where a baby is born to a married mother or the baby is born within less than three hundred days of the dissolution of the marriage, the paternity of the baby may be determined on the basis of an application provided the paternity of the present or former spouse of the mother has been successfully contested.

3.       If the adjudication of paternity on the basis of an application acknowledging paternity has been contested, determination of paternity on another application acknowledging paternity is inadmissible.

4.        There shall be no period of limitation applicable to acknowledgement of paternity.

 

Article 3.142. Procedure for acknowledging paternity

1.          The man considering himself the father of a child shall have a right to file an application of a standard form certified by a notary public with the Registrarís Office seeking to be recognised as the father of the child.

2.          Where the child has attained the age of 10, the Registrarís Office may accept an application for the recognition of the childís paternity only with a written consent of the child.

3.          Where the man acknowledging his paternity of a child is a minor, the filing of an application for the recognition of paternity with the Registrarís Office requires the written consent of the minorís parents, guardians or curators or care institutions. If the parents, guardians or curators or care institutions refuse to give their consent, such a leave may be handed down by the court at the minorís request.

 

Article 3.143. Acknowledging paternity before the childís birth

1.       If there are circumstances that will bar the filing of an application acknowledging the paternity of a child after the birth of the baby, the man considering himself the father of the child conceived but not yet born may file a joint application with the childís mother for the recognition of his paternity for the period of pregnancy with the Registrarís Office of the district where the childís mother resides.

2.       The application acknowledging the paternity of a child before the childís birth shall be accompanied with the certificate of pregnancy issued by a medical centre.

3.       Where before the childís birth the childís mother marries the man who has filed an application acknowledging his paternity of the child, or another man, the paternity of the child may not be confirmed after the birth of the child on the basis of that application.

4.       Where the childís mother or the man who has filed an application acknowledging the paternity of the child before the birth of the child withdraws the application before the birth of the child has been recorded with the Registrarís Office, the childís paternity on the basis of that application shall not be registered.

 

Article 3.144. Acknowledging paternity without the consent of the childís mother

1.          Where the childís mother is dead, incompetent or cannot, for other reasons, file a joint application with the childís father for the recognition of his paternity, or the parents or guardian/curator of the man who considers himself the father of the child, but who is a minor or of limited legal competence, refuse to recognise his paternity or the child of 10 or over does not give his or her written consent, the application acknowledging paternity may be considered a valid basis for the registration of paternity if the court approves the application.

2.          In examining an application acknowledging paternity where the childís mother is dead, incompetent or cannot, for other reasons, file a joint application with the man acknowledging to be the childís father, the court must require that the childís father adduce evidence corroborating his paternity of the child.

3.          The application acknowledging the paternity of a child may not be registered without the consent of the child who is of full age.

 

Article 3.145. Examination of the application for the approval of the acknowledgement of paternity

1.          The court shall examine applications for the approval of the acknowledgement of paternity in a simplified procedure.

2.          The res judicata judgement on the approval of the application acknowledging a childís paternity shall be sent to the Registrarís Office that has registered the birth of the child within three business days.

3.          Where the application for the approval of the acknowledgement of a childís paternity is contested by the parents or guardians/curators  of the minor or the person of limited legal capacity who considers himself the father of the child, the application shall be submitted to the court to be examined by contentious proceedings

 

SECTION THREE

PATERNITY AFFILIATION

 

Article 3.146. Conditions for  paternity affiliation

1.     Where the child is born out of wedlock, and in the absence of paternal acknowledgement, paternity affiliation may be determined by the court.

2. Where a child is born to a married woman or the childís paternity has been ascertained on the basis of an application acknowledging the childís paternity,  paternity affiliation is possible only after a successful contesting of the data concerning the childís father contained in the record of the childís birth.

3. The paternity of a dead person may be ascertained only if the person had offspring.

 

Article 3.147. Persons entitled to petition for Paternity Affiliation

1.          Where a child is born  out of wedlock or the data on the father contained in the record of the childís birth have been successfully contested , an  action for the paternity affiliation may be filed by the man considering himself the father of the child. The child and the childís mother shall act as defendants in such an action.

2.          If a childís father refuses to acknowledge his paternity by an application for the approval of his acknowledgement of the childís paternity or if a childís father is dead, the action for paternity affiliation may be filed by the childís mother or the child after having attained full  active capacity or the childís guardian or curator or the state institution for the protection of the childís rights or the descendants of a child who is dead.

3.          Having determined a childís paternity, the court shall send its res judicata judgement to the Registrarís Office that has registered the childís birth within three business days.

 

Article 3.148. Grounds for paternity affiliation

1.       Grounds for paternity affiliation shall be scientific evidence (conclusions of expert examinations on consanguinity determination) and other means of proof provided for in the Code of Civil Procedure. If the parties refuse to undergo expert examination, the childís paternity may be adjudicated on the basis of facts that have a sufficient evidential value, such as the childís motherís and the putative fatherís life together, their joint participation in the upbringing and maintenance of the child and other evidence.

2.       If the defendant refuses expert examination, the court having regard to the circumstances of the case may treat such a refusal as proof of the defendantís paternity of the child.

 

SECTION FOUR

CONTESTING PATERNITY (MATERNITY)

 

Article 3.149. Conditions for contesting paternity (maternity)

1.          Data on the mother or father of a child contained in the record of the childís birth may be contested only in court.

2.          Data on the mother or father of a child entered in the record of the childís birth on the basis of a res judicata judicial decision may not be contested.

 

Article 3.150. Grounds for contesting paternity (maternity)

1.       The paternity of a child born to a married couple or within three hundred days of the dissolution of marriage may be contested only by proving that the person cannot be the father of the child.

2.       The maternity or paternity of a child adjudicated on the basis of an application acknowledging parentage may be contested by proving that the childís mother or father not the biological parent of the child.

 

Article 3.151. Persons entitled to file an action for contesting paternity (maternity)

1.          Actions for contesting paternity or maternity may be filed by the person entered in the record of the childís birth as the childís mother or father, or the person who, although not recorded as the childís mother or father in the record of the childís birth, considers himself the mother or the father of the child, or the parents or guardians/ curators of the minor entered in the record of the childís birth as the childís father, or the child on attaining majority, or a minor on attaining full active capacity.

2.          Where the childís mother or father is legally incapable or of limited active capacity, an action  for contesting maternity or paternity may be filed by his or her guardians or curators.

3.          An action for contesting the paternity of a man who is dead may be filed by his descendants if the person recorded as the childís father died within the limitation period provided for in Article 3.152 hereof.

 

Article 3.152. Limitation period for proceedings

1.       The limitation period for filing a suit for contesting paternity (maternity) shall be one year as from the day when the plaintiff became aware of the disputed data in the record of the childís birth or of certain circumstances giving reason to believe that the data are not truthful.

2.       Where the persons recorded in the record of the childís birth as a childís mother or father became aware of such a record at the time when they were minors or legally incapable, the one-year limit shall be calculated from the day they attained majority or full active capacity..

3.       The res judicta court judgement on the annulment of paternity (maternity) shall be sent to the Registrarís Office that registered the childís birth within three business days of its effective date.

 

Article 3.153. Mandatory participation of the agency for the protection of the childís rights

In adjudicating paternity or disputes over paternity the participation of the agency for the protection of the childís rights shall be mandatory.

 

SECTION FIVE

ARTIFICIAL INSEMINATION

 

Article 3.154. Legal regulation of artificial insemination

The conditions, mode, procedures of artificial insemination as well as matters related to the paternity (maternity) of a child born from artificial insemination shall be regulated by other laws.

 

CHAPTER XI

PARENTAL RIGHTS AND DUTIES IN RESPECT OF THEIR CHILDREN

 

SECTION ONE

PARENTAL AUTHORITY

 

Article 3.155. Substance of paternal authority

1.          Until they attain majority or emancipation, children shall be cared for by their parents.

2.          Parents shall have a right and a duty to properly educate and bring up their children, care for their health and, having regard to their physical and mental state, to create favourable conditions for their full and harmonious development so that the child should be ready for an independent life in society.

 

Article 3.156. Equality of paternal authority

1.       The father and the mother shall have equal rights and duties in respect of their children.

2.       Parents shall have equal rights and duties by their children irrespective of whether the child was born to a married or unmarried couple, after divorce or judicial nullity of the marriage or separation.

 

Article 3.157. Representation of children

1.          Legally incapable children shall be represented by their parents under the law, except where the parents have been declared legally incapable by a court judgement.

2.          Parents shall represent their children on the presentation of the childís birth certificate.

 

Article 3.158. Authority of minor-aged parents

1.       Minor parents with full active capacity shall have all personal rights and duties in respect of their children.

2.       Minor parents who are legally incapable or of limited active capacity shall have a right to live to together with their child and participate in the childís education. In such cases a guardian/foster person shall be appointed to the child in the procedure provided for in this Book hereof.

3.       On attaining majority or full active capacity, the parents shall acquire all the rights and duties in respect of their children.

 

Article 3.159. Mandatory exercise of parental authority

1.          A fatherís or motherís surrender of the rights and duties by his or her underage children shall be null and void.

2.          Parents shall be jointly and severally responsible for the care and education of their children.

3.          Parental authority may not be used contrary to the interests of the child.

4.          Failure to exercise parental authority shall be subject to legal responsibility under the law.

 

Article 3.160. End of parental authority

1.       Parental rights and duties shall end when the child attains majority or full active capacity.

2.       In certain cases considered in the light of the childís interests, parental authority may be limited on a temporary or permanent basis or the child may be separated from the parents in the procedure laid down in this Book hereof.

 

SECTION TWO

CHILDRENíS RIGHTS AND DUTIES

 

Article 3.161. Childrenís rights

1.          Every child shall have an inalienable right to life, healthy development and a name and surname from birth.

2.          A child shall have a right to know his or her parents unless that prejudices his or her interests or the law provides for otherwise.

3.          A child shall have a right to live with his or her parents, be brought up and cared for in his or her parentsí family, have contact with his or her parents no matter whether the parents live together or separately, have contact with his or her relatives, unless that is prejudicial to the childís interests.

4.          Children shall have no ownership rights to the property of their parents and the parents shall have no ownership rights to the property of their children. Childrenís property rights are defined in this and the other Books hereof.