Ar teismui lengva išlikti tik interpretatoriumi?
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The boundary between interpretation and creation of law is sometimes so subtle and intangible that the court judgments may give rise to discussions about judges having taken the role of lawmakers. This article reveals the concept of ‘precedent’ in the Lithuanian legal system as the influence of the common law has increased on the continental law and ideas of stare decisis have been transferred to the Lithuanian legal system. The start for this was a famous judgment of 28 March 2006 by the Constitutional Court of the Republic of Lithuania, where the court held that courts adopting decisions in cases of corresponding categories are bound by their own decisions in analogous cases; the courts of lower instance are bound by the decisions of the courts of higher instance in cases of the same categories. The notion of precedent has been widely used in the decisions of the Supreme Court of Lithuania. Thus, the term “precedent” has become almost as common as ‘judicial decision’. However, it is important to note that in the jurisprudence of Lithuanian courts and legal literature the notion of precedent has a different meaning than in the common law countries. It is, obviously, due to the different principles of the formation of the two systems: the common law and the continental law. First of all, the term ‘precedent’ used in its general sense in the jurisprudence of the Constitutional Court of the Republic of Lithuania and the Supreme Court of Lithuania has to be construed as a judicial decision which has been made as a result of interpretation of law and which must serve as an example for other courts hearing similar cases. However, it is not a primary source of law. On the other hand, legislators sometimes create such situations (for example, ambiguous terms, excessive use of mandatory rules) and the court is forced to exceed its powers of linguistic interpretation of legal norms and as a result decisions may become similar to ‘precedent’ in the direct meaning of this term. Cases when the court interprets law in an unconventional way seeking to defend the injured party of the dispute at any cost may also be considered ‘precedents’.
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