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Article 6.734. Destruction of records in the medical documents 


1. The provider of personal healthcare services shall destroy the documents indicated in Article 6.733 of this Code within a period of three months after the destruction is demanded (requested) by the patient, with the exception of derogations established by the relevant laws.


2. Paragraph 1 of this Article shall not apply if a request for destruction concerns the stored documents, which may reasonably be considered as having a certain legal or medicinal value to other individuals rather than the patient, as well as in cases where the destruction of the documents is forbidden by the relevant law.

 


Article 6.735. Patient’s right to access the records contained in his medical documents 


1. The patient must, at his request, be provided with all his medical documents, with the exception of cases when this may be harmful to the patient’s health or even endanger his life. In the said cases, the restrictions on the provision of information must be noted in the medical documents of the patient.


2. The patient shall have the right to request that copies of his medical documents be made at the expense of the patient. This right of the patient may be restricted only in accordance with the procedure prescribed by laws. The provider of personal healthcare services must explain to the patient the meaning of the records contained in his medical documents. If the request of the patient is based on reasonable grounds, the doctor must rectify, complete, eliminate, clarify and/or change the inaccurate, non-exhaustive or ambiguous data, or the data which is not related to the diagnosis, treatment or nursing.


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Article 6.736. Provision of information


1. The provider of personal healthcare services may not furnish any other persons with the information on the patient without the latter’s consent and may not give access to the copies of the official documentation referred to in Article 6.733 of this Code. If information is nevertheless provided to other persons, it may be provided in so far as this does not cause any harm to the private life of the patient or any other person. Information on the patient must be furnished if the provision of information is prescribed by legislation.


2. Persons directly participating in the performance of the contract for healthcare services as well as the person who acts as an auxiliary of the person providing healthcare, provided that the information is necessary to the latter to act as an auxiliary, shall not be considered as other persons.


3. This category shall also exclude those persons whose consent in performing the contract for personal healthcare services is required in accordance with Articles 6.729 and 6.744 of this Code. However, where the provider of personal healthcare services, in furnishing information on the patient or giving access to such information or copies of the patient’s documents, may not be considered as complying with the degree of care which is expected from an honest provider of personal healthcare services, the provider of personal healthcare services shall not perform such actions.

 


Article 6.737. Research

The laws shall regulate the conduction of research and the provision of information on the patient for the purpose of research.

 


Article 6.738. Observers 


1. The provider of personal healthcare services shall provide healthcare services without the presence of any other person to the exclusion of the patient himself, unless the patient has expressed his consent to the presence of external observers at the time of provision of healthcare services.


2. Persons whose professional assistance is required for the provision of healthcare services under the contract shall not be considered as other persons within the meaning of paragraph 1 of this Article.

 


Article 6.739. Right to terminate the contract


1. Unless there are important reasons for the termination of the contract for personal healthcare services (failure to follow the instructions of the provider of healthcare services, failure to pay for the services rendered, etc.), the provider of healthcare services may not terminate this contract.


2. The patient shall have the right to terminate the contract at any time.  

 


Article 6.740. Price of the contract

The client (the patient) shall pay to the provider of personal healthcare services the agreed price fixed by the contract, except where the provider of personal healthcare services receives remuneration for his work by law or on some other grounds, as prescribed in the contract.


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Article 6.741. Healthcare institutions

Where personal healthcare services under a contract are provided in a healthcare institution that is not a party to the contract, in all cases liability on the part of the healthcare institution shall also arise, which shall be analogous to liability of the party to the contract.

 


Article 6.742. Prohibition to limit or exclude liability

Liability of the provider of personal healthcare services and, in cases provided for in Article 6.741 of this Code, liability of the healthcare institution, may not be limited or excluded.

 


Article 6.743. Scope of application

Where personal healthcare services are provided in accordance with the general requirements set for the profession of a medical practitioner or the principles of medical ethics/deontology, i.e. not pursuant to the contract for personal healthcare services, the rules of this Section shall apply in so far as this is compatible with the nature of legal relations.


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Article 6.744. Statutory representatives


1. If the patient has not reached the age of sixteen, the obligations of the provider of healthcare services shall be discharged to the parents of the minor or the guardian/curator of the patient.


2. The rule specified in paragraph 1 of this Article shall also apply in cases where the minor, even though he or she has attained the age of sixteen, cannot be considered to be capable of reasonably assessing his interests, to the exclusion of the cases where the patient whose capacity to make reasonable assessment is doubted has reached the age of majority, and the person has been placed under guardianship/curatorship or the guardian/curator has been appointed to him.  In the latter case, the obligations shall be discharged to the guardian/curator.  


3. Where the adult patient cannot be considered to be capable of reasonably assessing his interests, and neither curatorship nor guardianship has been established in respect of such person, all the obligations of the provider of personal healthcare services to the patient shall be discharged to the person who is authorised in writing by the patient to act on behalf of the patient. In the absence of the authorised person or where the authorised person fails to take the necessary actions, the obligations must be discharged to the patient’s spouse or cohabitee/partner, unless the latter refuse that, or in the absence of the patient’s spouse or cohabitee/partner, the obligations shall be discharged to the patient’s parent or to an adult child, or to an adult sibling, or to an adult grandchild, or to a grandparent, unless the latter refuse that. Where the adult patient cannot be considered to be capable of reasonably assessing his interests, his family members shall be requested to give a consent for discharging the obligations of the provider of personal healthcare services to the patient in the following order: the spouse, cohabitee/partner, parents/adoptive parents, adult children, adult siblings, adult grandchildren, grandparents. Upon receipt of the consent of one of the persons, in accordance with the order of priority established in this paragraph, for discharging the obligations of the provider of personal healthcare services to the patient, the consent of other persons shall not be required.


4. The provider of personal healthcare services shall fulfil his obligations to the patient’s statutory representatives as provided for in paragraphs 1 and 2 of this Article, as well as to persons listed in paragraph 3 of this Article, provided that the fulfilment of such obligations complies with the degree of care that is expected from an honest provider of personal healthcare services.


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5. The person established in this Section, to whom the provider of personal healthcare services must discharge his obligations pursuant to paragraph 2 or 3 of this Article, must act with such care which is expected from an honest representative.  In the discharge of his obligations, the person must involve the patient as much as possible.


6. If the patient objects to the provision of healthcare services to him, to which the persons specified in paragraphs 2 and 3 of this Article had already given their consent, such services may be provided only if this is clearly necessary in order to avoid serious harm to the patient.


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Article 6.745. Emergencies

Where, pursuant to Article 6.744 of this Code, instead of the patient’s consent, the consent of the person indicated in the said Article is required for the provision of healthcare services, the services may be provided without the consent of such person provided that there is insufficient time to obtain the consent of the said person in cases where immediate action is needed to save the life of the patient.

 


Article 6.746. Use of human tissues and organs

Human tissues and organs taken from an anonymous person during the provision of personal healthcare services may be used in cases and pursuant to the procedure prescribed by laws.

 


SECTION THREE

PROVISION OF PACKAGE TRAVEL SERVICES

 


Article 6.747. Package travel contract


1. Under a package travel contract, one party (the tour organiser) shall undertake to organise, in return for payment, a package travel for the other party (the tourist), while the tourist shall undertake to pay the tour organiser for the services provided. A package travel shall also include a tour where it is sold by concluding separate contracts on the provision of tourism services between the tourist and the provider(s) of tourism services.


2. For the purposes of this Section, the terms ‘travel retailer’, ‘tour organiser’, ‘package travel’, ‘tourist’ and ‘provider of tourism services’ shall be interpreted as defined in the Law of the Republic of Lithuania on Tourism.


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Article 6.748. Provision of information and documentation prior to conclusion of a package travel contract    


1. When offering its services, the tour organiser must, prior to conclusion of a package travel contract, provide the tourist with clear, comprehensible, and non-misleading written information on paper or on other durable medium, including:  


1) the basic terms and conditions of the package travel and/or the main characteristics of the services provided:


a) the tour destination(s), travel route and durations of stay with dates indicated, and where accommodation is included, the number of included overnight stays;


b) the means of transport, its data and categories, points, dates and time of departure and return, waiting time, locations, and transport connections at stopovers. In cases where the exact time has not yet been set, the tour organiser or the travel retailer shall inform the tourist of an approximate time of departure and return;


c) the place and main characteristics of accommodation, and where it is established in accordance with the relevant rules of the host country, information on the tourist category or class;


d) catering or catering services;


e) visits, guided tour(s) or other services included in the final price of the package travel;


f) whether a particular travel service will be provided to the tourist as a member of a group (in cases where this is not obvious, depending on the circumstances) and, where possible, information on the approximate size of the group;


g) the language in which the services will be provided where the access of the tourist thereto depends on the information supplied orally;


h) the information on whether the package travel is essentially suitable for persons with reduced mobility and, at the request of the tourist, accurate information on the suitability of the package travel depending on the needs of the tourist;


2) the details or contact information (name and surname of the natural person or name, address, telephone number, and e-mail (if any) of the legal person) of the tour organiser and/or the travel retailer;


3) the total cost of the package travel, which includes taxes, any additional contributions, charges and other expenses, or, where those costs cannot be calculated on reasonable grounds before the conclusion of the contract, information on the additional costs which the tourist may still incur;


4) the procedure for paying for the package travel, including the part of the price to be paid in advance, and the payment schedule of the remaining amount;


5) the minimum number of tourists required for the package travel to take place and the time limit referred to in paragraph 2 of Article 6.751 of this Code during which the tourist may terminate the contract if the minimum number of tourists is not obtained for the package travel;


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6) the passport and visa requirements, including the approximate duration of visa issuing process;


7) health-related formalities (information on the epidemiological status of communicable diseases in the country of destination, compulsory and recommended preventive measures, information on the procedure of health insurance);


8) the right of the tourist to terminate the package travel contract in accordance with the procedure laid down in Article 6.750 of this Code;


9) the right of the tourist to withdraw, within fourteen days, in accordance with the procedure laid down in paragraph 1 of Article 6.22810 of this Code, from the package travel contract concluded outside the commercial premises;


10) optional or compulsory insurance to cover the costs arising from the termination of the package travel contract or assistance, including the return of the tourist to the initial point of departure, in the event of an accident, illness or death.


2. The tour organiser shall inform the tourist in a clear, comprehensible and prominent manner in a form preferred by the tourist of any change to the information referred to in paragraph 1 of this Article. The tour organiser shall provide all this information on a durable medium prior to conclusion of the package travel contract.


3. Where the tour organiser fails to provide the tourist with the information referred to in point 3 of paragraph 1 of this Article prior to conclusion of the package travel contract, the tourist shall not be obliged to pay any additional fees, charges or other costs levied by the tour organiser which have not been included in the total cost of the package travel.


4. The tour organiser shall provide the tourist with the necessary receipts, vouchers, tickets, and information on the scheduled time of departure and, where applicable, the duration of registration and scheduled waiting time at stopovers and transport connections and time of arrival in good time before the commencement of the package travel. The documents referred to in this paragraph shall be provided to the tourist in the form in which the package travel contract referred to in Article 6.749 of this Code has been drawn up.


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Article 6.749. Conclusion and content of the package travel contract


1. The package travel contract must be drawn up in a clear and comprehensible language. The contract concluded in a written form must be legible.


2. The tour organiser must include in the package travel contract the information specified in paragraph 1 of Article 6.748 of this Code, as well as clear and comprehensible information on:


1) the special requirements of the tourist which the tour organiser has agreed to satisfy;


2) the fact that the tour organiser is responsible, in accordance with Article 6.754 of this Code, for proper provision of all services under the package travel contract and that the tour organiser must provide necessary assistance to the tourist;


3) the name and contact details of the insurance undertaking which has issued the guarantee of fulfilment of obligations or the name and contact details of the financial institution which has granted the financial guarantee, including their address, and the contact details of the institution authorised by the Government (address, telephone, e-mail);


4) the name, address, telephone, e-mail and, if any, fax number of the local representative, tour manager, contact point of the tour organiser or other service which enables the tourist to contact the tour organiser quickly, communicate with or seek assistance from the tour organiser in the event of difficulties, or to lodge a claim for improper performance of or failure to perform the package travel contract;


5) the obligation of the tourist to inform, without undue delay, the tour organiser, using contact details referred to in point 4 of this paragraph, of any case of improper performance of or failure to perform the package travel contract discovered by the tourist during the package travel;


6) the details to directly contact a minor or a person accompanying a minor in the current location of the minor where, in accordance with the package travel contract which includes accommodation, the minor travels unaccompanied by his parent or other accompanying person;


7) the internal procedure for settlement of claims by the tour organiser, alternative means of dispute settlement applied to a concluded package travel contract, where applicable, the entity for out-of-court consumer dispute resolution dealing with disputes over the performance of the package travel contract, and electronic means of dispute settlement;


8) the right of the tourist to transfer the package travel contract to another tourist in accordance with Article 6.753 of this Code.


3. The information referred to in paragraph 2 of this Article and paragraph 1 of Article 6.748 of this Code shall be considered an integral part of the package travel contract. The information referred to in points 1, 3, 4, 5 and 7 of paragraph 1 of Article 6.748 of this Code may not be altered, unless the parties to the package travel contract expressly agree otherwise.


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4. The standard terms of the package travel contract shall be approved by an institution authorised by the Government.


5. The tour organiser, after the conclusion of the package travel contract or without undue delay thereafter, shall present to the tourist, on a durable medium, a copy of the package travel contract or an acknowledgement of the conclusion of the contract. The tourist shall have the right to request a paper copy of the package travel contract where it has been concluded in the physical presence of the parties.


6. Where the package travel contract is concluded outside the commercial premises, a copy of the package travel contract or an acknowledgement of the conclusion of this contract shall be provided to the tourist on paper or, if the tourist agrees, on another durable medium.


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Article 6.750. Right of the tourist to terminate and withdraw from the package travel contract


1. The tourist shall have the right to terminate the package travel contract at any time before the commencement of the package travel. 


2. Where the tourist terminates the package travel contract, the tour organiser may require the tourist to pay a reasonable fee for the termination of the package travel contract. In cases where a termination fee is laid down in the package travel contract, the amount of the fee shall depend on the time remaining before the commencement of the package travel, the estimated reduction of costs incurred by the tour organiser, and the income which the tour organiser expects to receive or would receive if the package travel was sold to another person. In cases where no termination fee is provided for in the package travel contract, the termination fee must correspond to the price of the package travel, less the amount saved due to the decrease in the costs of the tour organiser and the income resulting from the sale of the package travel to another person.


3. At the request of the tourist, the tour organiser must provide the justification for the amount of the termination fee. In any case, the amount of the termination fee may not exceed the price of the package travel established in the package travel contract.


4. The tourist shall have the right to terminate the package travel contact without paying any termination fee referred to in paragraph 2 of this Article in the following cases:


1) where the tour organiser changes the terms of the package travel contract before the commencement of the package travel in the circumstances specified in paragraph 2 of Article 6.752 of this Code;


2) where, due to the shortcomings indicated by the tourist, the package travel contract may no longer be performed and the tour organiser fails to eliminate the shortcomings within a reasonable period set by the tourist. In the cases provided for in paragraph 3 of Article 6.7521 of this Code, the tourist may request a reduction of the price of the package travel or a compensation for damage;


3) in the event of force majeure at the place of destination of the package travel or in its immediate vicinity, which may render it impossible to operate the package travel or to transport the tourists to the place of destination of the package travel. In this case, the tourist shall be entitled to request a refund for the payments made for the package travel, but he shall not be entitled to any additional compensation for damage.


5. The tourist shall have the right, without indicating any reasons, to withdraw within fourteen days from the package travel contract concluded outside the commercial premises, giving notice to the tour organiser in accordance with the procedure laid down in paragraphs 6 and 7 of Article 6.22810 of this Code.


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Article 6.751. Right of the tour organiser to terminate the package travel contract before the commencement of the package travel


1. The tour organiser shall have the right to terminate the package travel contract before the commencement of the package travel, reimburse the tourist for any money paid for the package travel and compensate for the damage suffered by the tourist.


2. Where the number of persons who have acquired a package travel is smaller than the minimum number of tourists specified in the contract, the tour organiser shall have the right to terminate the package travel contract only if the tour organiser has provided information on the termination of the package travel contract on this ground on a durable medium no later than:


1) twenty days before the commencement of the package travel if the duration of the travel is longer than six days;


2) seven days before the commencement of the package travel if the duration of the travel is not shorter than two days and not longer than six days;


3) forty-eight hours before the commencement of the package travel if the duration of the travel is shorter than two days.


3. The damage referred to in paragraph 1 of this Article shall not be compensated where:


1) the number of persons who have acquired a package travel is smaller than the minimum number of tourists specified in the package travel contract and the tourist has been informed in writing of the right of the tour organiser to withdraw from the contract on this ground within the time limit specified in paragraph 2 of this Article;


2) the tour organiser cannot perform the package travel contract due to force majeure and immediately informs the tourist, prior to the commencement of the package travel, of the termination of the package travel contract.


4. The tour organiser shall reimburse, not later than within fourteen days from the date of the termination of the package travel contract, all the payments made by the tourist or on his behalf for the package travel, except where, within this time limit, the tourist and the tour organiser agree, in the cases specified by the Law on Tourism, on the compensation for the unperformed package by means and under the conditions laid down in this Law.


5. No longer effective from 23 January 2021.


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Article 6.752. Changes to the terms and conditions of the package travel contract before the commencement of the package travel


1. The tour organiser shall have no right to unilaterally change the terms and conditions of the package travel contract before the commencement of the package travel, with the exception of the price in accordance with the procedure laid down in Article 6.7521 of this Code, unless all of the following circumstances exist:


1) the tour organiser is entitled to it under the package travel contract;


2) the changes to the package travel contract are not substantial;


3) the tour organiser has provided the tourist with information on the changes on a durable media in a clear and comprehensible manner in the form preferred by the tourist.


2. The tourist shall have the right, at his choice, to agree, within a reasonable period specified by the tour organiser, to the changes to the terms and conditions of the package travel contract proposed by the tour organiser or to terminate the package travel contract and not to pay the termination fee in the presence of at least one of the following circumstances/conditions:


1) the tour organiser is forced to substantially change any of the main conditions and/or characteristics of the package travel services referred to in point 1 of paragraph 1 of Article 6.748 of this Code before the commencement of the package travel;


2) the tour organiser cannot meet the special requirements of the tourist specified in the package travel contract;


3) the tour organiser proposes to increase the price of the package travel by more than 8 per cent in accordance with Article 6.7521 of this Code.


3. Where the tourist terminates the package travel contract on the basis of the circumstances referred to in paragraph 2 of this Article, the tour organiser may offer the tourist another package travel of equivalent or higher quality.


4. Where the changes to the package travel contract referred to in paragraph 2 of this Article or the package travel contract referred to in paragraph 3 of this Article result in a lower quality or a lower price of the package travel, the tourist shall be entitled to claim a partial refund of the payments made.


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5. Where the package travel contract is terminated in accordance with paragraph 2 of this Article and the tourist disagrees with the alternative package travel offered by the tour organiser, the tour organiser must reimburse all the money paid by the tourist or paid on his behalf without undue delay, but not later than within fourteen days from the date of termination of the package travel contract. Provisions concerning the limitation period for filing claims established in paragraph 1 of Article 6.252, points 1 and 2 of paragraph 1 and paragraph 2 of Article 6.7541, paragraphs 1 and 2 of Article 6.755 of this Code, paragraph 1 of Article 11 of the Law on Treaties and the Law on Tourism shall apply mutatis mutandis to the parties to the package travel contract.


6. The tour organiser shall, without undue delay, provide the tourist with the information on a durable medium in a clear and comprehensible manner on:


1) the proposed changes to the package travel contract referred to in paragraph 2 of this Article and their influence on the price of the package travel in the cases referred to in paragraph 5 of this Article;


2) the reasonable time limit within which the tourist must inform the tour organiser of his decision pursuant to paragraph 2 of this Article;


3) the consequences if the tourist fails to reply within the time limit specified in point 2 of this paragraph;


4) when offered, an alternative package travel and its price.


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Article 6.7521. Change in the price of the package travel contract


1. The tour organiser shall have the right to increase the price of a package travel after the conclusion of the package travel contract only if all of the following conditions are met:


1) the package travel contract provides that the tour organiser may increase the price of the package travel;


2) the travel package contract clearly specifies the right of the tourist to a price reduction in the event of a reduction in the costs referred to in paragraph 2 of this Article and indicates how the revised price is to be calculated;


3) the tour organiser informs the tourist, on a durable medium in a clear and comprehensible manner, about the increase of the price at least twenty days before the commencement of the package travel, indicating the reasons for the price increase and how the price increase was calculated.


2. The increase in the price of a package travel referred to in paragraph 1 of this Article shall be possible only when it is directly determined by:


1) a change in the price of tourist transport due to the costs of fuel or other energy resources;


2) a change in the fees or charges levied by third persons not directly involved in the operation of the package travel on services which are included in the package travel contract;


3) a change in the exchange rate of the foreign currency related to the package travel.


3. The tourist shall have the right to demand a reduction in the price in the following cases:


1) in the event of a decrease in the costs specified in paragraph 2 of this Article;


2) due to improper performance of the package travel contract, unless the tour organiser proves that the package travel contract is performed improperly through the fault of the tourist;


3) where proposed alternative services result in lower quality of the package travel than indicated in the package travel contract;


4) where the tour organiser cannot, for justified reasons, offer alternative services to the tourist or the tourist refuses them in accordance with paragraph 5 of Article 6.754 of this Code;


5) where, due to the shortcomings indicated by the tourist, the package travel contract may no longer be performed and the tour organiser fails to eliminate the shortcomings within a reasonable period set by the tourist.    


4. Having reduced the price of a package travel, the tour organiser shall have the right to deduct the actual administrative costs from the amount to be returned to the tourist, providing, at the request of the tourist, justification for such administrative costs.


5. Where the price increase referred to in paragraph 1 of this Article exceeds eight per cent of the final price of the package travel, the tourist shall have the right to terminate the package travel contract or choose an alternative package travel offered by the tour organiser in accordance with Article 6.752 of this Code.


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Article 6.753. Change of the parties to the package travel contract


1. The tourist shall have the right to transfer his right to a package travel to another person who will acquire all the rights and obligations of the tourist under the package travel contract, provided that the tourist gives a reasonable notice to the tour organiser before the commencement of the package travel. The tourist’s notice shall in all cases be considered reasonable if it is submitted at least seven days before the commencement of the package travel.


2. The tourist who transfers the right to a package travel and the other person shall bear solidary liability to the tour organiser for the payment of the price of the travel and costs related to the transfer of the right to the package travel.


3. The tour organiser shall inform the tourist who transfers his right to a package travel to another person about the actual costs of the transfer of the right to the package travel and shall provide the supporting evidence thereof. The costs must be reasonable and not exceed the actual costs incurred by the tour organiser for the transfer of the package travel contract.


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Article 6.754. Liability of the tour organiser for improper performance of the package travel contract


1. The tour organiser must perform the package travel contract taking into account the legitimate expectations of the tourist, which, according to the nature of the package travel contract and the services provided, the tourist may have held, regardless of whether those services are to be provided by the tour organiser or by other providers of tourist services.


2. Where the services specified in the package travel contract are provided in violation of the terms of the package travel contract, the tour organiser must, within a reasonable time limit set by the tourist, eliminate the shortcomings indicated by the tourist, with the exception of the cases specified in paragraph 3 of this Article.


3. The tour organiser may refrain from eliminating the shortcomings referred to in paragraph 2 of this Article where this is not possible or it would lead to disproportionate costs taking into account the extent of the shortcomings and the value of improperly provided services referred to in the package travel contract. Where the tour organiser fails to eliminate the shortcomings for the reasons set out in this paragraph, the provisions of Article 6.7541 relating to the compensation for damage shall apply. 


4. Where the tour organiser fails to eliminate the shortcomings for the reasons other than those referred to in paragraph 3 of this Article within a reasonable time limit designated by the tourist, the tourist may do it himself and demand reimbursement of the necessary costs. Where the shortcomings are to be eliminated immediately, the tourist shall not be required to indicate the time limit.


5. Where the tour organiser is unable to provide a substantial part of services under the package travel contract, he shall offer to the tourist, without additional costs, appropriate alternative services, the quality of which, if possible, is equivalent to or higher than the quality specified in the package travel contract, in order to continue the package travel, as well as in cases where the service of return of the tourist to the point of departure is not provided as agreed. The tourist may refuse the proposed alternatives if they are not comparable to those agreed in the package travel contract or if the price reduction granted is inadequate.


6. Where a package travel covers a passenger transport service, the tour organiser must ensure, in the cases referred to in paragraph 5 of this Article, that the tourist is returned, at no additional cost, to the initial point of departure or transported to another place agreed by the tourist, and must reimburse the tourist for the services which have not been provided.


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7. Where the tour organiser is unable to ensure the return of the tourist under the package travel contract due to force majeure, the tour organiser must cover the costs of the necessary accommodation, the category of which is,  where possible, equivalent to the one specified in the contract for the period of duration of the force majeure, but not exceeding three nights for each tourist, unless longer periods are provided for in other laws or legal acts of the European Union.


8. The limitation of costs referred to in paragraph 7 of this Article shall not apply to persons with reduced mobility as defined in Article 2(a) of Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air (OJ 2006 L 204, p. 1) and to accompanying persons, pregnant women and unaccompanied minors, as well as persons who require special medical assistance, provided that the tourist informs the tour organiser of his special needs at least forty-eight hours before the commencement of the package travel. In the cases provided for in this paragraph, the tour organiser may not limit its liability on the basis of force majeure if a respective transport service provider cannot rely on such circumstances in accordance with the legal acts of the European Union.


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Article 6.7541. Compensation for damage


1. The tourist shall have the right to claim, without undue delay, compensation for pecuniary and non-pecuniary damage in the following cases:


1) where, due to the shortcomings indicated by the tourist, the package travel contract may no longer be performed and the tour organiser fails to eliminate the shortcomings within a reasonable time limit set by the tourist;


2) where the tour organiser is unable, for justified reasons, to offer alternative services to the tourist or the tourist refuses them in accordance with paragraph 5 of Article 6.754;


3) in other cases provided for by this Code.


2. The tour organiser shall not be liable for improper performance of the package travel contract if the tour organiser proves that the package travel contract has been performed improperly:


1) through the fault of the tourist;


2) through the fault of the third party not related to the provision of services under the package travel contract and as a consequence it has not been possible to anticipate or avoid the fault.


3) due to force majeure;


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Article 6.755. Right of the tourist to compensation for damage


1. If damage, other than damage arising from the death or health impairment of the tourist, as well as intentional damage or damage caused by gross negligence, is done to the tourist in the course of provision of a service provided for in the package travel contract, but the service is not provided by the tour organiser itself, the liability of the tour organiser for such damage may be limited to a triple price of the package travel.


2. The right of the tourist to receive compensation for damage or a reduction of the price shall not affect the rights of passengers under Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OL 2004 L 046, p. 1); Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OL 2007 L 315, p. 14); Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents (OL 2009 L 131, p. 24); Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (OL 2010 L 334, p. 1); Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 (OL 2011 L 55, p. 1); and international conventions.


3. Compensation for damage paid by the tour organiser in accordance with Article 6.7541 of this Code or a reduction of the price granted by the tour organiser to the tourist in accordance with Article 6.7521 of this Code, or compensation paid or a price reduction granted in accordance with the legal acts of the European Union and international conventions referred to in paragraph 2 of this Article shall be deducted from each other in order to avoid double compensation.

 


CHAPTER XXXVI

MANDATE

 


Article 6.756. Concept of a contract of mandate


1. Under a contract of mandate, one party (the mandatary) shall undertake to perform, in the name of and at the expense of another party (the mandator) certain legal actions in respect of third persons.


2. The powers granted to the mandatary and the written document confirming thereof shall be referred to as a power of attorney.


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Article 6.757. Subject matter of a contract of mandate


1. Under a contract of mandate, the mandator may authorise the mandatary to perform legal actions related with the defence of the mandator, execute administration of the mandator’s property in total or a part thereof, perform procedural actions on behalf of the mandator in the court and other institutions, as well to as effectuate any other legal actions.


2. The person’s consent to assume the mandate may be expressed explicitly or, taking in regard the concrete circumstances, by silence.

 


Article 6.758. Remuneration of the mandatary


1. A contract of mandate may be either by gratuitous title or by onerous title.


2. A contract of mandate entered into by natural persons shall be presumed to be by gratuitous title, except in cases where the legal action performed by the mandatary on behalf of another person constitutes professional or business activity of the mandatary. In the instances where one or both parties to a contract of mandate are entrepreneurs, the contract shall be presumed to be by onerous title.


3. In the instances where the contract is onerous, the amount of the mandatary’s remuneration shall be determined by the contract of mandate or by laws. In the event where neither the contract nor laws determine the amount of the remuneration, the payment shall be determined taking into consideration usages, market prices, the character and duration of the services rendered, recommendations of the professional association of the persons engaged in rendering relevant services, and other circumstances.


4. The mandatary acting as a commercial representative of the mandator shall have the right to withhold things subject to transfer to the mandator until the latter fully remunerates the mandatary for the services rendered.


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Article 6.759. Fulfilment of mandate in accordance with the instructions of the mandator


1. The mandatary must fulfil the mandate given to him in accordance with the instructions of the mandator.  he instructions of the mandator must be lawful, practical and definite.


2. The mandatary shall have the right to deviate from the instructions of the mandator if, in the light of the particular circumstances, this is necessary in the interests of the mandator and the mandatary has not been able to enquire of the mandator in advance, or has not received any reply to his enquiry within a reasonable period. In this event, the mandatary must inform the mandator about the deviations as soon as it becomes possible.  


3. In the instances where the mandatary operates as a commercial representative, the mandator  may, in his own interest, grant the mandatary the right to deviate from the mandate without a preliminary enquiry. In this event, the commercial representative must, within a reasonable period, inform the mandator about the deviations unless otherwise provided for by the contract.


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Article 6.760. Duties of the mandatary


1. The mandatary must fulfil the mandate in good faith and with prudence and diligence in the best interests of the mandator, and avoid any conflict between his personal interests and those of the mandator.


2. The mandatary must fulfil the mandate personally, except in cases where the contract provides for exceptions, as well as where the law permits a substitution of mandatary.


3. When fulfilling the mandate, the mandatary must furnish the mandator, upon the latter’s request or, where the concrete circumstances warrant it, without any request, with all the information concerning the course of fulfilment of the mandate.


4. Having fulfilled the mandate, the mandatary must, without delay, inform the mandator accordingly, submit a report with documents of justification appended, and return the power of attorney unless otherwise provided for by the contract.


5. The mandatary must transfer to the mandator, without delay, everything received in the course of fulfilment of the mandate.  


6. Where in the instances provided for by the contract, the law or usages, the mandatary takes assistance of third persons for the fulfilment of the mandate, he shall be liable towards the mandator for the actions of those persons, and shall be bound to compensate for any damage caused to the mandator by the actions thereof.


7. In the instances where a mandate is fulfilled by several mandataries, they shall be solidarily liable towards the mandator unless otherwise provided for by the contract.


8. The mandatary shall have no right to use, in his own interests, the information or property obtained in fulfilling the mandate, except in cases provided for by the law or the contract, likewise when the mandator gives his consent to such use. Where the mandatary fails to perform this duty, he must compensate the mandator for the damage incurred by him as a result, likewise return everything that is considered to be his unjust enrichment; and in the cases where he has unlawfully used a thing or money, he must pay accordingly the lease or the interest on the sums used.


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Article 6.761. Duties of the mandator


1. The mandator must cooperate with the mandatary to facilitate the fulfilment of the mandate by the latter.


2. The mandator must, without delay, accept from the mandatary everything fulfilled by him in accordance with the contract of mandate.


3. Unless otherwise provided for by the contract, the mandator must provide to the mandatary the means necessary for the fulfilment of the mandate, compensate the mandatary for any expenses which were necessary for due fulfilment of the mandate and, in case of necessity, issue advance payment needed to cover the expenses related with the fulfilment of the mandate.


4. Upon the due fulfilment of the mandate by the mandatary, the mandator must pay remuneration to the former if the contract is onerous.


5. The mandator must compensate the mandatary for any damage incurred in the course of fulfilment of the mandate where there is no fault of the mandatary in his actions, and other persons liable for the damage are not bound to compensate for it.

 


Article 6.762. Substitution

The mandatary shall have the right to appoint another person in the fulfilment of the mandate (substitution) exclusively in the cases and under the procedure established in Article 2.145 of this Code.

 


Article 6.763. Termination of a contract of mandate


1. In addition to the grounds common to the extinction of obligations, a contract of mandate shall be terminated as a consequence of:


1) revocation of the power of attorney by the mandator;


2) renunciation of the power of attorney by the mandatary (Article 2.146 of this Code);


3) expiry of the time limit of the power of attorney;


4) death of a party to the contract;


5) liquidation of one of the parties to the contract of mandate;


6) initiation of bankruptcy proceedings against one of the parties;


7) declaration of one of the parties to the contract to be legally incapable in a certain area, of limited legal capacity in a certain area, or missing.


2. In the instances where the mandator appoints a new mandatary for the performance of the same actions, the contract of mandate shall be considered terminated from the moment when the first mandatary is notified about the appointment of a new mandatary.


3. In the instances where the mandator due to his health or other serious reasons is unable to revoke the power of attorney on his own, any interested person or a public prosecutor shall have the right to apply to the court for the revocation of the power of attorney where it is necessary in the interest of the mandator, or the public interest.


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Article 6.764. Legal effects of the termination of a contract of mandate


1. If a contract of mandate is terminated by the mandator before the mandate is fulfilled in full, he must compensate all the expenses incurred by the mandatary in the fulfilment of the mandate and also pay remuneration commensurate to the work performed, except in cases where the contract was terminated due to serious reasons, or the mandatary continued to fulfil the mandate after he learned or should have learned about the termination of the contract.


2. The mandatary shall be liable for the damage incurred by the mandator as a result of renunciation of the contract by the mandatary submitted without serious reasons or at an inopportune time.


3. In the instances of commercial representation, the special rules provided for in Articles 2.152 to 2.168 of this Code shall apply.


4. Upon the termination of a contract of mandate, the mandatary must submit a report to the mandator and return everything he has received under the contract, also perform all the actions which are a necessary consequence of his activity in order to avoid occurrence of damages to the mandator.

 


Article 6.765. Duties of the heirs of the mandatary and of the liquidator


1. In the event of death of the mandatary, his heirs must notify the mandator about the termination of the contract and take the measures necessary in order to protect the property or documents of the mandator with subsequent transference of such property and documents to the mandator.


2. The same duties as indicated in paragraph 1 of this Article shall rest upon the liquidator of a legal person in liquidation that is a mandatary.


3. The provisions established in paragraphs 1 and 2 of this Article shall also apply in respect of the guardian of the mandatary declared legally incapable in this area, in respect of the mandatary declared to be of limited legal capacity in this area and his curator, or in respect of the administrator of the mandatary against whom bankruptcy proceedings have been opened.

 


CHAPTER XXXVII

FRANCHISE


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CHAPTER XXXVII

FRANCHISE

 


Article 6.766. Concept of a franchise contract


1. Under a franchise contract, one party (the franchiser) shall undertake to grant to the other party (the franchisee), for remuneration, for a certain period or for an indefinite period, the right to use, in the franchisee’s business activities, a complex of exclusive rights which belong to the franchiser (right to the trade name, right to the trade or service mark, right to protected commercial/industrial information, etc.), while the other party shall undertake to pay for that the remuneration determined in the contract.


2. A franchise contract shall provide for the use of a complex of exclusive rights, business reputation and commercial experience of the franchiser to a determined extent (by establishing the minimum and maximum amount of use, or any other form). A franchise contract may also determine the territory of use applicable to such exclusive rights, business reputation or commercial experience, or the field of business for the use thereof (sale of goods, rendering of services, etc.).


3. Only enterprises/entrepreneurs may be parties to a franchise contract. 

 


Article 6.767. Form of a franchise contract


1. A franchise contract must be concluded in writing. Failure to comply with the requirement of the written form shall render a franchise contract null and void.


2. A franchise contract may be invoked against third persons only if the fact of conclusion of the franchise contract is registered, in accordance with the procedure established by laws, in the Register of Legal Entities in which the franchiser is registered. If the franchiser is registered in a foreign state, the fact of conclusion of the franchise contract must be registered in the Register of Legal Entities in which the franchisee is registered.


3. Where the subject matter of a franchise contract is an object protected in accordance with the industrial property law, the fact of conclusion of the franchise contract must also be registered in accordance with the procedure established by laws in the relevant institution effectuating registration of objects of industrial property law and the rights thereto.


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Article 6.768. Sub-franchise contract


1. A franchise contract may provide for the right of the franchisee to permit other persons to use the complex of exclusive rights granted to him, or a part of this complex on the terms of sub-franchise. The terms of a sub-franchise contract must be stipulated in advance in the franchise contract or agreed upon later with the franchiser. A franchise contract may also establish a duty of the franchisee, after the contract has been concluded, to grant other persons the right to use, within a determined period, the said rights on the terms of sub-franchise.


2. A sub-franchise contract may not be concluded for a longer period than the franchise contract.


3. If a franchise contract is null and void, a contract of sub-franchise concluded on the basis thereof shall also be null and void.


4. In the event of the dissolution of a fixed-term franchise contract before its expiry, the rights and duties of the sub-franchisee under the sub-franchise contract shall pass to the franchiser if he agrees to accept the rights and duties under the sub-franchise contract, except in cases when it is otherwise provided for by the franchise contract. The same rules shall also apply in the event of the dissolution of an open-ended franchise contract.


5. Unless otherwise provided for by the franchise contract, the franchisee shall bear subsidiary liability towards the franchiser for the actions committed by the sub-franchisees.


6. The provisions of this Chapter shall apply in respect of a contract of sub-franchise unless it arises otherwise from the peculiarities of the sub-franchise.

 


Article 6.769. Remuneration under a franchise contract


1. The franchisee must pay to the franchiser the remuneration determined in the franchise contract.


2. The remuneration may be determined in the form of a fixed lump sum and/or payable in instalments, deductions being made from the receipts of the franchisee or calculated in any other way specified in the contract.


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Article 6.770. Duties of the franchiser


1. The franchiser must:


1) transfer to the franchisee technical and commercial documentation and submit other information necessary to the franchisee in order to exercise the rights granted to him under the franchise contract, likewise train the franchisee and his employees with regard to all the issues related with the exercise of the transferred rights;


2) issue to the franchisee licences provided for by the contract and ensure their formalisation in accordance with the established procedure.


2. Unless otherwise provided for by the franchise contract, the franchiser must:


1) ensure the registration of the franchise contract;


2) render to the franchisee ongoing technical and consultative support and assistance in training of the franchisee’s employees;


3) execute control of the quality of goods produced, work performed or services rendered by the franchisee under the franchise contract.

 


Article 6.771. Duties of the franchisee

Taking into account the character and peculiarities of the activity performed, as well as the terms of the franchise contract, the franchisee must:


1) use in his activities, in the manner specified in the franchise contract, the trade name, and the trade and service mark of the franchiser;


2) ensure the quality of the goods produced, work performed or services rendered under the franchise contract;


3) comply with the directions and instructions of the franchiser in respect of the use of the rights, external and internal design of the business premises of the franchisee, as well as any other terms of activity specified in the franchise contract;


4) render to buyers/clients any additional services which they could reasonably expect in acquiring/ordering goods, work or services directly from the franchiser;


5) not divulge to other persons any commercial/industrial secrets or any other confidential information received from the franchiser;


6) conclude a sub-franchise contract where this duty is provided for in the franchise contract;


7) inform the buyers/clients, by the most obvious means to them, that the franchisee is acting under the franchise contract and is using the trade name, trade and service mark of the franchiser or any other symbols of individualisation thereof.


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Article 6.772. Limitation of the rights of the parties


1. The parties to a franchise contract may provide for only such conditions for limiting competition which are not prohibited by the competition law.


2. In the event where the requirement set forth in paragraph 1 of this Article is satisfied, the franchise contract may establish the following limitations of the rights of the parties:


1) obligation of the franchiser not to grant to other persons analogous complexes of exclusive rights for the use thereof on the territory consolidated for the franchisee, or refrain from own analogous activity in the same territory;


2) obligation of the franchisee not to compete with the franchiser in the territory specified in the contract in the business activity carried out by the franchisee with the use of the exclusive rights granted to him;


3) prohibition for the franchisee to receive, under a franchise contract, analogous exclusive rights from competitors/potential competitors of the franchiser;


4) obligation of the franchisee to agree with the franchiser upon the location of the business premises determined in the contract, as well as the external and internal design thereof.


3. The terms of a franchise contract limiting the rights of the parties thereto may be declared null and void upon the grounds and in accordance with the procedure established by the law regulating competition if these terms limit competition.


4. The terms of a franchise contract prohibited by the competition law shall be invalid, in particular such terms by virtue of which:


1) the franchiser is entitled to determine the prices, or their lower limit, of the goods produced or work performed, or services rendered by the franchisee;


2) the franchisee is entitled to sell goods, perform work or render services exclusively to a certain category of buyers/clients or exclusively to buyers/clients residing in the territory determined in the franchise contract.

 


Article 6.773. Liability of the franchiser in relation to claims brought against the franchisee


1. The franchiser shall be subsidiary liable for claims brought against the franchisee concerning the quality of the goods, work or services sold or rendered by the franchisee under the franchise contract.


2. With regard to claims brought against the franchisee as the manufacturer of the goods/products of the franchiser, the franchiser shall be solidarily liable with the franchisee.


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Article 6.774. Right of the franchisee to conclude a franchise contract for a new term


1. The franchisee who has duly performed his duties under a franchise contract shall have the right, upon the expiry of the term of the franchise contract, to conclude a new contract for a new term on the same conditions.


2. The franchiser shall have the right to refuse to conclude a franchise contract for a new term provided that he undertakes not to conclude, within three years from the date of expiry of the term of the contract, with any other persons, an analogous franchise contract which would extend over the same territory on which the terminated contract operated. If, before the expiry of the three-year time limit, the franchiser wishes to grant the same exclusive rights to other persons, he must propose conclusion of a new contract to the franchisee or compensate the damages incurred by him.  When concluding a new contract, the conditions thereof may not be more onerous for the franchisee than the conditions of the previous contract.

 


Article 6.775. Change of the conditions of a franchise contract

A franchise contract may be modified by agreement between the parties upon general grounds.  The fact of modification of the contract may be invoked against third persons only if this fact has been registered in accordance with the procedure established in paragraph 2 of Article 6.767 of this Code.

 


Article 6.776. Termination of a franchise contract


1. Each party to a franchise contract concluded for an indefinite period shall have the right to repudiate the contract having notified the other party thereof six months in advance unless a more extended period has been established in the contract.


2. The dissolution (termination) of a franchise contract shall be subject to registration in accordance with the procedure established in paragraph 2 of Article 6.767 of this Code.


3. In the event where the franchiser loses the right to the trade name or a trade/service mark without a replacement thereof by a new analogous right, the franchise contract shall terminate.


4. In the event of bankruptcy proceedings being initiated against the franchiser or the franchisee, the franchise contract shall terminate.


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Article 6.777. Substitution of the parties


1. If one or more of the exclusive rights which constitute the subject matter of the franchise contract pass to another person, the franchise contract shall remain valid. The new franchisee shall become a party to the franchise contract in that part of the rights and duties which is related to the exclusive rights transferred thereto.


2. In the event of the death of the franchiser or the franchisee, their rights and duties under the franchise contract shall pass to the heir on condition that he is an entrepreneur and continues the business or starts a business within six months from the date of opening of the inheritance. Otherwise, the franchise contract shall terminate. The effectuation of the rights and performance of the duties of the deceased under the franchise contract, before the acceptance of these rights and duties by the heir, shall be executed by the property administrator appointed by the court.

 


Article 6.778. Effects of change of the trade name and trade/service mark of the franchiser

In the event of a change of the trade name or trade/service mark of the franchiser which constitute the subject matter of the franchise contract, the franchise contract shall be valid in respect of the new trade name or trade/service mark unless the franchisee demands termination of the contract and compensation of damages. In the event of the continuation of the validity of the contract, the franchisee shall have the right to request commensurate reduction of the franchiser’s remuneration unless otherwise provided for by the contract.

 


Article 6.779. Effects of termination of exclusive rights


1. In the event of the expiry of an exclusive right which constitutes the subject matter of a franchise contract or where this right terminates upon any other grounds, the franchise contract shall continue to be valid, except for the terms and conditions relating to the terminated right, while the franchisee shall have the right, unless otherwise provided for in the contract, to require commensurate reduction of the remuneration due to the franchiser.


2. In the event of termination of any of the exclusive rights, the fact of concluding a franchise contract shall be subject to re-registration unless the franchisee demands termination of the contract and compensation of damages.

 


CHAPTER XXXVIII

COMMISSION


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CHAPTER XXXVIII

COMMISSION

 


Article 6.780. Concept of a commission contract


1. Under a commission contract, one party (the commission agent) shall undertake to conduct, upon the mandate of the other party (the committent), for remuneration, one or several transactions in his own name but at the expense of the committent.


2. The commission agent shall acquire the rights and duties in respect of the transaction concluded by the commission agent with a third person, even though the committent was also named to the third person or entered into direct relations with the third person in regard to the performance of the transaction. 


3. A commission contract may be fixed-term or open-ended.  


4. A contract of commission may be concluded with or without specifying the territory of the performance thereof, likewise with or without a duty of the committent not to grant to third persons the right to conclude a contract in his interests and at his expense, the conclusion of which has been entrusted to the commission agent.


5. A commission contract may or may not specify the things that are the subject matter of the contract.


6. The peculiarities of individual types of commission contracts may be determined by laws.


7. In the instances where parties to a commission contract are enterprises/entrepreneurs, the commission contract may only provide for such conditions to limit competition which are not prohibited by the competition law.

 


Article 6.781. Remuneration for commission


1. The committent must pay remuneration to the commission agent. In the event where the commission agent acted as surety for the performance of the transaction by a third person, the committent must also pay additional remuneration to the commission agent in the amount established in the contract. If the amount of the remuneration for commission or the additional remuneration is not established in the contract, it shall be determined in accordance with the provisions of Article 6.198 of this Code.


2. In the event of failure to perform a commission contract due to reasons for which the responsibility falls upon the committent, the commission agent shall retain his right to remuneration for the commission as well as compensation for the expenses incurred.

 


Article 6.782. Performance of commission


1. The commission agent must perform the assumed commission mandate on the conditions most advantageous to the committent and in accordance with the instructions of the committent or, in the absence of such instructions, in accordance with the usual business customs and the requirements of business practice.


2. In the instances where the commission agent concluded a transaction on conditions more advantageous than those specified by the committent, the additional advantage derived from the transaction shall be enjoyed by the commission agent unless otherwise provided for by the contract.


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Article 6.783. Liability for failure to perform the transaction


1. The commission agent shall not be liable towards the committent for the failure of a third person to perform the transaction concluded with him at the expense of the committent, except in cases when the commission agent acted as surety for the performance of the transaction by the third person, or failed to display the necessary caution in the selection of the third person as a party to the transaction.


2. In the event of the failure of a third person to perform the transaction concluded with the commission agent, the latter must immediately inform the committent thereof, collect the necessary evidence, and, at the demand of the committent, assign the right of claim to him in respect of that transaction.


3. In the instances provided for in paragraph 2 of this Article, the commission  agent may assign the right of claim to the committent irrespective of any prohibition or limitation of such assignment in the transaction between the commission agent and the third person. Nevertheless, assignment of the right of claim in such cases shall not relieve the commission agent from liability against the third person for the violation of the agreement prohibiting or limiting the assignment of the right of claim.

 


Article 6.784. Sub-commission


1. Unless otherwise provided for by the commission contract, the commission agent shall have the right, for the purpose of performing the commission contract, to conclude a contract of sub-commission with another person. Nevertheless, even in such instances, the commission agent shall remain liable towards the committent for the actions of the sub-commission agent. 


2. Under a contract of sub-commission, the commission agent shall acquire the rights and duties of the committent with respect to the sub-commission agent.


3. Upon the termination of a contract of sub-commission, the committent shall have no right, without the consent of the commission agent, to enter into direct relations with the sub-commission agent unless otherwise provided for by the contract.


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Article 6.785. Deviation from the instructions of the committent


1. The commission agent shall have the right to deviate from the instructions of the committent in the circumstances where this is necessary for the interests of the committent, and where the commission agent could not obtain in advance the approval of the committent, or did not receive any reply within a reasonable time after his enquiry was sent. In this event, the commission agent must inform the committent about the deviations as soon as it becomes possible.


2. In the instances where the commission agent operates as an enterprise/entrepreneur, the committent may grant the commission agent the right to deviate from his instructions without prior permission. In this event, the commission agent must inform the committent about the deviations within a reasonable period unless otherwise provided for by the contract.


3. The commission agent who has sold a thing at a price lower than agreed with the committent must compensate to the latter for the difference in prices unless he proves that he had no possibility to sell the thing at the agreed price and the sale at a lower price enabled the committent to avoid even greater losses. In the instances where the commission agent was obliged to acquire the committent’s permission in advance to sell a thing at a lower price, he must also prove that he had no possibility to obtain such permission in advance.


4. If the commission agent has purchased a thing at a higher price than agreed with the committent, the latter, not wishing to accept such purchase, must notify the commission agent thereof within a reasonable time upon receipt of the notice from the commission agent about the conclusion of a transaction with a third person. Otherwise, it shall be deemed that the committent has accepted the performance of the obligation.  If the commission agent informs that he accepts the difference in prices at his own expense, the committent shall have no right to repudiate the concluded contract.

 


Article 6.786. Right of ownership of the committent


1. Things received by the commission agent from the committent or acquired at the expense of the latter shall be in the ownership of the committent from the moment of the transfer.


2. The commission agent shall have the right to retain the things in his possession which are subject to transfer to the committent or to the person indicated by the latter if the committent fails to perform his obligations in respect of the commission agent.


3. In the event where the committent is declared insolvent (bankruptcy proceedings have been initiated against him), the commission agent shall lose the right of retention and acquire the right of pledge in respect of the thing concerned, while his claims for the amount of the thing retained shall be satisfied together with the claims secured by the pledge.


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Article 6.787. Satisfaction of claims of the commission agent from the amounts due to the committent 

The commission agent shall have the right, in accordance with the contract of commission, to deduct the amounts due to him from all the amounts received by him on the account of the committent. Nevertheless, the creditors of the committent who enjoy preference with respect to priority of satisfaction of their claims to the commission agent shall not lose the right to satisfy their claims from the amounts deducted by the commission agent.

 


Article 6.788. Liability of the commission agent for the loss, shortage or damage of the committent’s thing


1. The commission agent shall be liable towards the committent for the loss, shortage or damage of the committent’s thing situated with the commission agent unless he proves that this happened not through his fault.


2. If the commission agent, in accepting a thing transferred by the committent or received by the commission agent for the committent, notices damage or shortage thereof which is evident from external inspection, likewise if damage has been caused by somebody to the committent’s thing situated with the commission agent, the commission agent must take measures to protect the rights of the committent, gather the necessary evidence and immediately notify the committent thereof.


3. The commission agent who has not insured the committent’s thing situated with the commission agent shall be liable towards the committent exclusively in the cases where the latter has obligated him to insure the property at the expense of the committent, or if the commission agent was obliged to insure the thing pursuant to the commission contract or the law.

 


Article 6.789. Report of the commission agent 


1. Upon the performance of the commission, the commission agent must submit a report to the committent and transfer to him everything he has received under the commission, likewise transfer, upon the demand of the committent, all the rights acquired by the committent in respect of a third person arising from the transaction concluded by the commission agent.


2. In the instances where the committent has objections with regard to the report, he must inform the commission agent accordingly within three months from the date of receipt of the report. Otherwise, the report shall be considered to be accepted unless there is another agreement.

 


Article 6.790. Duty of the committent to accept performance of commission

The committent must:


1) accept from the commission agent everything received under the commission;


2) inspect the thing acquired for him by the commission agent and notify the latter without delay about any defects discovered in the thing;


3) relieve the commission agent from the commitments assumed by him to a third person in the performance of the commission.


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Article 6.791. Compensation for expenses incurred in the performance of the commission


1. The committent must, in addition to the commission payment and, in relevant instances, also additional payment for the suretyship assumed (del credere), compensate the commission agent for the necessary expenses incurred by him in the performance of the commission unless otherwise  agreed between the parties.


2. The commission agent shall have no right to demand compensation for the deposit of the committent’s thing situated with the commission agent unless otherwise provided for by the law or the contract.

 


Article 6.792. Termination of a commission contract


1. A commission contract shall terminate as a consequence of: 


1) refusal by the committent to perform the commission contract;


2) refusal by the commission agent to perform the commission contract in the cases provided for by the law or contract;


3) death of the commission agent, declaration thereof to be legally incapable in this area, of limited legal capacity in this area or to be missing, liquidation thereof or declared insolvent (initiation of bankruptcy proceedings).


2. In the event where bankruptcy proceedings are initiated against the commission agent, all the rights and duties with regard to a transaction concluded by him under the instructions of the committent shall pass to the committent.

 


Article 6.793. Revocation of commission


1. The committent shall have the right, at any time, to withdraw from the commission contract by revoking the commission given to the commission agent. In this event, the commission agent shall have the right to demand compensation for the expenses caused by the revocation of the commission. 


2. In the instances where the commission contract was concluded for an indeterminate term, the committent must inform the commission agent about the revocation of the commission not later than thirty days in advance unless the commission contract provides for a more extended period. In such cases, the committent must remunerate the commission agent for the transactions concluded by him before the revocation of the commission and compensate the commission agent for the damages suffered.


3. Having revoked the commission, the committent must, within the period established in the contract, or immediately if such period has not been established, instruct the commission agent of how to dispose of the committent’s thing situated with him. Where the committent fails to perform this duty, the commission agent shall have the right to hand over the thing for deposit at the expense of the committent or sell it at a most advantageous price for the committent.


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Article 6.794. Refusal by the commission agent to perform commission


1. Unless otherwise provided for by the contract, the commission agent shall have no right to refuse performance of the commission assumed, except in cases where the refusal is caused by the impossibility to perform the commission or the committent has violated the commission contract.


2. In the instances where the commission agent has the right to refuse commission, he must inform the committent in writing about his refusal. The commission contract shall continue to be valid for two weeks from the date when the committent receives the notification from the commission agent about the refusal of the commission.


3. In the instances where the commission agent refuses performance of the commission assumed on the grounds that the committent has violated the commission contract, he shall be entitled to both compensation of the expenses incurred and the remuneration for the commission.


4. Having refused performance of the contract, the commission agent must take measures necessary for the protection of the committent’s thing.

 


Article 6.795. Instructions in respect of property in the event of refusal by the commission agent to perform commission or upon revocation of the commission by the committent


1. The committent, having received the notification of the commission agent about the latter’s refusal to perform commission, must, within one month from the date of receipt of the notification, issue instructions concerning his property situated with the commission agent.


2. If the committent fails to issue instructions in regard of his thing situated with the commission agent within the established period, the commission agent shall have the right to hand over the thing for deposit at the expense of the committent or, with the purpose of satisfying his claims related with the committent, to sell the thing at the most advantageous price for the committent.

 


CHAPTER XXXIX

DISTRIBUTION

 


Article 6.796. Concept of a distribution contract


1. Under a distribution contract, one party (the distributor) shall undertake, within a fixed period or with no term being determined, to purchase in his name and at his expense from the other party (the producer/supplier) goods/services and sell them to the final consumer or to other distributors, as well as to perform other work related to the resale of goods/services, while the producer/supplier shall undertake to sell goods/services to the distributor, as well as to perform other work related to the distribution of goods/services.


2. Only enterprises/entrepreneurs may be parties to a distribution contract. 

 


Article 6.797. Duration of a distribution contract

A distribution contract may be fixed-term or open-ended.


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Article 6.797. Duration of a distribution contract

A distribution contract may be fixed-term or open-ended.

 


Article 6.798. Form of a distribution contract

A distribution contract must be concluded in writing. Failure to comply with this requirement shall render the contract null and void.

 


Article 6.799. Distributor

The distributor shall be an independent enterprise/entrepreneur which purchases in its/his name and at its/his expense goods from the producer or other distributor and resells them to the final consumer or other distributors.

 


Article 6.800. Types of distribution contracts


1. Distribution contracts may be exclusive and selective.


2. Under an exclusive distribution contract, the producer/supplier shall undertake to sell goods indicated in the contract as intended for resale only to one distributor in a concrete territory exclusively attributed to the distributor or to a concrete group of consumers exclusively attributed to the distributor.


3. Under a selective distribution contract, the producer/supplier shall undertake to sell goods intended for resale only to certain distributors who conform to the technical, qualification or any other criteria determined by the producer/supplier.

 


Article 6.801. Limitation of rights of the parties


1. The parties to a distribution contract may provide for only such conditions for limiting competition which are not prohibited by the competition law. Supervision of such conditions shall be executed by a relevant authority pursuant to the procedure established by laws. The competition law may establish additional requirements for the validity of such conditions (registration, etc.).


2. Where all the requirements established in paragraph 1 of this Article are complied with, the parties may determine the following clauses in an exclusive distribution contract:


1) preventing the distributor from producing or distributing goods that compete with the goods indicated in the contract;


2) obligating the distributor to purchase the goods indicated in the contract only from the producer/supplier;


3) preventing the distributor from searching for customers and establishing branches and representative offices in any other territory than indicated in the contract.


3. The parties shall have no right to determine in the distribution contract the price of resale of the goods, or any other exclusive conditions contradictory to the requirements of the competition law.


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Article 6.802. Rights and duties of the distributor


1. The parties may establish in the contract that the distributor who duly performs the contract shall be entitled to additional remuneration for the additional services supplied or the work performed in the interests of the producer/supplier.


2. The parties may also establish the maximum level of the distributor’s profit derived from the resale of the goods unless otherwise provided for by the competition law.


3. Unless otherwise provided for by the contract and the competition law, the distributor must: 


1) sell the goods only in the territory or to persons indicated in the contract;


2) ensure effective distribution of goods;


3) organise the advertising and advertising campaigns for the goods of the producer/supplier;


4) ensure adequate qualification of his employees and their training;


5) ensure adequate storage and warehousing of the goods and continuous replenishing of the stock, establish and maintain a network of trade warehouses;


6) sell the goods under the trademark of the producer/supplier or in the special packaging or with other labelling of the producer/supplier;


7) avoid establishing branches and representative offices in any other territory than determined in the contract;


8) purchase the goods in certain batches or a certain minimum amount within the period established in the contract;


9) sell the goods within a certain period established in the contract;


10) provide technical service to the goods after their sale or provide the buyers of those goods with any other guarantee or servicing;


11) furnish the producer/supplier with information about the market conditions, its changes and conduct market research;


12) avoid producing goods which compete with the goods established in the contract;


13) avoid revealing commercial secrets or any other confidential information of the producer/supplier;


14) upon the termination of the contract, return to the producer/supplier all the documents, materials, trade samples, etc. received from him.


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Article 6.803. Rights and duties of the producer/supplier


1. The producer/supplier shall have the right to control the warehouses and any other premises of the distributor where the goods purchased from the producer/supplier are stored or sold, as well as control the compliance with other conditions of the contract.


2. Unless otherwise provided for by the contract, the producer/supplier must:


1) sell the goods of adequate quality and guarantee their quality, sell the goods within the time periods and to the extent established in the contract;


2) sell the goods agreed upon only to the distributor and avoid selling goods directly to the consumer;


3) train the employees of the distributor;


4) supply the distributor with advertising material;


5) pay the distributor the remuneration established in the contract for additional services supplied by the distributor.

 


Article 6.804. Dissolution of a distribution contract


1. Each party to an open-ended contract shall have the right, at any time, to terminate it having notified in writing the other party thereof not later than three months in advance before the intended dissolution of the contract, unless a more extended period for notice is established in the contract.


2. Upon the dissolution of a fixed-term contract before its expiry, the distributor shall have the right to demand compensation for the income loss for the remaining period of the validity of the contract where the contract is dissolved due to the fault of the producer/supplier. Where the contract is dissolved due to the fault of the producer/supplier, the distributor shall also have the right to demand remuneration for additional services, unless otherwise provided for by the contract.


3. Where the contract is dissolved due to the fault of the distributor, the producer/supplier shall have the right to claim compensation for damage, unless otherwise provided for by the contract.

 


Article 6.805. Renewal of a contract

In the instances where after the expiry of a fixed-term distribution contract the parties continue the performance thereof, the contract shall be deemed renewed under the same conditions for the same period of operation.

 


Article 6.806. Liability of the parties to a distribution contract towards third persons


1. For the damage caused to third persons, the distributor and producer/supplier shall be liable on general grounds.


2. For the damage caused to the consumer by goods or services of inadequate quality, liability of the distributor and producer/supplier shall arise in accordance with the rules established in Articles 6.292 to 6.300 of this Code.


3. The clauses of the distribution contract by which the producer/supplier is relieved from liability for damage caused to consumers by goods produced/services supplied shall be null and void.

 


CHAPTER XL

CARRIAGE


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CHAPTER XL

CARRIAGE

 


Article 6.807. General provisions of carriage


1. The carriage of goods, passengers and luggage shall be subject to the contract of carriage.


2. Carriage conditions shall be laid down by this Code, codes of individual modes of transport, other laws, international treaties to which the Republic of Lithuania is a party, as well as other transport legislation.

 


Article 6.808. Contract for the carriage of goods


1. Under the contract for the carriage of goods, the carrier shall undertake to carry the goods handed over to him by the consignor to the point of destination and to deliver them to the person entitled to receive such goods (the consignee), while the consignor/consignee shall undertake to pay a specified charge for the carriage of the goods.


2. The conclusion of the contract of carriage shall be confirmed by a bill of lading or another document. 

 


Article 6.809. Contract for the carriage of passengers


1. Under the contract for the carriage of passengers, the carrier shall undertake to carry passengers to the point of destination and, where the passengers hand over their luggage to him, to carry the luggage to the point of destination and deliver it to the person entitled to receive such luggage, while the passengers shall undertake to pay a specified charge for the carriage and, where appropriate, for the carriage of their luggage.


2. The conclusion of the contract for the carriage of passengers shall be confirmed by a ticket; the handing over of luggage shall be confirmed by a luggage ticket or any other document provided for by transport legislation.

 


Article 6.810. Charter-party


1. Under a charter-party (charter), one party (the owner) shall undertake to provide to the other party (the charterer), in return for consideration, a means of transport or some part thereof for the carriage of goods, passengers or luggage.


2. The procedure and conditions for the conclusion of a charter-party shall be laid down by codes of individual modes of transport and other laws.

 


Article 6.811. Direct combined transport


1. Relationships between transport undertakings in relation to the carriage of goods, passengers or luggage by different modes of transport under a single document of carriage (direct combined transport) as well as organisation of such transport operations shall be regulated by agreements concluded between appropriate transport organisations.


2. Where one carrier entrusts another carrier with the performance of all or part of his obligations, the latter shall also be deemed to be the party to the contract of carriage.  The consignor/consignee shall be deemed to have discharged his obligations by payment to one of the carriers.


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Article 6.812. Public transport services


1. A legal person (entrepreneur) engaged in the provision of transport services shall be deemed to be providing public transport services if, subject to a law or an authorisation (a licence), he is obliged to provide regular scheduled freight or passenger services at the request of any person.


2. The contract for the provision of public transport services shall be a public contract.


3. Public transport undertakings must provide transport services to any individual, with the exception of cases provided for by law when they are entitled to refuse to enter into contracts of carriage.


4. Passengers, as well as consignors and consignees of goods must conform with the rules governing the activities of public transport undertakings.

 


Article 6.813. Carriage charges


1. The carriage of goods, passengers and luggage shall be subject to a charge to be determined by mutual agreement of the parties, unless otherwise provided for by the law.


2. The charge for the carriage of goods, passengers and luggage by public transport shall be established on the basis of tariffs adopted in accordance with the procedure laid down by laws.


3. Any operations or services provided for by the carrier at the request of the consignor of goods shall be remunerated by mutual agreement of the parties, unless such operations and services are subject to established tariffs.


4. The carrier shall be entitled to retain goods and luggage entrusted to him until carriage charges and other amounts due to him have been paid, unless otherwise provided for by law or the contract of carriage.


5. If, in cases provided for by law, charges for the carriage of certain categories of passengers, goods or luggage are subject to preferential arrangements, the carriers shall be compensated for the costs incurred by them to this effect in accordance with the procedure established by laws.

 


Article 6.814. Provision of means of transport


1. Means of transport to be provided by the carrier to the consignor must be in a proper condition and provided within the time limits stipulated in the consignor’s order, the contract of carriage or the contract for the organisation of carriage.


2. The consignor shall be entitled to refuse the means of transport provided to him if they are not suitable for the carriage of certain goods.


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Article 6.815. Loading/unloading of goods 


1. Loading/unloading operations shall be undertaken by the carrier or the consignor/consignee subject to the procedure provided for by the contract of carriage and in accordance with the rules established in the codes of appropriate modes of transport or other legal acts.


2. Where the consignor/consignee is in charge of loading/unloading operations by his own efforts and means, he must do this within the time limit prescribed by the contract of carriage, law or other legal acts.

 


Article 6.816. Time limits for the delivery of goods, passengers and luggage 

The carrier must deliver goods, passengers or luggage to the point of destination within the time limits prescribed by the contract, law or other legal acts or, where such time limits are not prescribed, within a reasonable period.

 


Article 6.817. Liability for the breach of the contract of carriage


1. The parties shall be liable for the failure to perform or improper performance of the contract of carriage on the grounds and in accordance with the procedure laid down in the contract of carriage, this Code, as well as the codes of individual modes of transport and other laws.


2. The terms and conditions of the contract of carriage that exclude or limit the carrier’s civil liability shall be null and void, save for the exceptions laid down by the law.   

 


Article 6.818. Liability for the failure to provide or to use the means of transport


1. The carrier shall be liable for the failure to provide the means of transport and the consignor shall be liable for the failure to supply the goods or the failure to use the means of transport provided to him on the grounds and in accordance with the procedure laid down by the contract of carriage or laws.


2. The carrier and the consignor shall be exempt from liability for the failure to provide the means of transport or the failure to use them if this is due to:


1) force majeure;


2) termination or restriction of the carriage of goods on certain routes subject to procedures laid down by transport legislation;


3) other cases provided for by the codes of individual modes of transport or other laws.


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Article 6.819. Carrier’s liability for delay of the means of transport


1. Where a means of transport used for the carriage of passengers fails to commence its journey at the specified time or where it fails to reach the point of destination at the specified time (with the exception of means of transport engaged in urban and suburban services), the carrier shall pay to the passenger a penalty laid down by transport legislation, unless the carrier proves that this was due to force majeure, elimination of a breakdown of the means of transport which posed a risk to the health or life of passengers, or due to other circumstances beyond the carrier’s control.


2. Where due to delay of the means of transport the passenger withdraws from the contract of carriage, the carrier must reimburse the passenger for the carriage charge that the latter has paid.

 


Article 6.820. Carrier’s liability for the failure to preserve the goods or luggage


1. The carrier shall be liable for the failure to preserve (loss, shortage, damage of) the goods or luggage from the time he accepts the goods or luggage until the delivery thereof to the consignee or any other authorised person, unless the carrier proves that the full or partial loss or damage of the goods or luggage was due to circumstances that the carrier could not have avoided and the elimination of which was beyond the carrier’s control.


2. The extent of the carrier’s liability for the damage caused due to the loss, shortage or damage of the goods or luggage shall be laid down by the contract of carriage or the law.


3. In addition, where the carrier fails to preserve the goods or luggage and where the carriage charges are not included into the value of the goods or luggage, the carrier must reimburse the consignor/consignee for the carriage charges paid by the latter for the carriage of goods or luggage.


4. Documents drafted unilaterally by the carrier with regard to the reasons for the failure to preserve the goods or luggage or the damage thereof may be litigated in the court of law and must be assessed by the court together with other evidence in the case validating the grounds for the carrier’s liability. 

 


Article 6.821. Presentation of claims to the carrier 

The codes of individual modes of transport or other laws may lay down obligatory presentation of claims to the carrier before addressing the court of law.


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Article 6.822. Contracts for the organisation of carriage


1. Where goods are carried continuously and there is a need for setting time limits and procedures for the provision of means of transport and goods, the carrier and the consignor shall enter into a long-term contract for the organisation of carriage.


2. Under the contract for the organisation of carriage, the carrier shall undertake to accept at the time specified in the contract and the consignor shall undertake to supply for carriage the goods in the amount specified in the contract. The contract for the organisation of carriage shall lay down the scope of means of transport and the goods, time limits, payment procedures and other conditions.

 


Article 6.823. Carrier’s liability for the death or injury of the passenger

The carrier’s liability for the death or injury of the passenger shall be determined pursuant to the rules set out in Section Three (Articles 6.263 to 6.291) of Chapter XXII of this Code, unless the law or the contract of carriage provide for a broader extent of the carrier’s civil liability.

 


CHAPTER XLI

FREIGHT FORWARDING


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CHAPTER XLI

FREIGHT FORWARDING

 


Article 6.824. Concept of freight forwarding and a contract of freight forwarding


1. Freight forwarding shall mean the organisation of the carriage of goods and operations related thereto provided for in the contract of freight forwarding.


2. The freight forwarder shall mean a legal person (entrepreneur) who has concluded a contract of freight forwarding with the customer whereby he has undertaken to transport, at the expense of the customer/customer’s client and on the customer’s or his own behalf, the customer’s goods as well as to perform any other operations related thereto.


3. Under a contract of freight forwarding, one party (the freight forwarder) shall undertake, for remuneration and at the expense of the other party, i.e. the customer/customer’s client, to provide or organise services provided for in the contract and related to the carriage of goods.


4. A contract of freight forwarding shall be deemed concluded from the moment when the freight forwarder acknowledges the receipt of an order. 


5. The contract of freight forwarding may provide for the freight forwarder’s duty to organise the carriage of goods by the means of transport and the route of the freight forwarder’s or the client’s choice, the freight forwarder’s duty to conclude contracts of carriage or any other contracts on his own or the client’s behalf, to ensure the dispatch, loading or unloading of goods, as well as for any other duties related to the carriage of goods.


6. The contract of freight forwarding may provide for such additional services to be provided by the freight forwarder as obtaining from appropriate bodies documents necessary for the export or import of goods, carrying out customs or other formalities, inspecting the quantity and condition of goods, loading or unloading of goods, paying fees, charges and other amounts to be paid by the customer/the customer’s client, keeping and storing of goods, as well as providing other services.


7. The rules of this Chapter shall also apply in cases where, under the contract, the freight forwarder’s duties are performed by the carrier.


8. The contract of freight forwarding may be either fixed-term or open-ended.


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Article 6.825. Form of a contract of freight forwarding


1. The contract of freight forwarding shall be concluded in writing or by way of placing an order by any appropriate means of communication.


2. A bill of lading may also constitute a contract of freight forwarding when completed by the freight forwarder and signed by the customer/customer’s client.


3. The client must issue an authorisation to the freight forwarder if this is necessary for the performance of the freight forwarder’s duties.

 


Article 6.826. Freight forwarder’s liability


1. The freight forwarder shall be liable for the failure to perform or improper performance of the contract of freight forwarding in accordance with the procedure laid down in the contract.


2. Where the freight forwarder proves that the breach of the contract of freight forwarding was due to the failure to perform or improper performance of the contract of carriage, the freight forwarder’s liability towards the customer/customer’s client shall be established pursuant to the same rules as are applied to the appropriate carrier’s liability towards the freight forwarder.

 


Article 6.827. Documents and information to be furnished to the freight forwarder


1. The customer/the customer’s client must furnish the freight forwarder with documents and other information on the properties of goods, carriage conditions as well as any other details necessary to enable the freight forwarder to duly fulfil his obligations.


2. The freight forwarder must notify the customer/customer’s client of any omissions in the information furnished to him and, in the case where not all information has been received, he must demand that the client furnish all the necessary information.


3. Where the customer/customer’s client fails to furnish the necessary information, the freight forwarder shall have the right to suspend the performance of the contract until such time as the information is supplied. 


4. The customer/customer’s client shall be liable for the damages incurred by the freight forwarder as a result of the failure on the part of the customer/customer’s client to comply with the duties laid down in this Article.


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Article 6.828. Invoking a third party for the performance of an obligation 


1. The freight forwarder shall have the right to invoke third parties for the performance of his obligations, unless the contract provides for the freight forwarder’s obligation to perform the contract personally.


2. Full or partial transfer of the obligation to perform the contract to third parties shall not release the freight forwarder from his obligation towards the customer/customer’s client with respect to the performance of the contract.


3. Where third parties are invoked by the freight forwarder, in full or in part, for the performance of the contract, the freight forwarder shall acquire the rights of the customer/customer’s client with respect to such third parties.

 


Article 6.829. Unilateral termination of the contract


1. Each party shall have the right to unilaterally terminate an open-ended contract of freight forwarding by one month’s notice to the other party, unless a more extended period of notice is provided for in the contract.


2. The party which unilaterally terminates the contract must reimburse the other party for the resulting damage.

 


CHAPTER XLII

DEPOSIT

 


SECTION ONE

GENERAL PROVISIONS

 


Article 6.830. Concept of a contract of deposit


1. Under a contract of deposit, one party (the depositary) shall undertake to keep in his possession a movable thing delivered to him by the other party (the depositor) and to restore it safely preserved to the depositor, whereas the depositor shall undertake to pay remuneration, if this is established by the contract.


2. By agreement between the parties, a contract of deposit may be onerous or gratuitous.


3. Where the depositary is a legal person (entrepreneur) for whom safekeeping constitutes one of the activities he engages in (professional depositary), the contract of deposit or the documents of incorporation of the legal person may provide for the depositary’s obligation to accept into possession from the depositor a thing within the period specified in the contract.


4. A contract of deposit shall be deemed concluded from the moment of delivery of the thing to the depositary.


5. The rules laid down in this Section shall apply to special types of deposit to the extent it is not established otherwise by the provisions of other sections of this Chapter. 

 


Article 6.831. Form of a contract of deposit


1. The custody contract concluded by natural persons must be in writing if the value of the thing/things exceeds one thousand five hundred euros.


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2. If the contract of deposit provides for the depositary’s obligation to accept the thing into possession for safekeeping in future, the contract must be in writing in all cases.


3. A contract of deposit shall be recognised as having been concluded in writing if the delivery of a thing to the depositary is certified by:


1) a receipt or any other document issued by the depositary;


2) a token (number) or any other sign.


4. Failure to abide by the ordinary written form shall not deprive the parties of the right to rely on the evidence presented by witnesses in case of a dispute regarding the identity of the thing that has been delivered for safekeeping and restored.

 


Article 6.832. Obligations and rights of the depositary


1. The depositary must use all available means to ensure the preservation of the thing put in his possession.


2. Unless the contract establishes otherwise, the depositary shall have no right, without the depositor’s permission, to make use of the thing deposited with him or to permit the use thereof by other persons.


3. The depositary shall not have the right to require the depositor or the person to whom the thing is to be restored to prove that they are the owners of, or otherwise entitled to, the thing delivered for safekeeping.


4. The depositary must restore the thing to the depositor on demand, even before the expiry of the period of deposit.


5. The depositary shall have the right to request that the person to whom the thing is returned produce a receipt or any other document evidencing conclusion of the contract of deposit and the person’s right to withdraw the thing.

 


Article 6.833. Performance of the obligation to deliver a thing for safekeeping


1. Having undertaken to accept a thing for safekeeping, the depositary shall have no right to require the delivery of the thing to him for safekeeping.  However, the depositor, who fails to deliver the thing for safekeeping within the time period set in the contract, must indemnify the depositary for any loss incurred by the depositary due to the failure to deliver the thing, unless otherwise established in the contract. The depositor shall be released from the liability if he notifies the depositary of his refusal to deliver the thing within a reasonable time.


2. Unless otherwise established in the contract, the depositary shall have the right to refuse to accept the thing for safekeeping if it has not been delivered to him within the time period set in the contract.


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Article 6.834. Period of deposit


1. The depositary must preserve the thing for the period of deposit set in the contract.


2. Where the period of deposit is not set in the contract and cannot be set under the conditions of the contract, the depositary must preserve the thing until the restoration thereof is demanded by the depositor or any other person entitled to withdraw the thing.


3. Where it is stipulated that the period of deposit expires from the moment the restoration of the thing is demanded, the depositary shall be entitled, upon the expiration of the time period of deposit customary under the conditions, to demand that the depositor withdraw the thing within a reasonable time from the receipt of such a notice. In case of failure by the depositor to withdraw the thing, the rules set in Article 6.843 of this Code shall apply.

 


Article 6.835. Mixing of things

In the cases specified in the contract of deposit, things delivered for safekeeping may be mixed with other things of the same type and quality delivered for deposit by other persons.   In such cases, the depositor shall be restored the quantity of the things of the same type and quality which is provided for in the contract.

 


Article 6.836. Conditions of safekeeping of a thing


1. The depositary must preserve the thing in accordance with the conditions of safekeeping set in the contract.  Where the conditions of safekeeping are not set in the contract or not all conditions are set, the depositary must preserve the thing under such conditions which would ensure maximum protection of the thing.


2. In all cases, the depositary must ensure that he complies with the requirements for implementation of safety measures (fire-prevention, sanitary, etc.), laid down in laws and other legal acts.


3. In case of gratuitous deposit, the depositary must take as much care of the thing as he would take of his own things.


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Article 6.837. Change of the conditions of safekeeping


1. If a change of the conditions of safekeeping is necessary, the depositary must forthwith notify the depositor thereof and receive his instructions. Where an immediate change of the conditions of safekeeping is necessary in order to avoid the perishing or damage of the thing, the depositary shall have the right to change the manner, place and other conditions of safekeeping without the depositor’s instructions.


2. If a thing is in danger of perishing or if a thing is delivered for safekeeping in a damaged condition, also if there are other circumstances which preclude guaranteeing safety of the thing, whereas the depositor may not be expected to take urgent measures, the depositary shall be entitled to sell the thing or a part thereof at the market price of the locality of deposit. If the specified circumstances occur for reasons for which the depositary is not liable, he shall have the right to claim reimbursement of the costs relating to the sale of the thing.  

 


Article 6.838. Safekeeping of hazardous things


1. Flammable, explosive or other hazardous things may be at any time rendered harmless or destroyed by the depositary. The depositor shall not be indemnified for the losses incurred by reason thereof, if the depositor did not notify the depositary of the hazardous qualities of the things when delivering the hazardous things for safekeeping. In such cases, the depositor shall be liable for the losses caused to the depositary and third persons due to the safekeeping of such things.


2. Where hazardous things are delivered for safekeeping to a professional depositary, the rules of paragraph 1 of this Article shall apply only in the cases where the things were delivered for safekeeping under an incorrect name and at the moment of acceptance thereof the depositary could not determine the hazardous qualities of the things from their external examination.


3. Where deposit is for remuneration, the payment made to the depositary in the cases provided for in paragraphs 1 and 2 of this Article shall not be refunded, and where no payment was made, the depositary shall be entitled to recover the full amount thereof from the depositor.


4. If the depositary accepts the hazardous things specified in paragraph 1 of this Article for safekeeping knowing of the hazardous qualities thereof, the depositary shall be entitled to render the things harmless or destroy them without indemnifying the depositor for the losses if danger arises to the life or property of the depositary or third persons and the depositor fails to meet the depositary’s demand for immediate withdrawal of the things. In such cases, the depositor shall not be liable to the depositary and third persons for the losses incurred by them due to the safekeeping of such things.


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Article 6.839. Transfer of things for safekeeping to a third person


1. Unless the contract of deposit establishes otherwise, the depositary shall have no right to transfer the things for safekeeping to a third person without the depositor’s consent, except in cases where the interests of the depositor have to be safeguarded due to the circumstances that have arisen and the depositary has no possibilities to obtain the depositor’s consent.


2. Having transferred the things for safekeeping to a third person, the depositary must forthwith notify the depositor thereof.


3. Transfer of the things to a third person for safekeeping shall preserve the validity of the contract of deposit between the depositor and depositary. The depositary shall be liable to the depositor for the actions of the third person.

 


Article 6.840. Remuneration for deposit


1. Where the contract of deposit is onerous, the depositor must pay the depositary a remuneration upon the termination of safekeeping. The parties may agree that payment of the remuneration will be made in instalments upon the expiration of the time period set in the contract.


2. Where payment of the remuneration in instalments has been agreed upon, the depositor’s failure to effect payment for more than one period shall entitle the depositary to terminate the contract and demand from the depositor immediate withdrawal of the thing.


3. If the contract of deposit expires before the date set in the contract due to the circumstances for which the depositary is not responsible, he shall be entitled to the portion of remuneration corresponding to the duration of safekeeping and, in cases provided for in paragraph 1 of  Article 6.838 of this Code, to the full amount of the remuneration. Where the contract of deposit expires due to the circumstances for which the depositary is responsible, he shall have no right to demand payment of remuneration and must refund the depositor the amounts paid.


4. In case of failure by the depositor to withdraw the thing upon the expiration of the period of deposit, he must pay an appropriate remuneration for further safekeeping of the thing. The above rule shall also apply where the depositor must withdraw the thing prior to the expiry of the period of the contract of deposit.


5. The depositary shall have the right to retain the thing delivered to him for safekeeping until he is paid the full amount of the remuneration by the depositor.


6. The rules of this Article shall apply unless the contract of deposit establishes otherwise.


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Article 6.841. Reimbursement of expenses related to safekeeping


1. Unless the contract of deposit establishes otherwise, the depositary’s expenses related to the safekeeping of the thing shall be entered in the remuneration for deposit.


2. If the contract of deposit is gratuitous, the depositor must reimburse the depositary for the necessary expenses related to safekeeping, unless otherwise established by the law or the contract.

 


Article 6.842. Extraordinary expenses of deposit


1. The depositary shall be reimbursed for the expenses of deposit which are in excess of the regular expenses of such type of deposit and which could not have been foreseen by the parties at the moment of conclusion of the contract of deposit (extraordinary expenses), provided that the depositor gave his consent to incurring such expenses or subsequently approved such expenses, as well as in other cases provided for in the contract of deposit.


2. Where it is necessary to incur extraordinary expenses, the depositary must notify the depositor thereof and obtain his consent.  In case of failure by the depositor to give his response to the depositary within a reasonable time, consent to incur extraordinary expenses shall be deemed to have been granted.


3. If the depositary incurs extraordinary expenses without the depositor’s consent where such consent could have been obtained and the depositor has not approved the expenses, the depositary shall have the right to demand reimbursement for the extraordinary expenses only taking into account the amount of the damage that could have been caused to the thing preserved if the extraordinary expenses had not been incurred.


4. Unless otherwise established in the contract of deposit, reimbursement for the extraordinary expenses shall be paid separately from the remuneration for deposit.

 


Article 6.843. Depositor’s obligation to withdraw the thing


1. Upon the expiry of the period of the contract of deposit as well as of the period fixed by the depositary for withdrawing the thing, the depositor must forthwith withdraw the thing delivered for safekeeping.


2. In case of failure by the depositor to withdraw the thing, the depositary shall have the right, upon giving the depositor a written notice to that effect, at his own discretion sell the thing in his custody for the market price of the locality of safekeeping. If the value of the thing in custody exceeds six hundred euros, the depositary shall have the right to sell it only by auction. 


3. The proceeds from sale of the thing shall be transferred to the depositor upon deducting therefrom the amounts due to the depositary.


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Article 6.844. Depositary’s obligation to restore the thing


1. The depositary must restore to the depositor or any other person authorised by him the identical thing that was delivered to the depositary for safekeeping, save for the exceptions provided for in Article 6.835 of this Code.


2. The thing must be restored in the same condition in which it was handed over for safekeeping, having regard to its normal wear and tear, amortisation or change due to its natural qualities.


3. Unless otherwise established by the contract of deposit, the depositary must restore to the depositor, together with the thing, the fruits and revenues received therefrom in the course of its safekeeping.


4. The thing must be restored at the place where it was handed over for safekeeping, unless the contract establishes otherwise. Where the contract of deposit is gratuitous, the cost of restoration of the thing shall be borne by the depositor. Where the contract of deposit is onerous, the cost of restoration of the thing shall be borne by the depositary.

 


Article 6.845. Grounds for the depositary’s liability


1. The depositary shall be liable for the loss, shortage or damage of the things delivered to him.


2. Where the contract of deposit is onerous, the depositary shall be in all cases liable for the loss, shortage or damage of the things delivered to him, unless it was caused by force majeure. Where the contract of deposit is gratuitous, the depositary shall be liable only if he is at fault.


3. A professional depositary shall be liable in all cases, except where the thing was lost or damaged due to or by force majeure.


4. The depositary shall be liable for the loss, shortage or damage of the thing after the arising of the depositor’s obligation to withdraw the thing only where there has been the depositary’s malice or gross negligence. 


5. Where the depositary’s heir or other legal representative sells the thing delivered for safekeeping without knowing or ought to have known that the thing is not in the depositary’s ownership, the heir or other legal representative must return only the price he has received or assign to the depositor his claim against the buyer in good faith if the price has not been paid.


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Article 6.846. Amount of the depositary’s liability


1. The depositary must compensate the depositor for any damage connected with the loss, shortage or damage of the thing.


2. Where the contract of deposit is gratuitous, the depositary shall be liable for:


1) the loss or shortage of the thing in the amount of the value of the thing or of the missing part thereof;


2) the damage of the thing in the amount of the reduction of the value of the thing.


3. Where, due to the damage of the thing for which the depositary is liable, the value thereof has been reduced to the extent that it may no longer be used for its previous purpose, the depositor shall have the right to refuse withdrawing the thing and to demand that the depositary compensate for the value of the thing and for all losses, unless otherwise established by the contract.

 


Article 6.847. Compensation for damage inflicted on the depositary

The depositor must compensate for the damage inflicted on the depositary due to the qualities of the thing kept in custody if the depositary was not aware and could not have been aware of those qualities when accepting the thing for safekeeping, whereas the depositor was aware or ought to have been aware thereof.

 


Article 6.848. Termination of the contract of deposit on the depositor’s demand

The depositor shall have the right to demand, at any time, restoration of the thing, whereas the depositary must restore it even before the expiry of the period of the contract of deposit.

 


Article 6.849. Necessary deposit


1. Necessary deposit shall take place where a person is compelled, by an unforeseen and unavoidable urgent necessity (accident, natural disaster, etc.) to entrust the custody of his property to another person.


2. In case of a necessary deposit, the depositary may not refuse to accept the thing for safekeeping without a serious reason. 


3. In case of a necessary deposit, the depositary shall be liable in the same manner as a depositary under the contract of gratuitous deposit.


4. The delivery of a patient’s things to a health or guardianship/curatorship institution shall be presumed to be a necessary deposit.

 


Article 6.850. Deposit under law

The rules of this Section shall also apply with respect to deposit obligations which arise under law, unless the law establishes otherwise.

 


SECTION TWO

WAREHOUSING


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SECTION TWO

WAREHOUSING

 


Article 6.851. Concept of a warehouse contract


1. Under a warehouse contract, the warehouse (the warehouse-keeper) shall undertake to safeguard for consideration the goods deposited with it/him by the owner/depositor of the goods and to restore them to the specified person after safekeeping.


2. For the purposes of this Section, the warehouse shall be considered to be a legal person (entrepreneur) whose principal type of activity is safekeeping of goods and provision of other services connected with the safekeeping of goods.


3. The warehouse contract shall be executed by issuing a warehouse certificate.

 


Article 6.852. Warehouse of common use


1. Only a warehouse which is bound, under law or documents relating to its activities, to accept goods for safekeeping from any owner of the goods shall be recognised as a warehouse of common use.


2. The contract of safekeeping of goods deposited with a public warehouse of common use shall be recognised as a public contract.

 


Article 6.853. Inspection of goods


1. Unless otherwise provided for in the warehouse contract, the warehouse must inspect, at its own expense, the goods when accepting them for safekeeping and determine the amount of the goods (number, volume, weight, etc.) as well as assess the outward appearance thereof.


2. During the safekeeping of good, the warehouse must provide the owner of the goods with an opportunity to examine the goods in storage, take samples thereof and apply other measures necessary for ensuring the safety of the goods.

 


Article 6.854. Changing the conditions of safekeeping of goods


1. If the conditions of safekeeping of goods set in the warehouse contract require changing in order to ensure safety of the goods, the warehouse shall be entitled to apply the necessary measures at its discretion. Where this necessitates material changes in the conditions of safekeeping laid down in the warehouse contract, the warehouse must notify the owner of the goods accordingly.


2. If changes which are not provided for in the warehouse contract are detected in the stored goods during their safekeeping, the warehouse must promptly draw up an appropriate record, notifying the owner of the goods thereof on the same day.


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Article 6.855. Inspection of the released goods


1. The person to whom the goods are released and the warehouse shall have the right to demand to examine the goods being released and to inspect their quantity. Expenses related to the inspection shall be defrayed by the party demanding to examine or inspect the goods.


2. Where the released goods have not been examined and inspected in the presence of both parties, a written statement regarding the shortage or damage of the goods must be submitted at the time of release of the goods or within three days from the release thereof, provided the shortage or damage could not have been detected by normal examination of the goods.   In such case, the burden of proof of the shortage or damage of the goods shall fall on the person to whom the goods are released.


3. In the absence of the statement provided for in paragraph 2 of this Article, the warehouse shall be deemed to have released the goods in accordance with the conditions of the warehouse contract, until it is proved to the contrary.

 


Article 6.856. Warehousing documents


1. Having received the goods for safekeeping, the warehouse shall issue one of the following documents confirming the warehouse contract:


1) a double warehouse certificate;


2) an ordinary warehouse certificate;


3) a warehouse receipt.


2. A double warehouse certificate shall consist of two parts, i.e. a warehouse certificate and a pledge certificate (Article 6.857 of this Code), which shall be separable.


3. A double warehouse certificate, each one of its two parts, and an ordinary warehouse certificate shall be securities. 


4. Goods received for safekeeping with a double warehouse certificate, if the parts thereof have been separated, or with an ordinary warehouse certificate may be an object of pledge during the period of safekeeping by way of pledging the corresponding certificate.


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Article 6.857. Double warehouse certificate and its content


1. The following must be indicated in each part of the double warehouse certificate:


1) the name and place of the warehouse;


2) the number of the warehouse certificate;


3) the name and registered office of the owner/depositor of the goods;


4) the name and quantity of the goods (units, weight, volume, etc.) and, in case the goods have been an object of pledge, the amount of the pledge;


5) the time period of safekeeping of the goods or instruction for their safekeeping until the demand for their release;


6) the amount of remuneration for the deposit or the tariffs on the basis of which it is to be calculated and the procedure of payment for deposit;


7) the date of issue of the warehouse certificate.


2. A document shall not be deemed to be a double warehouse certificate if at least one of the requisite items listed in paragraph 1 of this Article is missing.


3. A double warehouse certificate shall be a document of title granting the right to dispose of the goods.

 


Article 6.858. Rights of the holder of warehouse and pledge certificates


1. The holder of a warehouse and pledge certificate shall be entitled to dispose of the goods in storage in the warehouse.


2. The holder of a warehouse certificate which has been separated from the pledge certificate shall be entitled to dispose of the goods, however he shall have no right to reclaim the goods from the warehouse until the repayment of the credit granted against the pledge certificate.


3. The holder of a pledge certificate shall have the right of pledge on the goods in an amount equal to the sum of the credit granted against the pledge certificate and the interest thereon. When the goods are being pledged, a notice to that effect shall be made in the warehouse certificate.

 


Article 6.859. Transfer of warehouse and pledge certificates   

Warehouse and pledge certificates may be transferred to another person either together or separately by way of inscriptions of transfer (on the basis of endorsement).


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Article 6.860. Release of goods under the double warehouse certificate


1. The warehouse shall release the goods to the holder of the warehouse and pledge certificate (double warehouse certificate) only in exchange for both of these certificates together.


2. The holder of the warehouse certificate who does not have a pledge certificate but has paid the amount of debt on it, shall be released the goods by the warehouse in exchange for the warehouse certificate and a receipt evidencing payment of the full amount of the debt.


3. If the warehouse releases the goods in violation of the rules laid down in this Article, it must pay to the holder of the pledge certificate the entire amount secured by the pledge.


4. The holder of the warehouse and pledge certificates shall be entitled to demand that goods be released to him in parts. In such cases, in exchange for the original certificates, new certificates shall be issued to him for the goods remaining in the warehouse.

 


Article 6.861. Ordinary warehouse certificate


1. An ordinary warehouse certificate shall be a bearer instrument granting the bearer the right to the release of the goods.


2. An ordinary warehouse certificate must contain the particulars provided for in points 1, 2, and 4 to 7 of paragraph 1 of Article 6.857 of this Code as well as an indication that it has been issued to the bearer.

 


Article 6.862. Deposit of things with the right of their disposal

If the law or the contract establishes the right of the warehouse to dispose of the things deposited for safekeeping, the rules regulating the loan contract (Chapter XLIII of this Code) shall also apply to the relationships between the parties, however, the place and time of release of the things shall be governed by the provisions of this Chapter.

 


SECTION THREE

SPECIAL TYPES OF DEPOSIT


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SECTION THREE

SPECIAL TYPES OF DEPOSIT

 


Article 6.863. Temporary deposit (sequestration) of things which are the object of a dispute


1. Sequestration shall be a contract of deposit by which two or more persons who are in dispute over the right to a thing place the thing in the hands of another person chosen by them (sequestrator).   This person shall undertake to restore the thing, upon the resolution of the dispute, to the person who will then be entitled to it.


2. The object of sequestration may be an immovable thing as well as a movable thing.


3. The parties shall select the sequestrator by mutual agreement. They may select a party to the dispute to act as sequestrator. Where the parties disagree on the selection of the sequestrator, he shall be appointed by the court hearing the dispute. A person may be appointed sequestrator only with his consent.


4. The sequestrator shall have the right to perform any necessary acts in respect of the sequestered thing which may be performed by a simple property administrator, save for the exceptions established by agreement between the parties or a court ruling.


5. The sequestrator shall be entitled to remuneration unless otherwise stipulated by the contract or a court ruling.


6. The sequestrator shall restitute the thing to the person specified in the court judgment or ruling.  If the parties enter into a settlement agreement, the thing shall be restored to the persons specified in the settlement agreement.


7. Upon the termination of sequestration, the sequestrator must render an account of his management of the property and deliver it to the parties or the court.


8. Where a person is appointed sequestrator of the attached property by the court, the bailiff, the tax administrator or any other officer, the sequestration shall be subject, in addition to the provisions of this Article, to those laid down in the Code of Civil Procedure.


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Article 6.864. Deposit of things with a pawnshop


1. A contract for depositing things owned by a natural person with a pawnshop shall be a public contract.


2. A contract for depositing things with a pawnshop shall be certified by a pawn ticket issued to the pawnor.


3. The price of the things deposited with the pawnshop shall be set by agreement between the parties.


4. The pawnshop must insure, at its own expense and for the benefit of the pawnor, the thing deposited with it for the amount equal to the price of the thing set by agreement between the parties.


5. Where a thing deposited with the pawnshop is not redeemed within the time period set in the contract, the pawnshop must keep the thing for one more month at the pawnor’s expense. Upon the expiration of the said time period, the pawnshop shall have the right to sell the thing in the manner laid down in paragraph 2 of Article 6.843 of this Code.


6. The proceeds of such sale shall be used to cover the expenses of the pawnshop which may have arisen in relation to the storing of the thing and other amounts due to it, while the balance shall be repaid by the pawnshop to the pawnor.


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Article 6.865. Deposit of things with hotels


1. A hotel shall be liable, without a special agreement with the person who lodges with it, in the same manner as a depositary, for the loss, shortage or damage of the personal effects of the said person.  The hotel shall be entitled to retain, as security for payment of the cost of lodging and services actually provided by the hotel, the personal effects brought into the hotel by the guest.


2. Under paragraph 1 of this Article, the hotel shall be liable for the loss, shortage or damage of the things which:


1) were kept in the hotel room or at any other place in the hotel during the person’s lodging with the hotel;


2) were entrusted by the hotel guest as deposit to the hotel staff for safekeeping within the hotel or outside it;


3) were placed as deposit with the hotel for a reasonable time starting from the moment the person takes up lodging with the hotel and after his departure.


3. Where the property has not been deposited with the hotel, with the exception of the cases where the hotel has refused to accept the property which the hotel is bound to accept for safe custody, the civil liability for the loss, shortage or damage of the personal effects of a person who lodges with it shall be limited to the price, multiplied by one hundred, paid for the overnight lodging at the hotel by that person. The civil liability for the loss, shortage or damage of one thing of a person who lodges with the hotel shall be limited to the price, multiplied by fifty, paid for the overnight lodging at the hotel by that person. 


4. The hotel shall be liable and its civil liability shall not be limited pursuant to paragraph 3 of this Article where the damage, destruction or loss of the property is caused through the fault of the hotel or any person for whose actions the hotel is responsible


5. The hotel must accept for deposit sums of money, jewellery and other valuables brought by the persons who lodge with it, unless the things are dangerous to the people around or, by reason of their large size or excessive value, are cumbersome to the hotel and its guests.


6. A hotel, accepting for deposit sums or money or other valuables, shall have the right to require them to be properly packaged and marked.


7. Unless the hotel administration is immediately notified by the person lodging with the hotel of the disappearance, shortage, damage or destruction of his things, the hotel shall be released from liability for failure to preserve the things.


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8. The hotel shall not be liable for failure to preserve the things if this was due to the fault of the owner of the things, the persons accompanying him or invited to the hotel or due to force majeure or because of the properties of the thing. Neither shall the hotel be liable for failure to preserve the vehicles of the hotel guests left outside the hotel’s guarded parking lot, and the things or animals left in the said vehicles.


9. An agreement between the parties or a unilateral statement by the hotel that the hotel is not liable for the safety of the things of its guests or establishing a limited liability shall be null and void.  The limited liability of the hotel shall be defined in paragraph 3 of this Article.


10. The rules of this Article shall also apply to the deposit of things with motels, rest homes, residential care homes, sanatoria and other similar institutions.


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Article 6.866. Deposit of things with a bank


1. A bank shall have the right to accept for deposit securities, precious metals and precious stones, other valuables and documents.


2. The contract of deposit of things with a bank shall be certified by the storage certificate issued to the depositor by the bank. 

 


Article 6.867. Deposit of valuables in an individual bank safe


1. The contract of deposit may provide for the safekeeping of the client’s valuables in an individual bank safe/safe deposit box or an isolated vault of the bank allotted for use by the client.


2. Under the contract of deposit of valuables in an individual bank safe, the client shall have the right to place the valuables in the safe and take them from the safe by himself. The bank shall issue the client with the key to the safe and the client’s identification card or any other document certifying the client’s right to enter the bank depository where the client’s individual safe is located and to open the safe.


3. The contract of deposit may also provide for the client’s right to work in the bank with the valuables deposited in the individual bank safe.


4. The bank shall accept from the client the valuables to be deposited in the safe and shall also supervise their placement in and withdrawal from the safe and shall hand over to the client the valuables taken from the safe. Where the contract stipulates that the client uses the individual safe personally, the bank must ensure that the client is able to place the valuables in the safe and withdraw them from the safe unattended by anyone, bank employees included. The bank must also ensure the client’s free entry into the bank depository where his individual safe is located. 


5. Unless otherwise provided by the contract of deposit, the bank shall be released from liability for the failure to preserve the valuables placed in the individual safe if it proves that under the conditions of safekeeping, no person was allowed access to the contents of the safe without the client’s knowledge or that the valuables were lost due to force majeure.


6. Where, under the contract, the individual safe is allotted for use to another person and the liability of the bank for the preservation of the valuables placed in the safe is not established, the rules regulating the contract of lease shall apply to the contract of this type.


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Article 6.868. Deposit of things in left luggage offices of transport companies


1. General use left luggage offices of transport companies must accept for safekeeping personal effects of passengers and other persons, irrespective of whether or not the passenger possesses travelling tickets. The contract of deposit in left luggage offices of transport companies shall be a public contract.


2. Conclusion of the contract of deposit in a left luggage office, except for automatic safety deposit boxes, shall be confirmed by issuing the depositor with a receipt or token.  In case of loss of the receipt or token, the thing shall be released to the depositor after he proves his ownership of the thing.


3. The time period of safekeeping of the thing in the left luggage office shall be set by agreement between the parties. Transport companies shall have the right to set maximum time periods for the safekeeping with possible extension by agreement between the parties. Things that are not retrieved within the set period shall be stored for one more month and thereafter sold in accordance with the procedure established in paragraph 2 of Article 6.843 of this Code.


4. In case of loss, shortage or damage of the things deposited for safekeeping, the transport company must, within twenty-four hours after the filing of the claim, compensate for the value specified when the depositor delivered the things for safekeeping.

 


Article 6.869. Deposit of things in the cloakroom


1. It shall be presumed that the safekeeping of things in cloakrooms is gratuitous, except in cases when the things are delivered upon explicit agreement of deposit for remuneration.


2. Irrespective of whether the contract of deposit is onerous or not, the depositary must take all measures within his power in order to ensure the safekeeping of the things delivered to the cloakroom.


3. The rules of this Article shall also apply in the cases when natural persons leave their outer clothing, headgear and other similar things in enterprises, institutions, organisations or means of transport in the places designated for that purpose without a special delivery thereof for safekeeping.

 


CHAPTER XLIII

LOAN

 


SECTION ONE

GENERAL PROVISIONS


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CHAPTER XLIII

LOAN

 


SECTION ONE

GENERAL PROVISIONS

 


Article 6.870. Concept of a loan agreement


1. Under a loan agreement, one party (the lender) shall transfer into the ownership of the other party (the borrower) money or consumable generic things, and the borrower shall undertake to repay the lender the same amount of money (the amount of the loan) or return the same amount of things of the same kind and quality, and to pay the interest unless otherwise established in the agreement.


2. The loan agreement shall be deemed concluded from the moment of transfer of money or things.


3. The borrower shall become the owner of the things/money transferred to him. From the moment of transfer of the things, the risk of accidental loss or damage of the things shall pass to the borrower.

 


Article 6.871. Form of a loan agreement


1. The loan agreement of natural persons must be made in writing if the amount of the loan exceeds six hundred euros.


2. If the lender is a legal person, the loan agreement must be made in writing in all events notwithstanding the amount of the loan.


3. The requirements of a written form shall be satisfied by a loan receipt or any other debt instrument, signed by the borrower, confirming the transfer of the subject matter of the loan agreement to the borrower.


4. Where the amount of the loan exceeds three thousand euros and the transaction is made in cash, the loan agreement must be drawn in the notarial form.

 


Article 6.872. Interest


1. The amount of interest on the use of the amount of loan and the procedure of payment thereof shall be established by agreement between the parties. If the parties have not agreed on the amount of interest, the interest shall be determined based on the average interest rate of commercial banks of the place of residence or business of the borrower which existed at the moment of conclusion of the loan agreement.


2. Except when otherwise agreed by the parties, the interest shall be paid on a monthly basis until repayment of the amount of the loan.


3. It shall be presumed that the loan agreement is gratuitous if the subject matter of the loan agreement comprises generic things, unless otherwise established in the loan agreement. If the subject matter of the loan agreement is money, the loan agreement shall be presumed to be onerous.


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Article 6.873. Obligation of the borrower to repay the amount of the loan


1. The borrower must repay the received loan to the lender at the time and in accordance with the procedure laid down in the agreement.


2. In cases when the term for repayment of the amount of the loan is not set forth in the agreement or the loan is to be repaid upon demand, the borrower must repay the amount of the loan within thirty days from the day when the lender made the demand for performance of the agreement, unless otherwise established in the agreement.


3. Unless the loan agreement provides otherwise, the borrower shall be entitled to repay the amount of the gratuitous loan prior to the term.    


4. The amount of the non-gratuitous loan may be repaid by the borrower prior to the term only upon consent of the lender.


5. Unless otherwise prescribed by the loan agreement, the amount of the loan shall be deemed repaid from the moment of its transfer to the lender or crediting to the bank account of the lender.


6. When the subject matter of the loan is an amount of money, the borrower must repay a nominal amount only, notwithstanding the changes of the value of a monetary unit, unless otherwise established in the agreement.

 


Article 6.874. Consequences of the breach of the agreement by the borrower


1. In case of failure by the borrower to timely repay the amount of the loan, the borrower must pay the interest established in Article 6.210 of this Code from the day when the amount of the loan had to be repaid until the day of its actual repayment, notwithstanding the payment of the interest set forth in Article 6.37 of this Code, unless otherwise established in the loan agreement.


2. If the loan agreement provides for repayment of the amount of the loan in instalments and a regular instalment is not repaid when due, the lender shall be entitled to demand repayment of all the outstanding amount of the loan together with the accrued payable interest.


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Article 6.875. Contesting of the loan agreement


1. The borrower shall have the right to contest the loan agreement if he has not actually received the money or things, or if he has received less than specified in the agreement.  Such circumstances must be proved by the borrower.


2. If the loan agreement had to be made in writing (Article 6.871 of this Code), it shall not be permitted to contest the loan agreement subject to the testimony of witnesses in accordance with paragraph 1 of this Article, except for the cases stipulated in Article 1.93 of this Code or if the loan agreement is concluded by fraud, compulsion or real threat, or by virtue of wilful arrangement of the borrower’s agent with the lender, or due to existing grave circumstances.


3. If it is proved that money or things have not actually been transferred to the borrower, the loan agreement shall be deemed not concluded. When the borrower has received less money or things than provided for in the agreement, the loan agreement shall be deemed concluded for the actually received amount of money or things.

 


Article 6.876. Legal consequences of the loss of security for fulfilment of the borrower’s obligations

If the borrower fails to fulfil the obligation under the loan agreement to provide the security for the fulfilment of his obligations or if the provided security is lost or its conditions deteriorate due to the circumstances beyond the lender’s control, the lender shall be entitled to request the borrower to repay the amount of the loan prior to the term as well as to pay the interest, unless otherwise established in the loan agreement.

 


Article 6.877. Purpose loan


1. Where the loan agreement is concluded with the provision that the borrower will use the amount of the loan for a certain purpose (the purpose loan), the borrower must ensure that the lender is able to control the usage of the amount of the loan by the borrower.


2. If the borrower uses the amount of the loan for a purpose other than that set forth in the loan agreement or if he breaches the condition established in paragraph 1 of this Article, the lender shall be entitled to request the borrower to repay the amount of the loan prior to the term and pay the interest, unless the agreement provides otherwise.

 


Article 6.878. Bill of exchange

If the borrower issues a bill of exchange under which he undertakes to repay the received amount of the loan on the term specified in such note, the relations between the parties shall be governed by the provisions of this Chapter to the extent such provisions do not contradict the law regulating the bills of exchange.


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Article 6.879. Bond


1. In cases provided by laws, a loan agreement may be concluded by issuing and selling bonds.


2. A bond shall be deemed a security which confirms its holder’s right to receive from the person who has issued such bond, within the term specified in the bond, the amount of the nominal value of the bond or any other property equivalent. A bond shall also grant its holder the right to receive the interest specified in the bond on the nominal value of the bond or other property rights. 


3. The provisions of this Chapter shall apply to the relations between the person who has issued the bond and the holder of the bond only if the laws do not prescribe otherwise.

 


Article 6.880. Substitution (novation) of the debt by the loan obligation

By agreement of the parties, the debt arising from the purchase and sale, lease or any other contract may be substituted by the loan obligation according to the rules set forth in Articles 6.141 to 6.144 of this Code.

 


SECTION TWO

CREDITING

 


Article 6.881. Concept of a crediting agreement


1. Under a crediting agreement, a bank or any other credit institution (the creditor) shall undertake to grant to the borrower monetary funds (the credit) in the amount and under the terms and conditions established in the agreement, and the borrower shall undertake to repay the received amount to the creditor and pay the interest.


2. The provisions of Section One of this Chapter shall apply to crediting relations to the extent they do not contradict the essence of the crediting agreement and the rules set forth in the present Section.

 


Article 6.882. Form of a crediting agreement

The crediting agreement must be made in writing. Failure to comply with this requirement shall make the crediting agreement null and void.

 


Article 6.883. Refusal to grant or accept the credit


1. The creditor shall be entitled to refuse to grant to the debtor, in full or in part, the credit provided for in the agreement upon disclosure of the circumstances expressly evidencing that the credit will not be repaid in due time.


2. The borrower shall be entitled to refuse to accept the credit, in full or in part, upon notification of the creditor to that effect before the term set forth in the agreement for granting of the credit, unless otherwise established in the agreement.


3. If the borrower breaches the obligation for the purposive usage of the credit as established in the agreement (Article 6.877 of this Code), the creditor shall be entitled to refuse to continue crediting the borrower and demand repayment of the granted credit prior to the term.


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Article 6.884. Crediting with goods


1. The parties may enter into an agreement on crediting with goods establishing an obligation of one party to transfer to the other party the generic things. Such agreement shall be subject to the provisions of this Section, unless otherwise specified in the agreement between the parties.


2. The quantity, assortment, completeness, quality, containers and packaging of the goods to be transferred shall be determined in accordance with the rules of Articles 6.327 to 6.333 of this Code, unless otherwise stipulated by the agreement of the parties and this is not contrary to the essence of the agreement.

 


Article 6.885. Commercial crediting


1. In an agreement the performance whereof is related to the transfer into the ownership of the other party of money or generic things, the parties may provide for the granting of the credit. The credit may be granted by deferring or apportioning the advance payment, payment for goods, works or services (commercial crediting).


2. The relations of the commercial crediting shall be subject to the provisions of this Section, unless otherwise stipulated by the agreement of the parties and this is not contrary to the essence of the agreement.   

 


SECTION THREE

CONSUMER CREDIT

 


Article 6.886. Concept of a consumer credit agreement


1. Under a consumer credit agreement, the creditor shall grant or promise to grant to the borrower credit in the form of a deferred payment, loan or other similar financial accommodation, except for agreements for the continued provision of services of the same kind or for the supply of goods of the same kind, where the borrower pays for such services or goods for the duration of their provision or supply by means of instalments.


2. When providing a consumer credit service, the creditor must ensure the adequate implementation of the principle of responsible lending.


3. Relationships pertinent to consumer credit shall be regulated by this Code and other laws.


4. Under this Article, the creditor shall be a person who, in accordance with the procedure and in the cases laid down by law, grants or promises to grant consumer credit in the course of his commercial practices.

 

Article 6.887. No longer effective from 1 April 2011.

 

Article 6.888. No longer effective from 1 April 2011.

 

Article 6.889. No longer effective from 1 April 2011.

 

Article 6.890. No longer effective from 1 April 2011.

 

Article 6.891. No longer effective from 1 April 2011.

 


CHAPTER XLIV

BANK DEPOSIT


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CHAPTER XLIV

BANK DEPOSIT

 


Article 6.892. Concept of a bank deposit agreement


1. Under a bank deposit agreement (the deposit), one party (a bank or any other credit institution) shall undertake to accept from the other party (the depositor) or, having received the amount of money (deposit) transferred to the other party, shall undertake to return such deposit and pay interest on it under the terms and procedure established in the agreement.


2. When the depositor is a natural person, the bank deposit agreement shall be deemed a public contract.


3. The relations between the bank or any other credit institution and the depositor, who has an account in which the deposit has been entered, shall be governed by the provisions of Chapter XLVI of this Book regulating the bank account agreement, unless the rules of the present Chapter provide otherwise and this is not contrary to the essence of the bank deposit agreement.

 


Article 6.893. Right to accept deposits


1. The right to accept deposits shall be vested only in the banks or any other credit institutions having the permit (licence) issued for such activity in accordance with the procedure prescribed by laws.


2. If the deposit was accepted by a person not entitled to do so or if the deposit was accepted in violation of the operational rules of the banks, the depositor shall have the right to demand immediate repayment to him of all the paid amounts, the interest determined by laws and damages to the extent not covered by the interest.


3. Unless the law provides otherwise, the legal consequences set forth in paragraph 2 of this Article shall also apply when:


1) the monetary funds are collected from the sale of shares or other securities the issue whereof is recognised as unlawful;


2) the monetary funds are collected from the issue of bills of exchange or other securities and their holders are not granted the right to receive the monetary funds on first demand.   

 


Article 6.894. Form of a bank deposit agreement


1. The bank deposit agreement must be made in writing.


2. The depositor’s book, the deposit certificate or any other document issued by a bank or any other credit institution, which complies with the operational rules of  banks or other credit institutions, shall be recognised as a written form of the agreement.


3. If the written form is not observed, the bank deposit agreement shall be null and void.


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Article 6.895. Types of deposits


1. The bank deposit agreement may include the obligation of the bank or any other credit institution to pay the deposit on first demand (demand deposit) or the obligation of the bank or any other credit institution to pay the deposit after the lapse of a certain term (fixed-term deposit).


2. The legal acts regulating the activities of the banks or any other credit institutions and the parties by agreement may also provide for other types of deposits.


3. Notwithstanding the type of the deposit, the bank or any other credit institution must pay the deposit in full or in part on the first demand of the depositor. The provision of the agreement stipulating the depositor’s waiver of the right to withdraw the deposit on first demand, with the exception of irrevocable fixed-term deposits, shall be null and void.


4. The irrevocable fixed-term deposit shall not grant the depositor the right to withdraw the deposit or part thereof before the expiry of the term specified in the agreement, except in the cases specified in Article 6.8951 of this Code.  Prior to the conclusion of the irrevocable fixed-term deposit agreement, the bank or other credit institution must inform the depositor about the peculiarities of the irrevocable fixed-term deposit, the differences from other proposed deposits, and the conditions for the conclusion, renewal and termination of the fixed-term deposit agreement.  The obligation to prove that this information has been provided to the depositor shall be borne by the bank or any other credit institution.


5. In case when the deposit is paid to the depositor before the maturity of the term established in the agreement or prior to the occurrence of other circumstances set forth therein (except for demand deposits), the interest shall be paid in the amount corresponding to the interest on the demand deposits, unless otherwise established in the agreement.


6. If the depositor does not demand payment of the fixed-term or irrevocable fixed-term deposit after the expiry of its term, or other circumstances specified in the contract arise, the agreement shall be deemed renewed on the conditions of the demand deposit, unless otherwise established in the agreement. The depositor must express his consent to the bank or other credit institution for the renewal of each agreement on the conditions of the irrevocable fixed-term deposit at least fourteen days and not more than sixty days before the expiry of the term of the irrevocable fixed-term deposit. The obligation to prove the receipt of the depositor’s consent shall be borne by the bank or any other credit institution.


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Article 6.8951. Termination of the irrevocable fixed-term deposit agreement

In extraordinary circumstances (loss of work, serious illness, death of the depositor, his spouse, child or other close relative, or other important circumstances provided for in the contract), or in other cases with the consent of the bank or any other credit institution, the depositor, who is a consumer, shall have the right to terminate the irrevocable fixed-term deposit agreement or withdraw part of the deposit before the expiry of the term. In all such cases, the bank or other credit institution must pay out all or part of the deposit on demand by the depositor, without any additional costs arising to the depositor from the termination of the agreement.

 


Article 6.896. Interest


1. The bank or any other credit institution shall pay to the depositor the interest in the amount established in the agreement.


2. The amount of the interest may be differentiated according to the type of deposit.  It shall be prohibited to set the amount of the interest based on the depositor’s personal, official or other characteristics which are not related to the amount, type or term of the deposit.


3. Where the amount of the interest is not specified in the agreement, the bank or any other credit institution shall pay an average interest rate which existed on the day of conclusion of the agreement in the place of conclusion thereof.


4. Unless the agreement provides otherwise, the bank or any other credit institution shall be entitled to unilaterally change the amount of the interest paid for the demand deposits. If the bank or any other credit institution reduces the amount of the interest, the new interest rate shall apply in respect of the deposits paid prior to notification of the depositors about the reduction of the amount of the interest only after the lapse of one month from such notification, unless otherwise established in the agreement.


5. The bank or any other credit institution shall have no right to unilaterally reduce the amount of contractual interest paid on irrevocable fixed-term deposits.  The bank or any other credit institution shall have no right to unilaterally reduce the interest payable on other deposits (except demand deposits), unless otherwise specified by the agreement.


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Article 6.897. Calculation and payment of interest


1. Calculation of the interest on deposits shall commence from the day following the day of acceptance of the deposit and shall be calculated until the day preceding the day when the deposit is paid or written off from the account on other grounds.


2. Unless the agreement provides otherwise, the interest shall be paid to the depositor upon his demand, after the expiry of the quarter, separately from the amount of the deposit. The deposit shall be increased by the amount of the unpaid interest and the interest shall be calculated on the increased amount.


3. The deposit shall be paid together with the interest accrued until that moment.

 


Article 6.898. Guarantees for the return of deposits.


1. The bank and any other credit institution shall secure the return of deposits in accordance with the established procedure by compulsory insurance thereof and, in cases determined by laws, by other means.


2. When entering into the bank deposit agreement, the bank or any other credit institution must furnish to the depositor the information about the guarantees for the return of the deposit.


3. If the bank or any other credit institution fails to perform its obligation to secure the return of the deposit, as well as in case of loss or worsening of the guarantees, the depositor shall have the right to demand from the bank or any other credit institution immediate return of the deposit, payment of the interest and compensation for the loss.

 


Article 6.899. Right of third persons to pay money into the depositor’s account

Third persons shall have the right to pay money into the depositor’s account unless otherwise established in the agreement. In such event, the bank or any other credit institution must transfer all the amounts received on behalf of the depositor into the depositor’s account.  In such cases, it shall be presumed that the depositor has agreed to accept the amounts of money from third persons and has provided them with the necessary details of his deposit account.


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Article 6.900. Deposits for the benefit of third persons


1. A deposit may be made in the bank or any other credit institution for the benefit of a third person. Unless the agreement provides otherwise, such third person shall acquire the depositor’s rights from the moment of his first demand to the bank or any other credit institution or from the moment of any other expression of his intention to exercise the depositor’s rights.


2. The essential condition of the bank deposit agreement for the benefit of a third person shall be the name and surname or the title of the third person.


3. The bank deposit agreement for the benefit of the third person who died prior to the moment of conclusion of the agreement or did not exist at the moment of conclusion thereof shall be null and void.


4. A person who has entered into the bank deposit agreement for the benefit of a third person shall have the right to exercise the depositor’s rights only until the moment when the third person states his intention to exercise the depositor’s rights.


5. The provisions regulating the agreement for the benefit of a third person, shall apply to the deposit agreement of the bank or any other credit institution only to the extent they do not contravene the rules established in this Article and the essence of the bank deposit agreement.

 


Article 6.901. Depositor’s book


1. Unless the agreement provides otherwise, the bank deposit agreement shall be documented in the form of the depositor’s book. The depositor’s book may only be issued in the depositor’s name.


2. The depositor’s book must specify the name of the bank or any other credit institution, their address, e-delivery box address and other details, the depositor, the amount of the deposit, all terms and conditions of the agreement, as well as the accounting of the amounts of money paid into and from the account, and the computed and paid interest.


3. All operations in respect of the deposit shall be performed only upon submission of the depositor’s book.


4. If the book is lost or unfit for use, it shall be replaced in accordance with the procedure determined by the bank or any other credit institution.

 


Article 6.902. Deposit certificate


1. The deposit certificate shall be a security certifying the amount of the deposit and the depositor’s rights to the deposit, as well as the interest upon expiration of the term prescribed for the deposit.


2. The deposit certificate may only be issued in the depositor’s name.

 


CHAPTER XLV

FACTORING


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CHAPTER XLV

FACTORING

 


Article 6.903. Concept of a factoring agreement


1. Under a factoring agreement, one party (the factor) shall transfer or undertake to transfer to the other party (the client) the money in exchange for the monetary claim of the client (the creditor), related to the sale of goods, performance of works or provision of services, against a third person (the debtor), and the client shall assign or undertake to assign to the factor the monetary claim against the debtor (financing on condition that the monetary claim is assigned) and to pay the remuneration set forth in the agreement.


2. The client may assign the monetary claim against the debtor to the factor also with a view to securing the performance of his obligations to the factor.


3. The factoring agreement may establish the factor’s obligation to handle the client’s bookkeeping, provide to the client financial services related to the monetary claims which are the subject matter of the assignment.


4. The factoring agreement may be long-term or executed in respect of each individual case.

 


Article 6.904. Factor

Under a factoring agreement, the factor may be only a bank or any other profit-seeking legal person entitled to perform factoring activities in accordance with the procedure prescribed by laws.

 


Article 6.905. Subject matter of a factoring agreement


1. The subject matter of a factoring agreement in respect of which the financing is provided may be a monetary claim under which the payment term has matured (the existing claim) and a future right to receive the amounts of money (the future claim).


2. The monetary claim which is the subject matter of the factoring agreement must be defined in the agreement concluded between the factor and the client in such a way that the existing claim can be identified at the moment of conclusion of the factoring agreement and the future claim can be identified no later than at the moment when it arises.


3. By the assignment of the future monetary claim, it shall be recognised that such claim has passed to the factor upon arising of the right to claim from the debtor the amounts of money established in the agreement. If the assignment of the monetary claim is related to a certain event, the assignment shall be recognised as having occurred upon the occurrence of such event. In such cases, no additional formalisation of the assignment of the monetary claim shall be required.


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Article 6.906. Client’s liability towards the factor


1. Unless the factoring agreement provides otherwise, the client shall be liable towards the factor for the validity of the assigned monetary claim which is the subject matter of the agreement.


2. The monetary claim to be assigned shall be valid if the client has the right to assign such claim and the circumstances due to which the debtor would have the right not to satisfy the claim are unknown at the moment of the assignment.


3. If the factor demands the satisfaction of the monetary claim assigned to him and the debtor fails to satisfy it or satisfies it improperly, the client shall not be liable for such actions of the debtor, unless otherwise established in the agreement.

 


Article 6.907. Invalidity of the prohibition to assign the monetary claim


1. The assignment of the monetary claim to the factor shall be also valid in cases when the agreement made between the client and the debtor prohibits or limits such action.


2. The rule established in paragraph 1 of this Article shall not release the client from the obligations and liability towards the debtor for the breach of the condition of the agreement which prohibits or limits the assignment of the claim.

 


Article 6.908. Subsequent assignment of the monetary claim


1. Unless the factoring agreement provides otherwise, the factor shall have no right to further assign the monetary claim assigned to him.


2. If the factoring agreement permits a subsequent assignment, such assignment shall accordingly be subject to the provisions of this Chapter.

 


Article 6.909. Performance of the monetary claim


1. The debtor must pay the amounts of money to the factor if the debtor has received from the client or the factor a written notification about the assignment of the monetary claim to the factor and the notification specifies the monetary claim and the factor to whom the obligation is to be performed.


2. At the debtor’s request, the factor must provide him with evidence of the assignment of the monetary claim within a reasonable time. If the factor fails to perform this obligation, the debtor shall be entitled to perform the obligation to the client.


3. The performance of the monetary claim to the factor in accordance with the rules set forth in this Article shall release the debtor from the performance of an appropriate obligation to the client.


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Article 6.910. Factor’s rights to the amounts of money received from the debtor


1. If the financing of the client under the factoring agreement manifests itself in the purchase of the monetary claim from the client, the factor, having purchased such claim, shall acquire the right to all the amounts received from the debtor when the latter performs the demand and the client shall be liable towards the factor if the latter receives less from the debtor than he has paid to the client for the purchased claim, unless otherwise established in the agreement.   


2. If the client has assigned the monetary claim to the factor in order to secure the performance of his obligations to the factor, the factor shall submit to the client a report and transfer to him the amount in excess of the debt of the client secured in this way, unless otherwise established in the agreement. If the factor receives from the debtor a smaller amount than the client’s secured debt, the client shall be liable towards the factor for the remaining uncovered part of the debt.

 


Article 6.911. Cross claims of the debtor


1. When the factor makes a claim against the debtor for the payment of money, the debtor shall be entitled to set off his cross monetary claims, arising from the agreement between the debtor and the client, provided that the debtor already had such claims at the moment of receipt of notification of the assignment of the claim to the factor.


2. The debtor may not use for his defence against the factor the claims which the debtor could have bought against the client due to the client’s breach of the prohibition to assign the monetary claim.

 


Article 6.912 Repayment to the debtor of the debts received by the factor


1. When the client breaches the agreement concluded with the debtor, the debtor shall have no right to demand from the factor the repayment of the amounts the latter has already received if the debtor is entitled to receive such amounts directly from the client.


2. The debtor who is entitled to recover the amounts paid to the factor directly from the client shall have the right to demand from the factor the repayment of such amounts if the debtor proves that the factor has not paid the amount set forth in the factoring agreement to the client or has paid it in the knowledge that the client did not fulfil his obligation to the debtor.

 


CHAPTER XLVI

BANK ACCOUNT


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CHAPTER XLVI

BANK ACCOUNT

 


Article 6.913. Concept of a bank account agreement


1. Under a bank account agreement, the bank shall undertake to accept and credit the money into the account opened by the client (the owner of the account), follow the client’s instructions concerning the transfer and payment of certain amounts from the account, as well as to carry out any other operations performed by the bank, and the client shall undertake to pay the bank for the services and operations effected.


2. The bank may dispose of the funds in the client’s account provided that it secures the client’s right to freely dispose of such funds.


3. The bank shall have no right to determine and control the use of the money by the client or impose any other limitations of the client’s right to dispose of the funds in the account at his own discretion, except as provided for by law or the bank account agreement.

 


Article 6.914. Conclusion of a bank account agreement


1. Upon the conclusion of a bank account agreement, a bank account shall be opened with the bank for the client or his indicated person subject to the terms and conditions provided for in the agreement.


2. The bank must conclude a bank account agreement with the client who makes an application to open such account, subject to the terms and conditions declared by the bank for opening of a certain type of account, which must comply with the requirements set by laws and legal acts governing the activities of banks.


3. The bank shall have no right to refuse to open an account if the possibility for its opening is set forth in the law, operational documents of the bank or the licence issued to the bank, except for the cases when such refusal is permitted by laws.

 


Article 6.915. Approval of the right to dispose of the funds in the account


1. The rights of the persons entitled to dispose, in the name of the client, of the funds in the account shall be approved by law or any other legal act and the documents stipulated in the bank account agreement, which must be submitted to the bank in the accordance with the established procedure.


2. The client shall have the right to instruct the bank to withdraw funds from the account at the request of third persons. Such instructions shall be accepted by the bank if the client specifies in writing the necessary details allowing to identify the person who has the right to withdraw the funds from the account.


3. The bank account agreement may provide that the right to dispose of the funds in the account shall be confirmed by electronic means of payment using a person’s signature, code, password or other data confirming that the instruction was given by the person entitled to do so.


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Article 6.916. Operations performed by the bank

The bank must perform all operations to the client which are established for an appropriate type of accounts by the law, other legal acts governing the activities of the bank as well as banking customs, unless otherwise established in the bank account agreement.

 


Article 6.917. Time limits for performance of operations


1. The bank must credit to the client’s account the funds not later than on the day following the day on which it received an appropriate payment document, unless the bank account agreement provides for a different time limit.


2. The bank must pay or transfer the funds upon the client’s instruction not later than on the day following the day on which it received an appropriate payment document, unless otherwise established in the bank account agreement.

 


Article 6.918. Crediting of the account


1. If the bank pays money from the client’s account in accordance with the bank account agreement, notwithstanding the fact whether or not there is any money in the account (crediting of the account), it shall be deemed that the bank grants to the client a credit of an appropriate amount from the day of payment of the money.


2. The relations between the bank and the client in respect of the crediting of the account mutatis mutandis shall be governed by the provisions of Chapter XLIII of this Book, unless otherwise established in the bank account agreement.

 


Article 6.919. Fees for banking services and operations


1. The client shall pay for the services provided and operations performed by the bank under the terms and procedure stipulated in the bank account agreement.


2. The bank shall be entitled to write off from the client’s account, on quarterly basis, the amounts owed to the bank for the services provided to the client, unless otherwise established in the bank account agreement.

 


Article 6.920. Interest for the use of the funds in the account

The bank shall pay to the client the interest set forth in the agreement for the use of the funds in the account, unless otherwise established in the bank account agreement. The interest shall be transferred to the client’s account within the established time limits, and if such time limits are not established, upon the expiration of each quarter.


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Article 6.921. Set-off of mutual claims of the bank and the client


1. The monetary claims of the bank and the client related to the overdraft, payment for the banking services and payment of interest shall result in a set-off, unless otherwise established in the bank account agreement.


2. The set-off of the claims provided for in paragraph 1 of this Article shall be effected by the bank. The bank must notify the client about the effected set-off within the time limit established in the agreement, and, if such time limit is not established, within a reasonable time.

 


Article 6.922. Grounds for withdrawal of the funds from the account


1. The funds shall be withdrawn from the account upon the instruction of the client.


2. Without the client’s instruction, the funds may be withdrawn by the court judgment and in other cases determined by law or the bank account agreement.

 


Article 6.923. Order of sequence of withdrawal of the funds

The funds shall be withdrawn in the order of receipt of the client’s instructions and other documents (calendar order of sequence) unless otherwise specified by the law.

 


Article 6.924. Liability of the bank for improper performance of operations

If the bank fails to credit the received funds into the client’s account on time or groundlessly withdraws them from the account, also if it does not follow the client’s instructions concerning the transfer or payment of the funds from the account, the bank must pay the client the interest set forth in the bank account agreement, and, if such interest is not established, the interest set forth in Article 6.210 of this Code.

 


Article 6.925. Bank secrecy


1. The bank must secure the confidentiality of the bank account, the deposit, all related operations and the client.


2. The information pertaining to bank secrecy may be disclosed only to the clients or their agents and, in the cases and under the procedure prescribed by laws, to the relevant state-level authorities, officials and other persons.


3. If the bank discloses the secret of the bank, the client shall be entitled to claim compensation from the bank for the damage incurred thereby.

 


Article 6.926. Limitations on the disposal of the account

It shall be prohibited to restrict the client’s possibility to dispose of the funds in the account, except for the cases when the funds in the account are seized or if the operations performed by the bank are suspended in the cases and under the procedure prescribed by laws.


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Article 6.927. Termination of the bank account agreement


1. The bank account agreement may be terminated at any time upon the application of the client.


2. At the request of the bank, the bank account agreement may be terminated where:


1) the amount of the funds in the client’s account decreases so that it is below the minimum amount established in the agreement, and the client does not increase it within one month from the day of the notification sent by the bank;


2) for more than one year, the client’s account contains no monetary funds  and no operations have been performed with the client’s account, and the bank account agreement does not establish otherwise.


3. Where the conditions for the termination of the bank account agreement referred to in point 2 of paragraph 2 of this Article are fulfilled, the bank account agreement may be terminated also in the case of a registered seizure of the monetary funds held in the account or other restrictions on the disposal of such funds. Upon termination of the bank account agreement by the bank, the seizure of  monetary funds or other restrictions on the disposal thereof shall cease to be valid and shall be deregistered in accordance with the procedure laid down in the Law of the Republic of Lithuania on the Register of Property Seizure Acts.


4. The balance of the funds in the account shall be released to the client or transferred upon the client’s instruction to any other account not later than within five working days from the day of receipt of an appropriate written application of the client. If the client has given no instruction to transfer the funds to any other account, the bank shall transfer the funds to the internal accounts of the bank.


5. The termination of the bank account agreement shall be the ground for closing of the account. The bank account agreement shall be valid until the closing of the account.

 


Article 6.928. Bank accounts

The provisions of this Chapter shall apply respectively to the correspondent accounts or other accounts of banks, unless otherwise established by laws or the legal acts regulating banking activities.

 


CHAPTER XLVII

SETTLEMENTS OF ACCOUNTS

 


SECTION ONE

GENERAL PROVISIONS


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SECTION ONE

GENERAL PROVISIONS

 


Article 6.929. Settlement in cash and non-cash


1. Settlements involving natural persons who are not engaged in economic and commercial activities may be effected in cash, without limitation of the amount, or in non-cash.


2. Settlements between legal persons, as well as settlements involving natural persons who are engaged in economic and commercial activities, shall be effected in non-cash, and in the cases and under the procedure prescribed by laws, also in cash.


3. Settlement in non-cash shall be effected through banks with which appropriate accounts are opened, unless otherwise established by law or unless limited by the settlement forms used.


4. Settlements by cheques and bills of exchange shall be accordingly regulated by the law on cheques and the law on bills of exchange.

 


Article 6.930. Means of settlements in non-cash


1. Settlements in non-cash shall be effected using payment orders, letters of credit, cheques, bills of exchange, collection and other means of settlement established by laws.


2. The parties shall be entitled to choose and determine any means of mutual settlement established in paragraph 1 of this Article.

 


Article 6.9301.  Order of priority of settlements in cash and non-cash


1. The debtor, as a natural or legal person who does not have sufficient funds to satisfy all claims made, must effect settlements in the following order of priority: 


1) first in line, settlements according to enforceable documents regarding the compensation for damage caused by injury or death, and recovery of maintenance;


2) second in line, settlements according to enforceable documents regarding the payments arising from employment and copyright agreements;


3) third in line, settlements according to payment documents regarding contributions to the budget (state, municipal, State Social Insurance Fund and Compulsory Health Insurance Fund) and state monetary funds;


4) fourth in line, settlements according to enforceable documents to satisfy other monetary claims;


5) fifth in line, settlements according to other payment documents in the calendar order of priority.


2. Settlement of claims in the same line shall be effected in the calendar order of receipt of payment documents.


3. The order of priority of settlements in enforcement proceedings, bankruptcy, restructuring and other cases provided for by laws shall be established by other laws.

 


SECTION TWO

SETTLEMENTS BY PAYMENT ORDERS


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SECTION TWO

SETTLEMENTS BY PAYMENT ORDERS

 


Article 6.931. GENERAL PROVISIONS


1. When making settlements by payment orders, the bank shall undertake, subject to the payer’s instruction, to transfer the indicated amount from the payer’s account to any other account specified by the payer with the same bank or any other bank, within the time limits established by laws or in accordance with the procedure prescribed by laws, unless the bank account agreement or the operational rules of the bank provide for shorter time limits.


2. The rules of this Section shall also apply to the settlements when the bank transfers the funds upon the instruction of the person who has no account with the same bank, unless otherwise established by laws or the operational rules of the bank.


3. Settlements by payment orders shall be regulated by laws and the operational rules of banks.

 


Article 6.932. Terms and conditions of performance of the payment order


1. The content and form of the payment order, as well as the content and form of the documents submitted along with the payment order must comply with the requirements set forth by the laws and operational rules of the bank.


2. Where the payment order fails to comply with the requirements specified in paragraph 1 of this Article, the bank may request to particularise the details of the payment order. Such request must be sent by the bank to the payer immediately upon the receipt of the payer’s order. If within the time limit established by laws or the operational rules of banks and, if no such time limit is established, within a reasonable time, the bank does not receive a reply to its request, the bank shall be entitled not to perform the payment order and return it to the payer, unless otherwise established by the law, operational rules of the bank or the agreement made between the bank and the payer.


3. The bank shall perform the payer’s order if there is money in the payer’s account, unless otherwise established in the agreement made between the bank and the payer. The payment orders shall be performed observing the order of priority of writing the funds off from the account established in Article 6.923 of this Code.


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Article 6.933. Performance of the order


1. The bank, having accepted a payment order, shall transfer the amount of money indicated in the order to the payee’s bank for crediting of such amount to the account of the person specified in the order within the time limit referred to in paragraph 1 of Article 6.931 of this Code.


2. The bank shall be entitled to use the services of other banks for the performance of operations related to the performance of the payment order.


3. The bank must immediately notify the payer at the latter’s request about the performance of the order. The content and form of such notification shall be established by the operational rules of the bank and the agreement made between the bank and the payer.

 


Article 6.934. Liability for failure to perform or improper performance of the payment order


1. The bank, having failed to perform or improperly performed the payment order, shall be liable under the general rules of the contractual civil liability.


2. If the failure to perform or improper performance of the payment order is due to the fault of any other bank whose services have been used for the performance of certain operations, the liability towards the payer shall lie with the bank which accepted the payment order, unless otherwise established by law or the agreement.


3. Where the bank unlawfully withholds the funds by reason of violation of the rules of settlement, the bank must pay the interest set forth in Article 6.210 of this Code.

 


SECTION THREE

LETTER OF CREDIT

 


Article 6.935. GENERAL PROVISIONS


1. In case of settlement by letters of credit, the bank which has opened the letter of credit and acting at the request and instruction of the payer or in its own name (the issuing bank) shall undertake to pay the money to the payee or accept and pay the bill of exchange issued by the payee, or authorise any other bank (the executing bank) to pay the money to the payee or accept and pay upon maturity the bill of exchange, or authorises any other bank to buy the documents (negotiate) provided that the submitted documents comply with the conditions of the letter of credit.


2. When designating another bank as the executing bank, the issuing bank may authorise it to withdraw the total amount referred to in the documents of the letter of credit from its account with the executing bank or undertake to transfer, upon the request of the executing bank, to the account indicated by the latter, or authorise the executing bank to apply to any other indicated bank for the payment.


3. Settlements by letters of credit shall be regulated by laws and the operational rules of the bank.


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Article 6.936. Revocable letter of credit


1. The revocable letter of credit shall be a letter of credit that may be changed or annulled by the issuing bank without prior notice to the payee. The change or annulment of the letter of credit shall not give rise to any obligations on the part of the issuing bank towards the payee.  


2. The issuing bank or the confirming bank, if any, must compensate the executing bank under the revocable letter of credit if, prior to the annulment of the letter of credit or change of the conditions, the documents conforming to the conditions of the letter of credit were submitted to such bank.

 


Article 6.937. Irrevocable letter of credit


1. The irrevocable letter of credit shall be a letter of credit that may not be changed or annulled without the consent of the issuing bank, the confirming bank, if any, and the payee.


2. At the request of the issuing bank, any other bank which performs the operations in respect of the letter of credit may confirm the irrevocable letter of credit (the confirmed letter of credit). Such confirmation shall mean that the confirming bank undertakes, in addition to the obligation of the issuing bank, to make the payment or other operations subject to the conditions of the letter of credit.


3. The irrevocable letter of credit, confirmed by the confirming bank, may not be changed or annulled without the consent of the confirming bank.


4. Unless explicitly specified in the letter of credit whether it is revocable or irrevocable, the letter of credit shall be deemed irrevocable.

 


Article 6.938. Performance of the letter of credit


1. For the purposes of performance of the letter of credit, the payee shall submit to the issuing bank, the confirming bank, if any, or the executing bank the documents confirming that all the conditions of the letter of credit have been met.  In case of breach of at least one of these conditions, the letter of credit shall not be performed.


2. If the executing bank has made the payment or carried out any other operation subject to the conditions of the letter of credit, the issuing bank or the confirming bank, if any, must compensate all the expenses incurred by such bank. All the expenses related to the performance of the letter of credit shall be borne by the payer.


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Article 6.939. Refusal to accept the documents


1. If the issuing bank or the confirming bank, if any, or the executing bank, which acts in their name, refuses to accept the documents which do not conform to the conditions of the letter of credit, such bank must immediately notify thereof, specifying the reasons for its refusal, the bank from which the documents were received, or the payee if the documents were received directly from him.


2. If the issuing bank or the confirming bank, if any, establishes that the documents fail to conform to the conditions of the letter of credit, the bank shall be entitled to refuse to accept such documents and demand from the executing bank the repayment of the amount paid to the payee in violation of the conditions of the letter of credit, together with the interest, or refuse to compensate the amounts paid.

 


Article 6.940. Liability of the bank for violation of the conditions of the letter of credit


1. Liability towards the payer for the breach of the conditions of the letter of credit shall lie with the issuing bank, and towards the issuing bank, with the confirming bank, if any, and/or the executing bank, to the exclusion of exceptions set forth in this Article.


2. If the issuing bank or the confirming bank, if any, or the executing bank, which acts in their name, refuses, without due grounds, to pay the funds after the payee submits the documents conforming to the conditions of the letter of credit, it shall be liable towards the payee.


3. If the confirming bank, if any, and/or the executing bank improperly pays the funds under the letter of credit, in violation of the conditions of the letter of credit, the liability towards the payer shall lie with the confirming bank, if any, and/or the executing bank, unless otherwise established in the agreement between the payer and the issuing bank. 

 


Article 6.941. Closing of the letter of credit

The letter of credit shall be closed:


1) upon expiration of the term of the letter of credit;


2) upon annulment of the letter of credit by the issuing bank;


3) upon payment by the bank of the amount established in the letter of credit to the payee or performance of other operations prior to expiration of its validity term.

 


SECTION FOUR

COLLECTION


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SECTION FOUR

COLLECTION

 


Article 6.942 GENERAL PROVISIONS


1. Collection shall mean operations performed by the bank (the instructing bank) with the documents upon the client’s order, with the purpose to receive the payment and/or the payment acceptance or issue documents, upon receipt of the payment and/or the payment acceptance or under other conditions.


2. The instructing bank, upon receipt of the client’s order, may use the services of any other bank (the collecting bank) for the performance of such order.


3. Liability for non-execution or improper execution of the client’s order shall lie with the instructing bank, unless otherwise established in the agreement between the client and the bank.


4. Settlements by collection shall be regulated by laws and the operational rules of the bank.

 


Article 6.943. Execution of the collection order


1. If the received collection instructions are incomplete or the bank cannot follow them for certain reasons, or if not all the documents specified in the collection order have been received, or if the documents fail to comply with the collection order, the collecting bank or the submitting bank shall immediately notify to that effect the party from whom the collection order was received. If the deficiencies reported by the bank are not eliminated or adjusted instructions are not received, the bank shall be entitled to return the documents and refuse to execute the order.


2. The documents shall be submitted to the payer in the form in which they were received, except the bank markings and records which are necessary for the performance of the collection operation. 


3. If the documents are to be paid upon their submission, the collecting bank must submit them for payment immediately after it receives the collection order.


4. If the documents are to be paid within a certain period of time, the collecting bank must submit the documents for the payer’s acceptance immediately after it receives the collection order, and must state its request for payment not later than within the payment time limit specified in the document.


5. Partial payments may be accepted only in the cases provided for by laws or the collection order.


6. The collecting bank must immediately transfer the received (collected) amounts to the instructing bank which shall credit them to the client’s account. The collecting bank shall be entitled to deduct from the collected amounts the fee due to such bank and the incurred expenses.


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Article 6.944. Notification on operations performed


1. Where the collecting bank does not receive the payment and/or the acceptance, it must immediately notify to that effect the instructing bank and specify the reasons for which the payment has not been received or its acceptance has been refused.


2. The instructing bank must immediately communicate the information received from the collecting bank to the client and request his instructions on further actions.


3. Having received no instructions from the instructing bank within the time limit set forth in the operational rules of the bank or the agreement or within a reasonable time, where such time limit is not set forth, the collecting bank shall be entitled to return all the documents to the instructing bank.

 


CHAPTER XLVIII

PUBLIC PROMISE OF REWARD

 


Article 6.945. Obligation to pay reward


1. A person who has publicly promised to pay reward to a person who will perform a lawful action indicated in the announcement within the time limit specified in the announcement (find a lost thing, etc.), must pay the promised reward to any person who has performed the said action.


2. The obligation to pay reward shall be subject to the condition that the content of the public promise makes it possible to identify the person who makes such promise. The person who has responded to the public promise shall be entitled to request the promise to be confirmed in writing. If the person has not exercised such right, he shall bear the risk of adverse consequences if it subsequently transpires that the person who promised the reward was not the one indicated in the public announcement.


3. If the amount of reward is not specified in the public announcement, such amount shall be fixed by agreement of the parties, and in case of failure to reach such agreement, by a court judgment.


4. The obligation to pay reward shall arise notwithstanding whether the person who performed the action specified in the announcement did so due to the public promise of reward or not.


5. If the action specified in the announcement was performed by several persons, the right to reward shall be vested in the person who was the first to perform such action. When it is impossible to establish which person was the first to perform such action, or when several persons performed such action together, the reward shall be paid to such persons in equal parts, unless they agree otherwise.


6. The compliance of the action performed with the conditions indicated in the announcement shall be determined by the person who publicly promised the reward unless otherwise established in the announcement. In case of a dispute between the persons, the dispute shall be resolved in court.


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Article 6.946. Revocation of the public promise to pay reward


1. The person who has publicly promised to pay reward shall be entitled to revoke it in the same way as it was made, except for the cases when:


1) the announcement itself contained the statement that it is irrevocable;


2) the promise is irrevocable in its essence;


3) a certain time limit has been set for the performance of the action indicated in the announcement;


4) one or several persons have already performed the action indicated in the announcement prior to its revocation.


2. The revocation of the public promise to pay reward shall not release the person who has announced such promise from the obligation to compensate for the damage incurred by the persons in preparation to perform the action indicated in the announcement. However, the amount of damages to be compensated may not exceed the amount of the promised reward.

 


CHAPTER XLIX

PUBLIC TENDER

 


Article 6.947. Announcement of a public tender


1. A public promise of a person to pay a specific remuneration (award) for the best performance of a certain work or any other result (the announcement of a tender) shall obligate such person to pay the promised remuneration to the person whose work or any other result, according to the conditions of the tender, is recognised as the winner of the tender. A public promise of a person to grant a special right for the best project of the implementation of a certain right shall also be deemed a tender. Such public promise shall obligate the person to grant the special right to the person whose project, according to the conditions of the tender, is recognised as the winner of the tender.


2. The announced tender must specify the task, the term for the fulfilment of the task, the amount of remuneration (award) or the special right to be granted, the place of presentation of works or projects, the procedure and time of evaluation thereof, as well as any other conditions of the tender.


3. A public tender may be announced only in order to achieve a certain public or private goal, without prejudice to good morals or public order.


4. A public tender may be open, when the tender organiser’s offer to participate in such tender is addressed to all who wish to participate therein and is published in the press or other media, or closed, when the offer to participate in the tender is sent only to certain persons at the discretion of the organiser of the tender.


5. The conditions of an open public tender may establish certain qualification requirements for tenderers if the organiser of the tender makes a preliminary selection of the persons who express their wish to participate in the tender.


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Article 6.948. Change of tender conditions or revocation of the tender


1. It shall be permitted to change tender conditions or revoke the tender only in the first half of the term set for the delivery of works.


2. Notification on the change of tender conditions must be given to the tenderers in accordance with the same procedure as the announcement of the tender.


3. Upon the change of tender conditions or revocation of the tender, the organiser of the tender must compensate the expenses incurred by each person who had performed the work stipulated in the tender conditions prior to the moment when he learnt or ought to have learnt about the change of the tender conditions or revocation of the tender.


4. The organiser of the tender shall be exempt from the compensation of the expenses stipulated in paragraph 3 of this Article if he proves that the work performed was not related to the tender (prior to the announcement of the tender) or does not conform to the tender conditions.


5. Where the change of tender conditions or revocation of the tender is in breach of the requirements set forth in paragraphs 1 and 2 of this Article, the organiser of the tender must pay the remuneration to the person who performed the work conforming to the tender conditions.

 


Article 6.949. Decision to pay remuneration (award) or grant a special right


1. The decision to pay remuneration (award) or grant a special right must be adopted and communicated to the tenderers while announcing the established terms and procedure of the tender.


2. If two or more persons (co-authors, collective of performers) are recognised as the winner of the tender, the remuneration to them shall be apportioned in accordance with the procedure established by agreement of such persons, and in case of a dispute among them, the remuneration shall be apportioned by the court based on the contribution of each of such persons.


3. If one award is allotted for two or more persons, it shall be apportioned in accordance with the procedure established in the rules of the tender, and if the rules of the tender do not provide for such procedure, in equal parts unless otherwise agreed by the winners themselves.

 


Article 6.950. Use of works of science, literature, art and architecture awarded under a tender

If the subject matter of a public tender was the creation of a work of science, literature, art or architecture, the person who has announced the public tender shall acquire the priority right to enter with the winner of the tender into an agreement on the use of the created work and payment of the relevant remuneration to the author of the work, unless the tender conditions provide otherwise.


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Article 6.951. Return of works or projects presented for tender to the tenderers

The person who has announced the public tender must return to the tenderers the works or projects for which no remuneration (award) is assigned or no right is granted, unless otherwise established while announcing the tender.

 


Article 6.952. Indemnification of tenderers in case of non-observance of the rules of the tender by the person who has announced the tender


1. If the person who has announced the tender does not observe the announced procedure or terms for the evaluation of the works or projects, the author of the presented work or project which complies with other requirements of the tender shall acquire the right to receive compensation for the damage incurred.


2. If the winner of the tender is not granted a special right(s), he must be compensated for damages.

 


CHAPTER L

TRUST OF PROPERTY

 


Article 6.953. Concept of a property trust agreement


1. Under a property trust agreement, one party (the trustor) shall assign to the other party (the trustee) its property by the right of trust for a certain period of time, and the other party shall undertake to possess, use and dispose of such property in the interests of the trustor or his designated person (the beneficiary).


2. The assignment of property to any other person by the right of trust shall not change the ownership right to the property.  The trustor shall remain the owner of the assigned property.

 


Article 6.954. Content of the right of trust of property


1. The content of the right of trust of property shall be established in Article 4.106 of this Code.


2. The law or agreement may impose limitations on the rights of the trustee to possess, use or dispose of the property.

 


Article 6.955. Conclusion of transactions


1. The trustee shall conclude, in his own name, the transactions related to the property assigned to him by the right of trust, but he must indicate that he is acting by the right of trust of property.  The fact of the right of trust must be disclosed in the form established for the transaction to be concluded.


2. If the trustee fails to perform the obligation referred to in paragraph 1 of this Article, he shall be liable towards third persons by his property.


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Article 6.956. Objects of the right of trust


1. The objects of the right of trust may be movable and immovable things, securities or any other property.


2. The state or municipal property which is possessed, used or disposed of by a state or municipal enterprise, institution or organisation by the right of trust may not be assigned to any other person by the right of trust, except for the cases when such enterprise, institution or organisation is liquidated or reorganised, as well as other cases provided for by law.

 


Article 6.957. Founder of the right of trust (trustor)

The founder of the right of trust (trustor) may be the owner of the property or any other person established by law who is vested with such right.

 


Article 6.958. Trustee


1. The trustee may be a natural or legal person.  


2. The law may specify the persons who are not entitled to be trustees.


3. The trustee may not be the sole beneficiary under a property trust agreement.

 


Article 6.959. Essential conditions of a property trust agreement


1. A property trust agreement must specify the following:


1) the property assigned by the right of trust;


2) the trustor, the trustee and, if the agreement is made for the benefit of a third person (the beneficiary), the beneficiary;


3) the remuneration of the trustee and the procedure for its payment if the remuneration is set fort in the agreement;


4) the validity term of the agreement.


2. A property trust agreement may be concluded for the term not exceeding twenty years.  The law may also establish longer maximum terms for the validity of the agreement.


3. If, upon the expiration of the validity term of the agreement, neither party states its wish to terminate the agreement, the agreement shall be deemed extended under the same conditions for a new term of the same duration.

 


Article 6.960. Form of a property trust agreement


1. A property trust agreement must be made in writing.


2. The immovable property trust agreement must be in the notarial form. It may be used against third persons only after it has been registered in the public register in accordance with the procedure prescribed by laws.   


3. Failure to comply with the requirements set in respect of the form of the agreement shall render the trust agreement null and void.


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Article 6.961. Separation of property


1. The property assigned to the trustee by the right of trust must be separated from the property of the trustor and the trustee. The trustee must draw up and keep the accounting (the balance-sheet) of the property assigned to him and must open a separate bank account for settlements.


2. It shall be prohibited to recover from the property assigned by the right of trust subject to the actions brought by the creditors of the trustor, except for the cases when bankruptcy proceedings are instituted against the trustor or the trustor becomes insolvent. Upon the institution of bankruptcy proceedings against the trustor or his becoming insolvent, the right of trust of property shall expire and the property must be returned to the trustor.

 


Article 6.962. Assignment of the mortgaged (pledged) property by the right of trust


1. The assignment of the mortgaged (pledged) property to any other person by the right of trust shall not deprive the mortgagee (pledgee) of the right to recover from such property.


2. The trustee must be informed that the property assigned to him is mortgaged (pledged). If the trustee was not aware or could not have been aware of the mortgage (pledge) of the property, he shall be entitled to demand the termination of the property trust agreement and the payment of remuneration due to him and compensation for the loss.

 


Article 6.963. Rights and duties of the trustee


1. The trustee, complying with the law and agreement, shall exercise the owner’s rights in respect of the property assigned to him by the right of trust.


2. All the rights acquired by the trustee in exercising the owner’s rights shall be an integral part of the property assigned to him. The obligations arising in the course of the activities carried out by the trustee shall be fulfilled using the property assigned to him.


3. The trustee shall be entitled to protect the right of trust in the same ways that are used to protect the right of possession and ownership.


4. The trustee must submit a report on his activities to the trustor and the beneficiary in accordance with the procedure and time limit established in the agreement. If the time limit for the submission of the report is not provided, the report must be submitted once a year.  The owner shall have the right to control the trustee’s activities at any time.


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Article 6.964. Duty to perform the agreement personally


1. The trustee must personally possess, use and dispose of the property assigned to him, to the exclusion of exceptions established in paragraph 2 of this Article.


2. The trustee shall be entitled to authorise any other person to perform certain actions required in respect of possession of the property provided that this is stipulated in the agreement or a prior written consent to that effect has been received from the trustor, or if it is necessary in order to protect the interests of the trustor or the beneficiary and it was not possible to receive the consent from the trustor within a reasonable time.


3. The trustee shall be liable for the actions of the person authorised by him to perform such actions, as if it were the actions of the trustee himself.   

 


Article 6.965. Trustee’s liability


1. The trustee who has failed to take due care of the property assigned to him and the interests of the trustor and the beneficiary must indemnify the beneficiary or the trustor for the damage incurred due to the loss or damage of the property, as well as the loss of income.


2. The trustee shall be exempted from compensation for the damage if he proves that the loss has been incurred due to force majeure or the actions of the trustor or the beneficiary.


3. Where the trustee enters into a transaction in excess of the powers granted to him or in violation of limitations established in the agreement, he shall be personally liable under such transaction. If third persons were not aware and could not have been aware of the excess of powers or violation of limitations, this shall result in the legal consequences set forth in paragraph 4 of this Article. In such case, the trustor shall be entitled to claim from the trustee compensation for damage.


4. The debts under obligations which accrued during possession, use and disposal of property by the right of trust shall be covered from the entrusted property. If such property is not sufficient, the recovery shall be made from the trustee’s property, and, when the latter property is not sufficient, from any other property of the trustor.

 


Article 6.966. Remuneration for the trustee

The trustee shall be entitled to the remuneration set in the agreement and reimbursement of the necessary expenses from the proceeds from the property assigned to him, unless otherwise established in the agreement.


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Article 6.967. Expiration of the property trust agreement


1. The property trust agreement shall expire in the following cases:


1) when the beneficiary dies or is liquidated, unless otherwise established in the agreement;


2) when the beneficiary waives the benefit received under the agreement, unless otherwise established in the agreement;


3) when the trustee dies, is recognised legally incapable in this area or of limited legal capacity in this area, missing, or is liquidated;


4) when bankruptcy proceedings are instituted against the trustor;


5) when the trustor or the trustee waives the agreement because the trustee is not in a position to perform the agreement personally;


6) when the trustor waives the agreement on any other grounds and pays the trustee the remuneration established in the agreement and compensates the necessary expenses incurred by virtue of termination of the agreement.


2. Any party that wishes to waive the agreement must give the other party a six-month prior written notice to that effect, unless the agreement establishes any other time limit.


3. Upon the expiration of the property trust agreement, the trustee must return the property to the trustor, unless otherwise established in the agreement.

 


Article 6.968. Peculiarities of the right of trust of property

Laws may establish certain peculiarities of the right of trust of property when the trustee is a state or municipal enterprise, institution or organisation, also when the right of trust of property arises on grounds other than under the agreement.

 


CHAPTER LI

JOINT ACTIVITIES (PARTNERSHIP)

 


Article 6.969. Concept of an agreement on joint activities (partnership)


1. By an agreement on joint activities (partnership), two or more persons (the partners), by cooperating their property, work or knowledge, shall undertake to act jointly for a certain goal or certain activities which do not contravene the law.


2. No longer effective from 1 September 2012.


3. Where the goal of joint activities is not related to the seeking of profit, the agreement on joint activities shall be referred to as the association agreement.


4. An agreement on joint activities (partnership) must be made in writing and, in the cases prescribed by the law, in the notarial form. Failure to comply with the requirements set in respect of the form of the agreement shall render the agreement null and void.


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Article 6.970. Contributions of the partners


1. A contribution of a partner shall be deemed everything such partner contributes to the joint activities, i.e. money, any other assets, professional or any other knowledge, skills, reputation and business relations.


2. It shall be presumed that the contributions of the partners are equal unless otherwise established in the agreement on joint activities.  The contribution shall be valued in cash by agreement of all partners.

 


Article 6.971. Co-ownership of the partners


1. The property contributed by the partners, which was previously in their ownership, as well as the production, income and fruits resulting from joint activities, shall be partial co-ownership of all the partners, unless otherwise established by law or the agreement on joint activities.


2. If the contributed property previously was not the ownership of a partner, and the partner uses such property on any other grounds, this property shall be used in the interests of all the partners and shall also be deemed the property which is jointly used by all the partners, unless otherwise established by the law. 


3. One of the partners appointed by joint agreement of all the partners shall be in charge of the accounting of the joint property.


4. The joint property shall be used, possessed and disposed of by joint agreement of all the partners. In case of a dispute, at the request of any of the partners, the procedure shall be established by the court.


5. The obligations of the partners related to the maintenance of the joint property, and the coverage of any other expenses, shall be established in the agreement on joint activities.


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Article 6.972. Management of joint affairs


1. In managing joint affairs, each of the partners shall be entitled to act on behalf of all the partners, unless the agreement on joint activities provides that joint affairs are managed by one of the partners or all the partners together. If the affairs can be managed only by all the partners together, the conclusion of each transaction shall require the approval by all the partners.


2. In case of relations with the third persons, the right of a partner to conclude transactions on behalf of all the partners shall be approved by the power of attorney issued by the remaining partners or the agreement on joint activities.


3. In case of relations with the third persons, the partners may not rely on limitations of the rights of the partner who has concluded the transaction to act on behalf of all the partners, except for the cases where they prove that, at the time of conclusion of the transaction, the third person knew or ought to have known about such limitations.


4. A partner who has concluded the transaction on behalf of all the partners in excess of the powers granted to him, or who has concluded the transaction in his own name in the interests of all the partners, shall be entitled to claim from the other partners the indemnification of the loss incurred if he proves that such transactions were necessary in order to protect the interests of the other partners. The partners who have incurred damage by virtue of such transactions shall be entitled to claim from the partner who has concluded such transactions compensation for such damage.


5. The decisions related to joint affairs of the partners shall be adopted by joint agreement of the partners, unless otherwise established in the agreement on joint activities.

 


Article 6.973. Right of the partners to information

Each partner shall be entitled to have access to the documents concerning the management of joint affairs, notwithstanding whether or not he is authorised to manage the joint affairs. Any agreements imposing limitations on, or cancelling, the above-mentioned right shall be null and void.

 


Article 6.974. Joint expenses and joint damages 


1. The distribution of joint expenses and joint damages related to the joint activities shall be established in the agreement on joint activities. In the absence of such agreement, each partner shall be liable for the joint expenses and joint damages in proportion to the amount of his part of such expenses or damages.


2. The agreement which fully releases one of the partners from the coverage of the joint expenses or joint loss shall be null and void.


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Article 6.975. Liability of partners under joint obligations


1. If the agreement on joint activities is not related to the economic and commercial activities of the partners, each partner shall be liable under joint contractual obligations to the extent of all his property in proportion to his part of such obligations.


2. Under the joint non-contractual obligations, the partners shall be solidarily liable.


3. If the agreement on joint activities is related to the economic and commercial activities of the partners, all the partners shall be solidarily liable under the joint obligations, notwithstanding the ground for appearance of such obligations.

 


Article 6.976. Distribution of profit


1. The profit, obtained from the joint activities shall be distributed among the partners in proportion to the value of the contribution of each of them into the joint activities, unless otherwise established in the agreement on joint activities.


2. The agreement to exclude any of the partners while distributing the profit shall be null and void.

 


Article 6.977. Separation of the interest of a partner

The creditors of a partner shall be entitled to claim the separation of the partner’s interest from the joint property pursuant to the rules established in Book Four of this Code.


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Article 6.978. Expiry of the agreement on joint activities


1. The agreement on joint activities shall expire:


1) when one of the partners is recognised as legally incapable, of limited legal capacity or missing, unless the agreement on joint activities or later arrangement of the remaining partners establishes to retain the agreement on joint activities among the remaining partners, except for the cases when the agreement on joint activities is valid without the above mentioned partner;


2) when bankruptcy proceedings are instituted against one of the partners, to the exclusion of exceptions established in point 1 of this paragraph;


3) in case of death or liquidation or reorganisation of one of the partners, unless the agreement on joint activities or later arrangement of the remaining partners establishes to retain the agreement on joint activities among the remaining partners or substitute the deceased or liquidated or reorganised partner with his legal successors;


4) when one of the partners refuses to continue as a participant of the open-ended agreement on joint activities, to the exclusion of exceptions established in point 1 of this paragraph;


5) when the fixed-term agreement on joint activities is terminated at the request of one of the partners, to the exclusion of exceptions established in point 1 of this paragraph;


6) upon the expiry of the term of the agreement on joint activities;


7) upon separation of the interest of one of the partners from the joint property at the request of his creditors, to the exclusion of exceptions established in point 1 of this paragraph;


2. Upon the expiry of the agreement on joint activities, the things assigned for the joint use by all the partners shall be gratuitously returned to the partners who have assigned them, unless otherwise agreed by the parties.


3. From the moment of expiry of the agreement on joint activities, its participants shall be solidarily liable towards the third persons for the outstanding joint obligations.


4. The property which is the joint ownership of the partners after the expiry of the agreement on joint activities shall be distributed in accordance with the rules established in Book Four of this Code.


5. The partner who has contributed a distinctive thing shall be entitled to demand, after the expiry of the agreement on joint activities, to return him the thing unless the interests of other partners and creditors are infringed by such return.

 


Article 6.979. Waiver of the open-ended agreement on joint activities


1. The partner who wishes to withdraw from the open-ended agreement on joint activities must notify to that effect the other partners at least three months prior to the intended withdrawal, unless otherwise established by laws or the agreement.


2. Agreements imposing the limitations on the right of the partners to waive the open-ended agreement on joint activities or cancelling such right shall be null and void.


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Article 6.980. Termination of the agreement on joint activities at the request of one of the partners


1. One of the partners shall be entitled to terminate the agreement concluded with other partners, which is fixed-term or made for a certain goal, if:


1) other partners are in material breach under such agreement;


2) the partner who wishes to terminate the agreement is no longer able to perform the agreement for important reasons.


2. The partner who has terminated the agreement must indemnify the other partners for the direct damages incurred by virtue of such termination.


3. Upon the termination of the agreement by one of the partners, the agreement shall remain in force in respect of the other partners, to the exclusion of the exceptions established in point 1 of paragraph 1 of Article 6.978 of this Code.

 


Article 6.981. Liability of the partner who has terminated the agreement on joint activities

If the agreement on joint activities is terminated upon refusal of one of the partners to be a participant of the agreement, or at the request of one of the partners, the person who is no longer a participant of the agreement on joint activities shall be liable to third persons under the obligations which appeared while he was a participant of the agreement on joint activities as if he were a partner.

 


Article 6.982. Undeclared partnership


1. The agreement on joint activities may stipulate that a partner(s) may not be avowed to third persons (undeclared partnership). Such agreement shall be governed by the rules of this Chapter, to the exclusion of the exceptions established in the agreement and this Article.


2. In case of relations with the third persons, each of the undeclared partners shall be liable to the extent of all his property under all the transactions he has concluded in his own name in the interests of all the partners.


3. All the obligations arising among the partners during their joint activities shall be partial.

 


CHAPTER LII

PEACEFUL SETTLEMENT AGREEMENT

 


Article 6.983. Concept of a peaceful settlement agreement


1. By a peaceful settlement agreement, the parties shall resolve, by means of mutual concessions, an existing judicial dispute, preclude a judicial dispute in the future, resolve an issue of enforcement of the court judgment or any other disputed issues.


2. The obligation of the parties arising from the peaceful settlement agreement in respect of its subject matter shall be deemed indivisible.


3. The peaceful settlement agreement must be made in writing. Failure to comply with this requirement shall render the agreement null and void.


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Article 6.984. Cases when the peaceful settlement agreement is invalid

The peaceful settlement agreement regarding the legal status or legal capacity of persons, regarding the matters regulated by the mandatory rules of law, as well as regarding the matters related to public order, shall be invalid.

 


Article 6.985. Effect of the peaceful settlement agreement


1. The peaceful settlement agreement, upon approval by the court, shall have the effect of the final judgment (res judicata) on its parties.


2. The peaceful settlement agreement, upon approval by the court, shall be an enforceable document.

 


Article 6.986. Recognition of the peaceful settlement agreement as void


1. The peaceful settlement agreement may be recognised as null and void due to essential inequality of its parties (Article 6.228 of this Code), as well as on other grounds of invalidity of transactions.


2. If the peaceful settlement agreement is made based on the transaction which was not in force at the time of making of the peaceful settlement agreement, such peaceful settlement agreement shall be null and void.


3. If the peaceful settlement agreement is made based on written documents which later appear as counterfeit, such peaceful settlement agreement shall be null and void.


4. The peaceful settlement agreement shall be null and void if, at the moment of making of the peaceful settlement agreement, one or both parties did not know that the issue, which is the subject matter of the peaceful settlement agreement, had already been resolved by a final court judgment.


5. The peaceful settlement agreement shall be null and void if, after its conclusion, documents emerge confirming that one of the parties to the peaceful settlement agreement is not or was not entitled to what it has been granted by the peaceful settlement agreement.


6. The error of the parties in respect of the rules of law, except for the mandatory rules of law, shall not be the ground for recognising the peaceful settlement agreement as void.

 


CHAPTER LIII

INSURANCE

 


Article 6.987. Concept of an insurance agreement

Under an insurance agreement, one party (the insurer) shall undertake to pay, subject to the insurance contribution (premium) established in the agreement, to the other party (the policyholder) or the third person for whose benefit the agreement has been made, the insurance benefit established in the insurance agreement to be calculated in accordance with the procedure prescribed in the insurance agreement, if an insured event set forth in the law or the insurance agreement occurs.


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Article 6.988. Forms and branches of insurance


1. Insurance may be compulsory and voluntary.


2. The branches of insurance shall be life and non-life insurance.


3. The types and conditions of compulsory insurance as well as the branches of insurance and the interests of insurance shall be governed by other laws.


4. Only the interests protected by laws may be insured.

 


Article 6.989. Form of an insurance agreement


1. The insurance agreement must be made in writing.


2. The insurance agreement shall be approved by the insurance certificate (policy).

 


Article 6.990. Procedure for conclusion of an insurance agreement


1. The insurance agreement shall be concluded when the insurer accepts the proposal (application) of the policyholder submitted to the insurer, or when the policyholder accepts the insurer’s proposal to enter into the agreement. In the cases determined by the rules of the type of insurance, the application of the policyholder must be made in writing. In such case, the form and content of the written application shall be determined by the insurer.


2. The policyholder shall be liable for the accuracy of the data submitted in the proposal (application). Upon the conclusion of the insurance agreement, the written application by the policyholder shall become an integral part of the insurance agreement.


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Article 6.991. Insurance certificate (policy)


1. The insurance certificate (policy) must contain the following:


1) the number of the insurance certificate (policy);


2) the name of the insurer, the address of its registered office and e-delivery box;


3) the name, surname or title of the policyholder, the insured person or the beneficiary;


4) the group of insurance and the name and number of the rules of a certain type of insurance;


5) the object of insurance;


6) the sum insured, except for the cases when the specific sum insured is not established;


7) the insurance premium and the terms for its payment;


8) the type of insurance;


9) the validity term of the insurance agreement;


10) the record that the policyholder has been informed of the rules of the type of insurance and has received a copy thereof;


11) the signature of the person authorised by the insurer to conclude the insurance agreement and the stamp of the insurer when the incorporation documents of the insurer establish the ensurer’s obligation to hold a stamp, or facsimiles thereof;


12) the date of issue of the insurance certificate (policy).


2. The procedure for the registration and protection of the insurance certificates (policies) shall be established by laws.


3. If the insurance certificate (policy) fails to conform to the content of the written application by the policyholder, and the agreement was made by accepting the application of the policyholder to enter into such agreement, the written application of the policyholder shall prevail.

 


Article 6.992. Conclusion of the insurance agreement according to standard conditions


1. If the insurance agreement is concluded according to the rules of the type of insurance drafted in the procedure prescribed by laws, the insurance agreement shall accordingly be governed by Articles 6.185 to 6.187 of this Code.


2. The insurer must provide public access to the rules of the type of insurance and, prior to the conclusion of the insurance agreement, provide the policyholder with their copies.


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Article 6.993. Obligation to disclose information


1. Prior to the conclusion of the insurance agreement, the policyholder must provide to the insurer all the available information about the circumstances which can have material effect on the probability of occurrence of the insured event and the amount of potential loss in respect of such event (insurance risk), if the insurer does not know and should not know of such circumstances. 


2. Material circumstances about which the policyholder must inform the insurer shall be deemed the circumstances indicated in the standard conditions of the insurance agreement (rules of the type of insurance), as well as the circumstances on which the insurer has requested the policyholder in writing to provide information.


3. If the policyholder fails to provide a reply to the written inquiry by the insurer about certain circumstances, and the insurer, notwithstanding this fact, has entered into the insurance agreement, the insurer shall lose the right to claim the termination of the insurance agreement or recognise it as null and void on the basis of the failure by the policyholder to provide the information.


4. If, after the conclusion of the insurance agreement, it is established that the policyholder has furnished to the insurer knowingly misleading information about the circumstances stipulated in paragraph 1 of this Article, the insurer shall be entitled to request that the insurance agreement be declared null and void, except for the cases when the circumstances which have been concealed by the policyholder disappeared prior to the insured event or had no effect on the insured event.


5. If, after the conclusion of the insurance agreement, it is established that the policyholder has failed, through negligence, to submit the information stipulated in paragraph 1 of this Article, the insurer must, not later than within two months from becoming aware of such circumstances, propose to the policyholder to change the insurance agreement. If the policyholder refuses to do so and does not respond to the submitted proposal within one month (and, in the case of life insurance, within two months), the insurer shall be entitled to request termination of the insurance agreement.


6. If the policyholder has failed, through negligence, to provide the information stipulated in paragraph 1 of this Article, the insurer, upon the occurrence of the insured event, must pay a part of the insurance benefit to be paid to the policyholder subject to the fulfilment of the obligation provided for in paragraph 1 of this Article, proportionate to the ratio between the agreed insurance premium and the insurance premium which would have been established for the policyholder if the latter had fulfilled the obligation stipulated in paragraph 1 of this Article.


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7. If the insurer, being aware of the circumstances which have not been reported by the policyholder through negligence, had not concluded the insurance agreement, the insurer, within two months from his becoming aware that the policyholder has not submitted, through negligence, the information stipulated in paragraph 1 of this Article, shall be entitled to request termination of the insurance agreement.  Upon the occurrence of the insured event, the insurer shall be entitled to refuse to pay the insurance benefit only if he proves that no insurer, being aware of the circumstances which have not been indicated by the policyholder through negligence, would have concluded the insurance agreement.


8. During the conclusion and within the validity term of the insurance agreement, the insurer must provide the policyholder with the following information: the name of the insurer, the type of the insurance company, its address and e-delivery box address, the address of the insurer’s division or the insurer’s representative (if the insurance agreement is concluded in any other place than the insurer’s registered office), the procedure for settlement of disputes arising from or related to the insurance agreement, the response of the insurer when the policyholder breaches the conditions of the insurance agreement, possible cases of increase of insurance risk, as well as other information referred to in the legal acts regulating insurance activities.


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Article 6.994. Right of the insurer to assess the insurance risk


1. Prior to the conclusion of the insurance agreement, the insurer shall be entitled to inspect the property to be insured, and, if necessary, to order, at his own expense, an expert examination for determination of its value.


2. If the insurance interest is related to the life and health of a natural person, the insurer shall be entitled to demand from the policyholder documents confirming the age, state of health, and profession of the policyholder/insured person and other circumstances relevant for the insurance risk.

 


Article 6.995. Confidentiality of information

The insurer shall have no right to disclose information, obtained in the course of his insurance activities, about the policyholder, the insured person or the beneficiary, their health and property status, as well as other confidential information established in the insurance agreement, to the exclusion of exceptions stipulated by laws. The insurer, having breached such obligation, must indemnify the policyholder, the insured person or the beneficiary for the pecuniary and non-pecuniary damage.

 


Article 6.996. Entry into force of the insurance agreement


1. The insurance agreement, unless it provides otherwise, shall enter into force from the moment of payment by the policyholder of the full insurance contribution (premium) or the first instalment thereof.


2. If the policyholder fails to pay the insurance contribution (premium) stipulated in paragraph 1 of this Article, the insurance agreement shall terminate, unless otherwise established in the agreement.


3. Insurance shall apply to all insured events occurring after the entry into force of the insurance agreement, unless otherwise established in the agreement. If the insurance agreement establishes the application of insurance also to the insured events which occurred prior to the entry into force of the insurance agreement, such condition shall be valid if the parties to the insurance agreement were not aware of the insured event which occurred prior to the entry into force of the insurance agreement.

 


Article 6.997. Sum insured


1. The amount of insurance of property interests and the amount of the insurance benefit (the sum ensured) the insurer undertakes to pay shall be established by agreement of the parties to the insurance agreement or by the law.


2. In case of non-life insurance, to the exclusion of exceptions provided for by laws, the sum insured may not exceed the actual value of the property insured or the property risk (the value of insurance).

 


Article 6.998. Contesting the sum insured

The sum insured indicated in the insurance agreement may not be contested after the conclusion of the agreement, except for the cases when the insurer, having failed to exercise his right to assess the risk of insurance, was defrauded due to indication of the knowingly misleading value of insurance or an arithmetic or spelling mistake.


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Article 6.999. Partial insurance


1. Where the sum insured established in the non-life insurance agreement, except for cases provided for by laws, is lower than the value of insurance, upon the occurrence of the insured event, the insurer must indemnify the policyholder (beneficiary) a part of the damages incurred, proportionate to the ratio between the sum insured and the value of insurance.


2. The insurance agreement may also provide for a higher insurance benefit, but not exceeding the value of insurance.

 


Article 6.1000. Additional insurance

If only a portion of the value of property or risk (insurance) is insured in the non-life insurance agreement, except for cases stipulated by laws, the policyholder (beneficiary) shall be entitled to additionally insure them by entering into an additional insurance agreement with the same or any other insurer. However, in such cases, the total sum insured under all insurance agreements may not exceed the value of insurance.

 


Article 6.1001. Legal consequences of the insurance which exceeds the value of insurance


1. If the sum insured, specified in the insurance agreement, exceeds the value of insurance, the insurance agreement shall be null and void in respect of the portion of the sum insured which exceeds the value of insurance. However, the paid insurance benefit which exceeds the value of insurance may not be recovered.


2. If the insurance contributions (premiums) are paid periodically and, upon the establishment of the circumstances stipulated in paragraph 1 of this Article, the insurance contribution (premium) has not been fully paid, the remaining payable amount of the insurance contribution (premium) shall be reduced in proportion to the amount of the reduction of the sum insured.


3. If the sum insured is increased due to fraud on the part of the policyholder, the insurer shall be entitled to request that the insurance agreement be declared null and void and to claim compensation for the loss incurred to the extent such loss is not covered by the received insurance contribution (premium).


4. The rules of this Article shall also apply in the cases when the sum insured exceeds the value of the insurance for the same object under several insurance agreements with different insurers (double insurance). In such case, the insurance benefit to be paid by each of the insurers shall be reduced in proportion to the reduction of the sum insured under an appropriate insurance agreement.


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Article 6.1002. Insurance against various risks


1. The object of insurance may be insured against different risks by concluding one or several insurance agreements with the same or different insurers. In such case, the total sum insured under all insurance agreements shall be permitted to exceed the value of insurance.


2. If the obligation of the insurers to pay the insurance benefit for the same consequences of the same insured event is stipulated under several insurance agreements made pursuant to paragraph 1 of this Article, the consequences set forth in Article 6.1001 of this Code shall arise.

 


Article 6.1003. Co-insurance

The object of insurance may be insured under one insurance agreement jointly by several insurers (the co-insurance). Unless the insurance agreement provides for the rights and obligations of each of the insurers, all the insurers shall be jointly and severally liable towards the policyholder (beneficiary) for the payment of the insurance benefit.

 


Article 6.1004. Insurance contribution (premium)


1. The policyholder (beneficiary) must pay for the insurance protection to the insurer, subject to the terms set forth in the agreement or law, the established amount or amounts of money (the insurance contribution (premium)).  


2. The insurance agreement may establish that the insurance contribution (premium) is to be paid at once or periodically within the time limits stipulated in the agreement. Where the insurance contribution (premium) is paid periodically, the insurance agreement may provide for legal consequences of the failure to make a regular contribution within the established time limit.


3. If the insured event occurs prior to the payment of the insurance contribution (premium) which is due, the insurer shall be entitled to set off the outstanding amount against the insurance benefit.

 


Article 6.1005. Substitution of the insured person

The policyholder shall be entitled to substitute the insured person with any other person only upon receipt of the written consent of the insurer, unless otherwise established in the insurance agreement.

 


Article 6.1006. Substitution of the beneficiary


1. The policyholder shall be entitled to substitute the beneficiary indicated in the insurance agreement with any other person, to the exclusion of the exceptions stipulated in laws or the agreement, upon prior written notification to the insurer.


2. If the beneficiary has been appointed upon the consent of the insured person, the beneficiary may be substituted only upon the consent of the insured person.


3. The beneficiary may not be substituted with any other person if he has fulfilled any obligations under the insurance agreement or has made a claim against the insurer to pay the insurance benefit.


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Article 6.1007. Performance of the insurance agreement where there are both the policyholder and the beneficiary


1. If the insurance agreement is concluded for the benefit of a third person (the beneficiary), the liability towards the insurer for the performance of the agreement shall lie with the policyholder, unless otherwise established in the insurance agreement.


2. The insurer shall be entitled to request that the insurance agreement be performed by the beneficiary if the policyholder has not performed the agreement and the beneficiary makes a claim against the insurer for payment of the insurance benefit.

 


Article 6.1008. Substitution of the insurer


1. The insurer shall be entitled to assign its rights and obligations under the insurance agreement to any other insurer or insurers in accordance with the procedure prescribed by the insurance agreement, upon the receipt of the permission from the relevant state institution which exercises the supervision of insurance.


2. The insurer must give a two-month prior notification to the policyholder about its intention to assign its rights and duties, unless a longer term is provided for in the insurance agreement.

 


Article 6.1009. Termination of the insurance agreement before the expiry of the term


1. The insurance agreement may be terminated before the expiry of the term established therein if, after the entry into force of the agreement, the possibility for occurrence of the insured event or the insurance risk disappeared due to the circumstances which are not related to the insured event (the object of insurance perished for reasons not related to the insured event, etc.).


2. The policyholder shall be entitled to terminate the insurance agreement in any case.


3. If the insurance agreement is terminated on the grounds established in paragraph 1 of this Article, the insurer shall be entitled to the part of the insurance contribution (premium) which is proportionate to the validity term of the insurance agreement.


4. If the policyholder terminates the insurance agreement before the expiry of the term, the insurance contribution (premium) paid to the insurer shall not be refunded, unless otherwise established in the insurance agreement.


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Article 6.1010. Increase and decrease of the insurance risk


1. If, during the validity term of the insurance agreement, there is a material change in the circumstances stipulated in the insurance agreement, which increases or is likely to increase the insurance risk, the policyholder must notify the insurer to that effect immediately upon learning about such changes.


2. The insurer which has been notified about the increase of the insurance risk shall be entitled to request the change of the conditions of the insurance agreement or increase the insurance contribution (premium). If, in such case, the policyholder does not agree to change the conditions of the insurance agreement or to pay the increased insurance contribution (premium), the insurer shall be entitled to apply to court for termination or amendment of the insurance agreement upon a material change in the circumstances (Article 6.204 of this Code).


3. If the policyholder fails to fulfil the obligation stipulated in paragraph 1 of this Article, the insurer shall be entitled to request the termination of the agreement and to claim damages to the extent that they are not covered by the received insurance contribution (premium). However, the insurer shall have no right to request termination of the insurance agreement if the circumstances which could have led to an increase in the insurance risk have disappeared.


4. If, during the period of validity of the insurance agreement, there is a material change in the circumstances established in the insurance agreement which decrease or may decrease the insurance risk, the policyholder shall be entitled to request the change of the conditions of the insurance agreement or the reduction of the insurance contribution (premium). If, in such case, the insurer does not agree to change the conditions of the insurance agreement or to pay the reduced insurance contribution (premium), the policyholder shall be entitled to apply to court for termination or amendment of the insurance agreement upon a material change in the circumstances (Article 6.204 of this Code).

 


Article 6.1011. Change of the owner of the insured property


1. If the ownership right to the insured property passes from the person in whose interests the insurance agreement has been concluded to any other person, the rights and obligations under the insurance agreement shall pass to the new owner of the insured property, except for cases when the property from the original owner is taken in a compulsory procedure or the insurance agreement provides otherwise. 


2. The new owner of the property must immediately notify the insurer in writing about the assignment of the ownership right.


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Article 6.1012. Obligation of the policyholder to notify about the insured event


1. Upon becoming aware of the insured event, the policyholder must notify the insurer or its representative to that effect within the time limit and in the manner stipulated in the agreement. The beneficiary shall be subject to the same obligation if he is aware of the insurance agreement concluded for his benefit and intends to exercise his right to the insurance benefit.


2. If the policyholder (beneficiary) fails to fulfil the obligation set forth in paragraph 1 of this Article, the insurer shall be entitled to refuse to pay the insurance benefit or reduce it in consideration of whether the policyholder has failed to fulfil his obligation intentionally or through negligence, except for the cases when it is proved that the policyholder became aware of the insured event in good time or when the failure to notify about the insured event has no effect on the insurer’s obligation to pay the insurance benefit.

 


Article 6.1013. Obligation to take measures to mitigate the loss


1. Upon occurrence of the insured event, the policyholder must take reasonable measures available to him to mitigate the potential damage, following the insurer’s instructions provided that such instructions have been given to the policyholder.


2. The necessary expenses incurred by the policyholder while mitigating the damage or following the insurer’s instructions must be covered by the insurer, notwithstanding the fact that the measures in question have not produced a positive result. Such expenses shall be covered in proportion to the ratio between the sum insured and the value of insurance, notwithstanding the fact that the expenses, together with the amount of the loss, exceed the sum insured.


3. The insurer shall be released from compensation for damage if the damage was caused by the deliberate failure of the policyholder to take reasonable measures available to him to mitigate or prevent such damage.


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Article 6.1014. Release from payment of the insurance benefit


1. The insurer shall be released from payment of the insurance benefit if the insured event has occurred through a malicious act of the policyholder, the insured person, or the beneficiary, to the exclusion of the exceptions established in paragraphs 3 and 4 of this Article. The insurer must pay the insurance benefit if malicious acts or omission are socially valuable (indispensable defence, performance of a civil duty, etc.).


2. The law may determine cases in which the insurer is released from payment of the insurance benefit due to the fact that the insured event occurred through gross negligence on the part of the policyholder or the beneficiary.


3. The insurer shall not be released from payment of the insurance benefit under the civil liability insurance agreement if the damage to health or death has been caused through the fault of the person liable for such damage.


4. The insurer shall not be released from payment of the insurance benefit when such benefit is to be paid under the insurance agreement in case of the death of the insured, where the reason of the death was suicide, but the insurance agreement had been in force for more than three years.


5. Unless the insurance agreement provides otherwise, the insurer shall be released from payment of the insurance benefit also in the following cases:


1) if the insured event occurred due to the acts of war or impact of radioactive radiation;


2) if the damage was caused by confiscation, seizure or destruction of property following the instructions of the state-level authorities;


3) in other cases stipulated by law.


6. The laws may also establish other cases of the release from payment of the insurance benefit.


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Article 6.1015. Assignment of the rights of the policyholder to compensation for damage onto the insurer (subrogation)


1. Unless the insurance agreement provides otherwise, the the right to claim the paid amounts from the person liable for the damage incurred shall pass over to the insurer who has paid the insurance benefit. If the damage was caused intentionally, the right of claim shall pass over to the insurer, notwithstanding the fact that subrogation is prohibited by the insurance agreement. Subrogation shall not apply in the case of insurance against accidents and illness, civil liability insurance, as well as in other cases prescribed by laws. 


2. Having passed over to the insurer, the right of claim shall be exercised in compliance with the rules establishing the relations between the policyholder (beneficiary) and the person liable for the damage.


3. The policyholder (beneficiary) must provide the insurer with all the information which is necessary for the insurer to duly exercise the assigned right of claim.


4. If the policyholder (beneficiary) has waived his right of claim or if it has become impossible to exercise such right through the fault of the policyholder (beneficiary), the insurer shall be released from payment of the insurance benefit, in whole or in part, and shall be entitled to request the refund of the benefit which had already been paid.

 


Article 6.1016. Reinsurance


1. The insurer may, in whole or in part, insure the risk of payment of the insurance benefit by concluding reinsurance agreements with other insurers. In such case, the insurer under the original insurance agreement shall become the policyholder under the reinsurance agreement.


2. The reinsurance agreements mutatis mutandis shall be subject to the rules of this Chapter.


3. In case of reinsurance, the insurer under the original insurance agreement shall remain liable towards the policyholder for the payment of the insurance benefit.

 


Article 6.1017. Mutual insurance


1. Natural and legal persons may insure the property interests on a mutual basis by combining the funds necessary for such insurance in self-insurance societies.


2. The activities of self-insurance societies shall be regulated by laws.


3. The rules of this Chapter shall apply to mutual insurance to the extent that other laws do not provide otherwise.

 


Article 6.1018. Special branches and groups of insurance

The rules of this Chapter shall apply to branches and groups of insurance prescribed by law to the extent that other laws do not provide otherwise.

 

 

Annex to

the Civil Code

of the Republic of Lithuania

 

 


LEGAL ACTS OF THE EUROPEAN UNION IMPLEMENTED BY THIS LAW


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LEGAL ACTS OF THE EUROPEAN UNION IMPLEMENTED BY THIS LAW

 


1. Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, as last amended by Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019.


2. Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers, as last amended by Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019.


3. Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts.


4. Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive  97/7/EC of the European Parliament and of the Council, as last amended by Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019.


5. Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC.


6. Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.


7. Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law.


8. Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services.


9. Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC.


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Consolidated version valid until 30 September 2018

 

REPUBLIC OF LITHUANIA

 

LAW

ON THE APPROVAL AND ENTRY INTO FORCE OF THE CRIMINAL CODE

 

 

26 September 2000 No VIII-1968

(As last amended on 21 November 2017 – No XIII-791)


Vilnius

 

Article 1. Approval of the Criminal Code of the Republic of Lithuania

The Seimas hereby approves the Criminal Code of the Republic of Lithuania.

 

Article 2. Entry into Force of the Criminal Code of the Republic of Lithuania

1. The Criminal Code of the Republic of Lithuania shall enter into force concurrently and solely upon co-ordination with the new Code of Criminal Procedure of the Republic of Lithuania and the Penal Code of the Republic of Lithuania.

2. A specific date of the entry into force of all the codes indicated in paragraph 1 of this Article shall be set by a separate law.

 

Article 3. Procedure for Implementing the Criminal Code of the Republic of Lithuania

A procedure for implementing the Criminal Code of the Republic of Lithuania shall be laid down by a separate law.

 

I promulgate this Law passed by the Seimas of the Republic of Lithuania.

 

 

 

PRESIDENT OF THE REPUBLIC                                                   VALDAS ADAMKUS

 

                                                                                    APPROVED BY

Law No VIII-1968

of 26 September 2000

 

REPUBLIC OF LITHUANIA

CRIMINAL CODE

 

GENERAL PART

 

CHAPTER I

GENERAL PROVISIONS


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GENERAL PART

 

CHAPTER I

GENERAL PROVISIONS

 

Article 1. Purpose of the Criminal Code of the Republic of Lithuania

1. The Criminal Code of the Republic of Lithuania shall be a uniform criminal law the purpose whereof is to defend, by criminal law means, human and civil rights and freedoms, interests of the public and the State against criminal acts.

2. This Code shall:

1) define the acts which are crimes and misdemeanours and prohibit them;

2) establish penalties, penal and reformative sanctions for the acts provided for by this Code and compulsory medical treatment;

3) establish grounds for and conditions of criminal liability and the grounds for and conditions of releasing the persons who have committed criminal acts from criminal liability or a penalty.

3. The provisions of this Code have been harmonised with provisions of the legal acts of the European Union specified in Annex to this Code.

 

Article 2. Basic Provisions of Criminal Liability

1. A person shall be held liable under this Code only when the act committed by him is forbidden by a criminal law in force at the time of commission of the criminal act.

2. Ignorance of the law shall not release a person from criminal liability.

3. A person shall be held liable under a criminal law only when he is guilty of commission of a criminal act and only if at the time of commission of the act the conduct of the person could have been reasonably required to conform to the requirements of law.

4. Only a person whose act as committed corresponds to a definition of the body of a crime or misdemeanour provided for by a criminal law shall be liable under the criminal law.

5. Penalties, penal or reformative sanctions and compulsory medical treatment shall be imposed only in accordance with the law.

6. No one may be punished for the same criminal act twice.

 

CHAPTER II

VALIDITY OF A CRIMINAL LAW


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CHAPTER II

VALIDITY OF A CRIMINAL LAW

 

Article 3. Term of Validity of a Criminal Law

1. The criminality of an act and punishability of a person shall be determined by a criminal law in force at the time of the commission of that act. The time of the commission of a criminal act shall be the time of an act (or omission) or the time of occurrence of the consequences provided for by the criminal law, where the occurrence of those consequences was desired at a different time.

2. A criminal law nullifying the criminality of an act, commuting a penalty or in otherwise mitigating legal circumstances for the person who committed the criminal act shall have a retroactive effect, i.e., it shall apply to the persons who committed the criminal act prior to the coming into force of such a law, also to the persons serving a sentence and those with previous convictions.

3. A criminal law establishing the criminality of an act, imposing a more severe penalty upon or otherwise aggravating legal circumstances of the person who has committed the criminal act shall have no retroactive effect, with the exception of the provisions of this Code establishing liability for genocide (Article 99), treatment of persons prohibited under international law (Article 100), killing of persons protected under international humanitarian law (Article 101), deportation or transfer of civilians (Article 102), causing bodily harm to, torture or other inhuman treatment of persons protected under international humanitarian law or violation of protection of their property (Article 103), forcible use of civilians or prisoners of war in the armed forces of the enemy (Article 105), destruction of protected objects or plunder of national valuable properties (Article 106), aggression (Article 110), prohibited military attack (Article 111), use of prohibited means of warfare (Article 112), negligent performance of the commander’s duties (Article 1131).

 

4. Only the penal or reformative sanctions as well as medical treatment measures provided for by a criminal law in force at the time of passing of a court judgment shall be imposed. Extended confiscation of property shall be imposed only if it is provided for by a criminal law in force at the time of commission of an act prohibited by this Code.


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Article 4. Validity of a Criminal Law in Respect of the Persons who have Committed Criminal Acts within the Territory of the State of Lithuania or Onboard the Vessels or Aircraft Flying the Flag or Displaying Marks of Registry of the State of Lithuania

1. The persons who have committed criminal acts within the territory of the State of Lithuania or onboard the vessels or aircraft flying the flag or displaying marks of registry of the State of Lithuania shall be held liable under this Code.

2. The place of commission of a criminal act shall be the place in which a person acted or ought to have acted or could have acted or the place in which the consequences provided for by a criminal law occurred. The place of commission of a criminal act by accomplices shall be the place in which the criminal act was committed or, if one of the accomplices acted elsewhere, the place where he acted.

3. A single criminal act committed both in the territory of the State of Lithuania and abroad shall be considered to have been committed in the territory of the Republic of Lithuania if it was commenced or completed or discontinued in this territory.

4. The issue of criminal liability of the persons who enjoy immunity from criminal jurisdiction under international law and commit a criminal act in the territory of the Republic of Lithuania shall be decided in accordance with international treaties of the Republic of Lithuania and this Code.

 

Article 5. Criminal Liability of Citizens of the Republic of Lithuania and Other Permanent Residents of Lithuania for the Crimes Committed Abroad

Citizens of the Republic of Lithuania and other permanent residents of Lithuania shall be held liable for the crimes committed abroad under this Code.

 

Article 6. Criminal Liability of Aliens for the Crimes Committed Abroad against the State of Lithuania

The aliens who do not have a permanent residence in the Republic of Lithuania shall be liable under a criminal law where they commit crimes abroad against the State of Lithuania as provided for in Articles 114-128 of this Code.


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Article 7. Criminal Liability for the Crimes Provided for in International Treaties

Persons shall be held liable under this Code regardless of their citizenship and place of residence, also of the place of commission of a crime and whether the act committed is subject to punishment under laws of the place of commission of the crime, where they commit the following crimes subject to liability under international treaties:

1) crimes against humanity and war crimes (Articles 99-1131);

2) trafficking in human beings (Article 147);

3) purchase or sale of a child (Article 157);

4) production, storage or handling of counterfeit currency or securities (Article 213);

5) property laundering (Article 216);

6) bribery (Article 225);

7) trading in influence (Article 226);

8) graft (Article 227);

9) piracy (Article 2511);

10) acts of terrorism and crimes related to terrorist activity (Article 2521(1) and (2);

11) unlawful handling of nuclear or radioactive materials or other sources of ionising radiation (Articles 256, 2561 and 257);

12) the crimes related to possession of narcotic or psychotropic, toxic or highly active substances (Articles 259-269);

13) crimes against the environment (Articles 270, 2701, 2702, 2703, 271, 272 and 274).


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Article 8. Criminal Liability for the Crimes Committed Abroad

1. A person who has committed abroad the crimes provided for in Articles 5 and 6 of this Code shall be held criminally liable only where the committed act is recognised as a crime and is punishable under the criminal code of the state of the place of commission of the crime and the Criminal Code of the Republic of Lithuania. Where a person who has committed a crime abroad is prosecuted in the Republic of Lithuania, but a different penalty is provided for this crime in each country, the person shall be subject to a penalty according to laws of the Republic of Lithuania, however it may not exceed the maximum penalty specified in criminal laws of the state of the place of commission of the crime.

2. A person who has committed the crimes provided for in Articles 5, 6, and 7 of the Criminal Code of the Republic of Lithuania shall not be held liable under this Code where he:

1) has served the sentence imposed by a foreign court;

2) has been released from serving the entire or a part of the sentence imposed by a foreign court;

3) has been acquitted or released from criminal liability or punishment by a foreign court’s judgment, or no penalty has been imposed by reason of the statute of limitation or on other legal grounds provided for in that state.

3. A citizen of the Republic of Lithuania or another person permanently residing in Lithuania who has committed abroad one or more crimes provided for in Article 149(3) and (4), Article 150(3) and (4), Article 151(2), Article 1511, Article 1521, Articles 153 and 157, Article 162(1), Article 307(3), Article 308(3) and Article 309(2) and (3) of this Code shall be punishable regardless of whether the committed act is punishable under the criminal law of the state of commission of the crime.


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Article 9. Extradition

1. A citizen of the Republic of Lithuania who has committed a criminal act in the Republic of Lithuania or in the territory of another state may be extradited to the foreign state or surrendered to the International Criminal Court solely in accordance with a treaty to which the Republic of Lithuania is party or a resolution of the United Nations Security Council.

2. An alien who has committed a criminal act in the Republic of Lithuania or in the territory of another state shall be extradited to the respective state or surrendered to the International Criminal Court solely in accordance with a treaty to which the Republic of Lithuania is party or a resolution of the United Nations Security Council.

3. It shall be allowed not to extradite a citizen of the Republic of Lithuania or an alien where:

1) the committed act is not regarded as a crime or misdemeanour under this Code;

2) the criminal act has been committed within the territory of the State of Lithuania;

3) the person is being prosecuted for a crime of political nature;

4) the person has been convicted of the committed criminal act, acquitted or released from criminal liability or a penalty;

5) the person may be subject to capital punishment for the committed crime in another state;

6) the statute of limitations for the passing or execution of a judgment of conviction has expired;

7) the person is released from a penalty under an act of amnesty or by granting clemency;

8) there exist other grounds provided for by international treaties of the Republic of Lithuania.

4. The persons who have been granted asylum or temporary protection in accordance with laws of the Republic of Lithuania shall not be punishable under a criminal law of the Republic of Lithuania for the criminal acts for which they were prosecuted abroad and shall not be extradited to foreign states, except in the cases provided for by Article 7 of this Code.


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Article 91. Surrender of a Person under a European Arrest Warrant

1. On the basis of the European arrest warrant, a citizen of the Republic of Lithuania or an alien who is suspected of commission of a criminal act in the issuing Member State or who has been imposed a custodial sentence, but has not served it shall be surrendered to the issuing Member State.

2. A citizen of the Republic of Lithuania or an alien shall be surrendered under the European arrest warrant only where the criminal act committed by him is punishable, according to laws of the issuing Member State, by a custodial sentence of at least one year and where the European arrest warrant has been issued in connection with the execution of a custodial sentence which has already been imposed, only where the duration of the sentence imposed is at least four months.

3. A citizen of the Republic of Lithuania or an alien shall not be surrendered to the issuing Member State where:

1) surrender of the person under the European arrest warrant would violate fundamental human rights and/or freedoms;

2) the person has been released in the Republic of Lithuania from penalty for the act which has been committed by him and on which the European arrest warrant is based under an act of amnesty or by granting clemency.

3) the person was convicted in the Republic of Lithuania or another state for the criminal act which he had committed and on which the European arrest warrant is based, and the sentence imposed has been served, is currently being served or may no longer be executed under the law of the sentencing Member State;

4) at the time of commission of a criminal act, the person was not of the age at which the act committed by him becomes subject to criminal liability under criminal laws of the Republic of Lithuania;

5) the act committed does not constitute a crime or misdemeanour under this Code, within the exception of the cases when the European arrest warrant has been issued for the criminal act provided for in paragraph 2 of Article 2 of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, and the criminal laws of the issuing Member State provide for a custodial sentence of at least three years for this criminal act;

6) the person has been acquitted or released from criminal liability or punishment in the Republic of Lithuania or another Member State of the European Union for the criminal act which he has committed and on which the European arrest warrant is based;

7) the European arrest warrant has been issued for a criminal act which falls within the jurisdiction of the Republic of Lithuania under its own criminal law, and the statute of limitation for the passing of a judgment of conviction as provided for in Article 95 of this Code and the statute of limitations for the execution of the judgment of conviction as provided for in Article 96 of this Code have expired;


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8) the criminal act has been committed outside the territory of the issuing Member State, and criminal law of the Republic of Lithuania could not apply to the same act where it would have been committed outside the territory of the State of Lithuania or not onboard a ship or aircraft flying the flag or displaying marks of registry of the State of Lithuania.

4. A citizen of the Republic of Lithuania or an alien may, taking into consideration facts of a case and interests of justice, be surrendered to the issuing Member State where:

1) criminal proceedings have been initiated in the Republic of Lithuania in respect of the criminal act which the person has committed and on which the European arrest warrant is based;

2) initiation of criminal proceedings in the Republic of Lithuania in respect of the criminal act committed by the person has been refused, or the criminal proceedings initiated have been terminated;

3) the European arrest warrant has been issued for the purposes of execution of a custodial sentence imposed on a citizen of the Republic of Lithuania or a person permanently residing in the Republic of Lithuania, and the Republic of Lithuania undertakes execution of this sentence;

4) the criminal act has been committed in the territory of the State of Lithuania or onboard a ship or aircraft flying the flag or displaying marks of registry of the State of Lithuania;

5) the European arrest warrant lacks the information required for the taking of a decision on the person’s surrender, and the issuing Member State fails to provide it within the time limit laid down.

5. If a European arrest warrant is issued in connection with a custodial sentence imposed on a citizen of the Republic of Lithuania or an alien, and he fails to appear in person in court proceedings and a decision is taken to impose the custodial sentence, the surrender of the citizen of the Republic of Lithuania or the alien may be refused, except where the European arrest warrant indicates that according to requirements of the national legislation of the issuing Member State of the European Union:

1) the person has been timely summoned in person or the person received official information about the date and place of the scheduled hearing of his case in court by other means in such a way that it is clear that he knew about the scheduled hearing in court, also the person was informed that a decision may be rendered in absentia, or

2) the person, having been informed of the scheduled hearing, has authorised his chosen defence counsel or appointed public defender to defend him at the hearing, and the defence counsel/public defender actually defends the person at the hearing, or


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3) after the person is served the decision and expressly informed of the right to a retrial or the right to lodge an appeal and to be present at the judgment, with a possibility of re-examining the case, including fresh evidence, on merits, and revoking the original decision, the person expressly states that he does not contest the decision or within a specified time limit does not apply for a retrial or lodge an appeal, or

4) in the case where the person has not been served the decision in person, but the European arrest warrant confirms that, after the person's surrender, this decision will be immediately served in person and the person will be expressly informed of the right to a retrial or the right to lodge an appeal and to be present at the judgment, with a possibility of re-examining the case, including fresh evidence, on merits, and revoking the original decision, and that the person will be informed of a time limit within which he must apply for a retrial or lodge an appeal, as specified in the European arrest warrant.

6. Where the European arrest warrant has been issued for a criminal act which, under the laws of the issuing Member State, is punishable by life custodial sentence, a citizen of the Republic of Lithuania or an alien shall be surrendered subject to the condition that the laws of the issuing Member State provide for a possibility for the convict to apply for release from such penalty or mitigation thereof not later than upon serving twenty years of the custodial sentence.

7. Where the European arrest warrant has been issued for the purposes of prosecution, a citizen of the Republic of Lithuania or a permanent resident of the Republic of Lithuania may be surrendered subject to the condition that the person against whom the issuing Member State has passed a judgment will be returned to the Republic of Lithuania in order to serve the custodial sentence imposed on him at the request of the person surrendered or where the Prosecutor General’s Office of the Republic of Lithuania requires so. This provision does not apply if one or more grounds indicated in the Law of the Republic of Lithuania on Mutual Recognition of Judgments of the European Union Member States in Criminal Matters are established leading to a refusal by the Republic of Lithuania to take charge of the execution of a custodial sentence.


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CHAPTER III

CRIME AND MISDEMEANOUR

 

Article 10. Types of Criminal Acts

Criminal acts shall be divided into crimes and misdemeanours.

 

Article 11. Crime

1. A crime shall be a dangerous act (act or omission) forbidden under this Code and punishable with a custodial sentence.

2. Crimes shall be committed with intent and through negligence. Premeditated crimes shall be divided into minor, less serious, serious and grave crimes.

3. A minor crime shall be a premeditated crime punishable, under the criminal law, by a custodial sentence of the maximum duration of three years.

4. A less serious crime shall be a premeditated crime punishable, under the criminal law, by a custodial sentence of the maximum duration in excess of three years, but not exceeding six years in prison.

5. A serious crime shall be a premeditated crime punishable, under the criminal law, by a custodial sentence of the maximum duration in excess of six years, but not exceeding ten years in prison.

6. A grave crime shall be a premeditated crime punishable, under the criminal law, by a custodial sentence of the maximum duration in excess of ten years.

 

Article 12. Misdemeanour

A misdemeanour shall be a dangerous act (act or omission) forbidden under this Code which is punishable by a non-custodial sentence, with the exception of arrest.

 

Article 13. Age for Liability under the Criminal Law

1. A person who, prior to the time of commission of a crime or misdemeanour, had attained the age of sixteen years or, in the cases provided for in paragraph 2 of this Law, fourteen years shall be considered liable under this Code.

2. A person who, prior to the time of commission of a crime or misdemeanour, had attained the age of fourteen shall be held liable for murder (Article 129), serious impairment to health (Article 135), rape (Article 149), sexual harassment (Article 150), theft (Article 178), robbery (Article 180), extortion of property (Article 181), destruction of or damage to property (paragraph 2 of Article 187), seizure of a firearm, ammunition, explosives or explosive materials (Article 254), theft, racketeering or other illicit seizure of narcotic or psychotropic substances (Article 263), damage to vehicles or roads and facilities thereof (Article 280).

3. A person who, prior to the time of commission of the dangerous act provided for by this Code, had not attained the age of fourteen years may be subject to reformative sanctions or other measures in accordance with the procedure laid down by laws of the Republic of Lithuania.


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Article 14. Forms of Guilt

A person shall be found guilty of commission of a crime or misdemeanour where he has committed this act with intent or through negligence.

 

Article 15. Premeditated Crime and Misdemeanour

1. A crime or misdemeanour shall be premeditated where it has been committed with a specific or general intent.

2. A crime or misdemeanour shall be committed with a specific intent where:

1) when committing it, the person was aware of the dangerous nature of the criminal act and desired to engage therein;

2) when committing it, the person was aware of the dangerous nature of the criminal act, anticipated that his act or omission might cause the consequences provided for by this Code and desired that they arise.

3. A crime or a misdemeanour shall be committed with a general intent where, when committing it, the person was aware of the dangerous nature of the criminal act, anticipated that his act or omission might cause the consequences provided for by this Code and, though he did not desire that they arise, consciously allowed the consequences to arise.

 

Article 16. Commission of a Crime and Misdemeanour Through Negligence

1. A crime or misdemeanour shall be committed through negligence where it has been committed through a criminally false assumption or criminal negligence.

2. A crime or a misdemeanour shall be committed through a criminally false assumption if the person who committed the act had anticipated that his act or omission may cause the consequences provided for by this Code, but recklessly expected to avoid them.

3. A crime or a misdemeanour shall be committed through criminal negligence if the person who committed it had not anticipated that his act or omission might cause the consequences provided for by this Code, although the person could and ought to have anticipated such a result based the circumstances of the act and his personal traits.

4. A person shall be punishable for commission of a crime or misdemeanour through negligence solely in the cases provided for separately in the Special Part of this Code.

 

Article 17. Legal Incapacity

1. A person shall be considered legally incapacitated where, at the time of commission of an act forbidden under this Code, he was unable to appreciate the dangerous nature of the act or to control his behaviour as a result of a mental disorder.

2. A person found legally incapacitated by a court shall not be held liable under this Code for a committed dangerous act. The court may apply to him the compulsory medical treatment  provided for in Article 98 of this Code.


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Article 18. Diminished Capacity

1. A court shall find a person to be of diminished capacity where, at the time of commission of an act forbidden under this Code, he lacked a capacity sufficient to fully appreciate the dangerous nature of the criminal act or to control his behaviour as a result of a mental disorder, even though the disorder is not a sufficient ground for finding him legally incapacitated.

2. A person who has committed a misdemeanour, a negligent or minor or less serious premeditated crime and whom a court finds to be of diminished capacity shall be liable under a criminal law, however, a penalty imposed upon him may be commuted under Article 59 of this Code, or he may be released from criminal liability and be subject to the penal sanctions provided for in Article 67 of this Code or the compulsory medical treatment provided for in Article 98 of this Code.

3. A person who has committed a serious or a grave crime and is found by a court to be of diminished capacity shall be held liable under a criminal law, however a penalty imposed upon him may be commuted under Article 59 of this Code.

 

Article 19. Person’s Liability for a Criminal Act Committed under the Influence of Alcohol, Narcotic, Psychotropic or Other Psychoactive Substances

1. A person who has committed a criminal act under the influence of alcohol, narcotic, psychotropic or other psychoactive substances shall not be released from criminal liability.

2. A person who committed a misdemeanour, a negligent or minor or less serious premeditated crime as a result of intoxication against his will and hence lacked a capacity sufficient to fully appreciate the dangerous nature of the criminal act or to control his behaviour at the time of his conduct shall be released from criminal liability.

3. A person who has committed a serious or a grave crime under the conditions indicated in paragraph 2 of this Article shall be held liable under a criminal law, however the penalty imposed upon him may be commuted under Article 59 of this Code.


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Article 20. Criminal Liability of a Legal Entity

1. A legal entity shall be held liable solely for the criminal acts the commission whereof is subject to liability of a legal entity as provided for in the Special Part of this Code.

2. A legal entity shall be held liable for the criminal acts committed by a natural person solely where a criminal act was committed for the benefit or in the interests of the legal entity by a natural person acting independently or on behalf of the legal entity, provided that he, while occupying an executive position in the legal entity, was entitled:

1) to represent the legal entity, or

2) to take decisions on behalf of the legal entity, or

3) to control activities of the legal entity.

3. A legal entity may be held liable for criminal acts also where they have been committed by an employee or authorised representative of the legal entity on the instruction or with the permission of or as a result of insufficient supervision or control by the person indicated in paragraph 2 of this Article.

4. A legal entity may be held liable for the criminal acts committed under the conditions indicated in paragraph 2 or 3 of this Article by another legal entity controlled by or representing it, where they have been committed for the benefit of the abovementioned legal entity on the instruction or with the permission of or as a result of insufficient supervision or control by a person holding a management position therein or a person authorised by him.

5. The criminal liability of a legal entity shall not release from criminal liability a natural person who has committed, organised, instigated or assisted in commission of a criminal act. The criminal liability of a legal entity for a criminal act committed, organised, instigated or assisted in by a natural person for the benefit or in the interests of the legal entity shall not be released by the criminal liability of the natural person, nor by the fact that the natural person is released from criminal liability for this act or is not held liable for other reasons.

6. The State, a municipality, a state and municipal institution and agency as well as an international public organisation shall not be held liable under this Code. The state and municipal enterprises, also the public establishments whose owner or stakeholder the State or a municipality, also the public limited liability companies and private limited liability companies whose shares, in whole or in part, belong by the right of ownership to the State or the municipality shall not be considered as state and municipal institutions and agencies and shall be held liable under this Code.

 

CHAPTER IV

STAGES AND FORMS OF A CRIMINAL ACT


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CHAPTER IV

STAGES AND FORMS OF A CRIMINAL ACT

 

Article 21. Preparation for Commission of a Crime

1. Preparation for the commission of a crime shall be a search for or adaptation of means and instruments, development of an action plan, engagement of accomplices or other intentional creation of the conditions facilitating the commission of the crime. A person shall be held liable solely for preparation to commit a serious or grave crime.

2. A person shall be held liable for preparation to commit a crime according to paragraph 1 of this Article and an article of this Code providing for an appropriate completed crime. A penalty imposed upon such a person may be commuted under Article 62 of this Code.

 

Article 22. Attempt to Commit a Criminal Act

1. An attempt to commit a criminal act shall be an intentional act or omission which marks the direct commencement of a crime or misdemeanour where the act has not been completed by reason of the circumstances beyond the control the offender.

2. An attempt to commit a criminal act shall also occur when the offender is not aware that his act cannot be completed, because his attempt is directed at an inappropriate target or he is applying improper means.

3. A person shall be held liable for an attempt to commit a criminal act according to paragraph 1 or 2 of this Article and an article of this Code providing for an appropriate completed crime. A penalty imposed upon such a person may be commuted under Article 62 of this Code.

 

Article 23. Voluntary Renunciation of Completion of a Criminal Act

1. A person shall voluntarily renounce completion of a crime or a misdemeanour when he voluntarily terminates an initiated criminal act while being aware that it can be completed.

2. A person who voluntarily renounces completion of a crime or misdemeanour shall be held liable under this Code solely in cases where the committed act constitutes the body of another crime or misdemeanour.

3. When several persons participate in the commission of a criminal act, the organiser or abettor who voluntarily renounces completion of the act shall not be liable under this Code if he has made every effort within his reasonable power to prevent commission by his accomplices of the criminal act which he had organised or instigated, and this act has not been committed or has not caused any consequences. Moreover, an accessory shall not be held liable under this Code if he voluntarily refused to participate in a criminal act, informed thereof other accomplices or law enforcement institutions and that act has not been committed or it has been committed without his assistance.

4. A person who attempted to voluntarily renounce completion of a crime or misdemeanour, but failed to avoid the criminal act or its consequences shall be held liable under a criminal law, however, a penalty imposed upon him may be commuted under Article 59 of this Code.


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Article 24. Complicity and Types of Accomplices

1. Complicity shall be the intentional joint participation in the commission of a criminal act of two or more conspiring legally capable persons who have attained the age specified in Article 13 of this Code.

2. Accomplices in a criminal act shall include a perpetrator, an organiser, an abettor and an accessory.

3. A perpetrator shall be a person who has committed a criminal act either by himself or by involving legally incapacitated person or the persons who have not yet attained the age specified in Article 13 of this Code or other persons who are not guilty of that act. If the criminal act has been committed by several persons acting together, each of them shall be considered a perpetrator/co-perpetrator.

4. An organiser shall a person who has formed an organised group or a criminal association, has been in charge thereof or has co-ordinated the activities of its members or has prepared a criminal act or has been in charge of commission thereof.

5. An abettor shall be a person who has incited another person to commit a criminal act.

6. An accessory shall be a person who has aided in the commission of a criminal act through counselling, issuing instructions, providing means or removing obstacles, protecting or shielding other accomplices, who has promised in advance to conceal the offender, hide the instruments or means of commission of the criminal act, the traces of the act or the items acquired by criminal means, also a person who has promised in advance to handle the items acquired or produced in the course of the criminal act.

 

Article 25. Forms of Complicity

1. Forms of complicity shall be a group of accomplices, an organised group or a criminal association.

2. A group of accomplices shall be one in which two or more persons agree, at any stage of the commission of a criminal act, on the commission, continuation or completion of the criminal act, where at least two of them are perpetrators.

3. An organised group shall be one in which two or more persons agree, at any stage of the commission of a criminal act, on the commission of several crimes or of one less serious, serious or grave crime, and in committing the crime each member of the group performs a certain task or is given a different role.

4. A criminal association shall be one in which three or more persons linked by permanent mutual relations and division of roles or tasks join together for the commission of a joint criminal act – one or several less serious, serious and grave crimes. An anti-state group or organisation and a terrorist group shall be considered equivalent to a criminal association.


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Article 26. Criminal Liability of Accomplices

1. Accomplices shall be held liable solely for the criminal acts as committed by the perpetrator which are covered by their intent.

2. Where a perpetrator’s criminal act was discontinued at the stage of preparation for commission of or an attempt to commit it, an organiser, an abettor and an accessory shall be held liable for complicity in preparation or attempt to commit the criminal act.

3. Where there are the circumstances eliminating, mitigating or aggravating the liability of one of accomplices, they shall not be taken into account when determining the criminal liability of other accomplices

4. An organiser, an abettor or an accessory shall be held liable under an article of the Code which provides for liability for an act committed by a perpetrator and under Article 24(4), (5) or (6) of this Code.

5. Members of a criminal association shall be held liable under Article 249 of this Code as perpetrators regardless of their roles in the commission of a criminal act which is covered by their intent.


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Article 27. Repeat Offence

1. Repeat offence shall mean a situation when a person already convicted for a premeditated crime which he committed after attaining the age of majority, where his prior conviction has not expired yet or has not been expunged in accordance with the procedure laid down by laws, repeatedly commits one or several premeditated crimes. Such a person shall be considered a repeat offender.

2. Repeat offence shall be considered dangerous, and the offender may be recognised as a dangerous repeat offender by a court where this person:

1) commits a new grave crime while having an unexpired conviction for the commission of a grave crime;

2) already being a repeat offender, commits a new grave crime;

3) already being a repeat offender, where at least one of the crimes constituting a repeat offence is a grave crime, commits a new serious crime;

4) commits a new serious crime while having three prior convictions for the commission of serious crimes.

3. When passing a judgment of conviction for the most recent crime, a court may recognise a person as a dangerous repeat offender having regard to the offender’s personality, the extent to which criminal intentions have been accomplished, the nature of participation in the commission of crimes and other circumstances of the case.

4. When deciding on the recognition of a person as a dangerous repeat offender, a court shall have no regard to prior convictions for the crimes committed by the person below the age of 18 years, the crimes committed through negligence, the crimes for which conviction has expired or has been expunged, also the crimes committed abroad in the cases provided for in Article 97(9) of this Code.

5. The recognition of a person as a dangerous repeat offender shall no longer be valid if his prior convictions expire or are expunged.

 

CHAPTER V

CIRCUMSTANCES ELIMINATING CRIMINAL LIABILITY


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CHAPTER V

CIRCUMSTANCES ELIMINATING CRIMINAL LIABILITY

 

Article 28. Self-Defence

1. A person shall have the right to self-defence. He may exercise this right regardless of whether he had the possibility of avoiding the attempt or applying for assistance to other persons or authorities.

2. A person shall not be held liable under this Code where he, while acting within the limits permitted by self-defence, committed an act formally having the features of a crime or misdemeanour provided for in a criminal law when defending himself or another person, property, inviolability of a dwelling, other rights, interests of society or the State against an initiated or imminent dangerous attempt.

3. The limits of self-defence shall be exceeded when a murder is committed or a serious health impairment is caused with a specific intent, where defence has been clearly disproportionate to the nature and dangerousness of an attempt. The limits of self-defence shall not be considered to have been exceeded by reason of extreme confusion or fright caused by the dangerous attempt or an act committed in the course of defence against breaking into a dwelling.

4. A person who has exceeded the limits of self-defence shall be held criminally liable, however a penalty imposed upon him may be commuted under Article 62 of this Code.

 

Article 29. Arrest of a Person Who has Committed a Criminal Act

1. A person shall not be held liable under this Code for his actions when he causes property damage, a minor health impairment or a serious health impairment through negligence to a person who is actively attempting to escape the arrest by chasing, attempting to stop, preventing the escape or by other actions, and a serious health impairment when arresting on the spot of a crime a person who has committed or attempted to commit a premeditated murder, provided it was not otherwise possible to arrest the person who has committed the criminal act.

2. Actions of a person restraining the resistance of a person who has committed a criminal act shall be subject to the rules for self-defence as stipulated in Article 28 of this Code.

 

Article 30. Discharge of Professional Duty

1. A person shall not be held liable under this Code for the damage caused in charge of professional duty, provided he has not exceeded the authority granted to him by laws or other legal acts.

2. A person shall be held liable under this Code for the damage caused in charge of professional duty where he has exceeded the authority granted to him by laws or other legal acts, however a penalty imposed upon him may be commuted under Article 59 of this Code.


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Article 31. Immediate Necessity

1. A person shall not be held liable under the criminal law for an act committed in an attempt to avert the danger which threatens him, other persons or their rights, public or state interests, where this danger could not have been averted by other means and where the damage caused is less than the damage attempted to be averted.

2. A person who creates a dangerous situation by his actions may invoke the provisions of immediate necessity only when the dangerous situation arose through negligence.

3. A person may not justify a failure to perform a duty by invoking the provisions of immediate necessity, where he is under the obligation to act under the conditions of an increased degree of danger according to his profession, the position held or due to other circumstances.

 

Article 32. Performance of an Assignment of a Law Enforcement Institution

1. A person who lawfully carries out actions imitating a criminal act shall not be held liable under this Code.

2. A person shall not be held criminally liable where he participated in the activities of a criminal association or an organised group and in the criminal acts committed by it while performing another lawful assignment of a law enforcement institution and did not exceed the limits of this assignment.

3. A person shall be held criminally liable where, while carrying out actions imitating a criminal act or performing another assignment of a law enforcement institution, he exceeded the limits of this assignment, however a penalty imposed upon him may be commuted under Article 59 of this Code.

4. Law enforcement institutions shall be the police, other bodies of pre-trial investigation and the prosecutor’s office, also entities of criminal intelligence.

 

Article 33. Execution of an Order

1. A person shall not be held criminally liable for an act which he committed while executing a lawful order, ordinance or instruction.

2. A person shall be held criminally liable where he executed an order, ordinance or instruction known to be unlawful.

3. A person who refuses to execute an order, ordinance or instruction which is unlawful shall not be held criminally liable. Such a person may be held liable under this Code only if the act committed by him constitutes the body of another criminal act.

 

Article 34. Justifiable Professional or Economic Risk

1. A person shall not be held liable under this Code for the actions which, although they incur the consequences provided for by a criminal law, have been carried out with a justifiable professional or economic risk and for a publicly beneficial purpose.

2. The risk shall be deemed justifiable where the committed act is in line with the contemporary science and technology, and it was not possible to attain the specified objective by carrying out the actions not involving risk, and where the person taking the risk has taken the necessary precautions to prevent damage to the interests protected by the law.


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Article 35. Scientific Experiment

1. A person who incurs damage while conducting a lawful scientific experiment shall not be held liable under this Code where the experiment was conducted in compliance with scientifically approved methods, the problem under investigation is of an exceptional scientific significance and the researcher has taken the necessary precautions to prevent damage to the interests protected by the law.

2. No scientific experiment shall be permitted without the voluntary consent of the person participating in the experiment, who must be informed of the possible consequences.

3. A pregnant woman, her foetus, young child, a mentally ill person and a person in confinement may not be subjected to scientific experiments, with the except of the cases provided for by the law.

 

CHAPTER VI

RELEASE FROM CRIMINAL LIABILLITY

 

Article 36. Release from Criminal Liability When a Person or Criminal Act Loses Its Dangerousness

A person who commits a criminal act shall be released from criminal liability where a court acknowledges that before opening of the hearing of the case in the court this person or the act committed thereby had lost its dangerous character due to a change in circumstances.

 

Article 37. Release from Criminal Liability due to Minor Relevance of a Crime

A person who commits a crime may be released from criminal liability by a court where the act is recognised as being of minor relevance due to the extent of the damage incurred, the object of the crime or other peculiarities of the crime.


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Article 38. Release from Criminal Liability upon Reconciliation between the Offender and the Victim

1. A person who commits a misdemeanour, a negligent crime or a minor or less serious premeditated crime may be released by a court from criminal liability where:

1) he has confessed to commission of the criminal act, and

2) voluntarily compensated for or eliminated the damage incurred to a natural or legal person or agreed on the compensation for or elimination of this damage, and

3) reconciles with the victim or a representative of a legal person or a state institution, and

4) there is a basis for believing that he will not commit new criminal acts.

2. A dangerous repeat offender, also a person who had already been released from criminal liability on the basis of reconciliation with the victim, where less than four years had lapsed from the day of reconciliation until the commission of a new act, may not be released from criminal liability on the grounds provided for in paragraph 1 of this Article.

3. If a person released from criminal liability under paragraph 1 of this Article commits a misdemeanour or a negligent crime within the period of one year or fails, without valid reasons, to comply an agreement approved by a court on the terms and conditions of and procedure for compensating for the damage, the court may revoke its decision on the release from criminal liability and decide to prosecute the person for all the criminal acts committed.

4. If a person released from criminal liability under paragraph 1 of this Article commits a new premeditated crime within the period of one year, the previous decision releasing him from criminal liability shall become invalid and a decision shall be adopted on the prosecution of the person for all the criminal acts committed.

 

Article 39. Release from Criminal Liability on the Basis of Mitigating Circumstances

A person who commits a misdemeanour or a negligent or minor premeditated crime may be released from criminal liability by a reasoned decision of the  court where:

1) he commits the criminal act for the first time, and

2) there are at least two mitigating circumstances provided for in paragraph 1 of Article 59 of this Code, and

3) there are no aggravating circumstances.


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Article 391. Release from Criminal Liability When a Person Actively Assisted in Detecting the Criminal Acts Committed by Members of an Organised Group or a Criminal Association

1. A person who is suspected of participation in the commission of criminal acts by an organised group or a criminal association or belonging to a criminal association may be released from criminal liability where he confesses his participation in the commission of such a criminal act or his membership of the criminal association and where he actively assists in detecting the criminal acts committed by members of the organised group or the criminal association.

2. Paragraph 1 of this Article shall not apply to a person who participated in the commission of a premeditated murder or who had already been released from criminal liability on such grounds, also to the organiser or leader of an organised group or a criminal association.


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Article 40. Release from Criminal Liability on Bail

1. A person who commits a misdemeanour, a negligent crime or a minor or less serious intentional crime may be released by a court from criminal liability subject to a request by a person worthy of a court’s trust to transfer the offender into his responsibility on bail. Bail may be set with or without a surety.

2. A person may be released from criminal liability by a court on bail where:

1) he commits the criminal act for the first time, and

2) he fully confesses his guilt and regrets having committed the criminal act, and

3) at least partly compensates for or eliminates the damage incurred or undertakes to compensate for such where it has been incurred, and

4) there is a basis for believing that he will fully compensate for or eliminate the damage incurred, will comply with laws and will not commit new criminal acts.

3. A bailsman may be parents of the offender, close relatives or other persons worthy of a court’s trust. When taking a decision, the court shall take account of the bailsman’s personal traits or nature of activities and a possibility of exerting a positive influence on the offender.

4. The term of bail shall be set from one year up to three years.

5. When requesting to release a person on bail with a surety, a bailsman shall undertake to pay a surety in the amount specified by a court. Taking account of a bailsman’s personal traits and his financial situation, the court shall specify the amount of the surety or decide on release from criminal liability on bail without a surety. The bail bond shall be returned upon the expiry of the term of bail where a person subject to bail does not commit a new criminal act within the term of bail as laid down by the court.

6. A bailsman shall have the right to withdraw from bail. In this case, a court shall, taking account of the reasons for a withdrawal from bail, decide on the return of a surety, also on a person’s criminal liability for the committed criminal act, appointment of another bailsman or the person’s release from criminal liability.

7. If a person released from criminal liability on bail commits a new misdemeanour or negligent crime during the term of bail, a court may revoke its decision on the release from criminal liability and shall decide to prosecute the person for all the criminal acts committed.

8. If a person released from criminal liability on bail commits a new premeditated crime during the term of bail, the previous decision releasing him from criminal liability shall become invalid and the court shall decide to prosecute the person for all the criminal acts committed.

 

CHAPTER VII

PENALTY


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CHAPTER VII

PENALTY

 

Article 41. Penalty and Purpose Thereof

1. A penalty shall be a measure of compulsion applied by the State, which is imposed by a court’s judgement upon a person who has committed a crime or misdemeanour.

2. The purpose of a penalty shall be:

1) to prevent persons from committing criminal acts;

2) to punish a person who has committed a criminal act;

3) to deprive the convicted person of the possibility to commit new criminal acts or to restrict such a possibility;

4) to exert an influence on the persons who have served their sentence to ensure that they comply with laws and do not relapse into crime;

5) to ensure implementation of the principle of justice.

 

Article 42. Types of Penalties

1. The following penalties may be imposed on a person who commits a crime:

1) community service;

2) a fine;

3) restriction of liberty;

4) arrest;

5) fixed-term custodial sentence;

6) life custodial sentence.

2. The following penalties may be imposed on a person who commits a misdemeanour:

1) community service;

2) a fine;

3) restriction of liberty;

4) arrest.

3. Only one penalty may be imposed on a person for the commission of one crime or misdemeanour.

4. In the cases provided for in Articles 63 and 64 of this Code, two penalties may be imposed.

5. If more than two penalties of a different type are imposed for several committed crimes, a court shall, when imposing a final combined sentence, select two penalties from those imposed: one of them being the most severe penalty, and the other one selected at the discretion of the court.

6. A person who committed a criminal act may, together with a penalty and in accordance with Articles 67, 68, 681, 682, 72, 721, 722 and 723 of the Code, be imposed one or more of the following penal sanctions - prohibition of the exercise of a special right, deprivation of public rights, deprivation of the right to be employed in a certain position or to engage in certain activities, confiscation of property, the obligation to reside separately from the victim and/or prohibition to approach the victim closer that a prescribed distance, participation in programmes addressing violent behaviour, extended confiscation of property.

7. The types of penalties in respect of legal entities and peculiarities of imposition of penalties upon minors shall be stipulated by Articles 43 and 90 of this Code.


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Article 43. Types of Penalties in Respect of Legal Entities

1. The following penalties may be imposed upon a legal entity for the commission of a criminal act:

1) a fine;

2) restriction of operation of the legal entity;

3) liquidation of the legal entity.

2. Having imposed a penalty upon a legal entity, a court may also decide to announce this judgment in the media. The judgment whereby the court imposes the penalty upon the legal entity for the crimes provided rfor in Chapter XXXIII of this Code must be announced in the media.

3. Only one penalty may be imposed upon a legal entity for one criminal act.

4. The sanctions of articles of the Special Part of this Code shall not specify the penalties to which legal entities are subject. In imposing a penalty upon a legal entity, a court shall refer the list of penalties specified in paragraph 1 of this Article.

 

Article 44. Repealed as of 5 July 2011.

 

Article 45. Repealed as of 05 July 2011.


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Article 44. Repealed as of 5 July 2011.

 

Article 45. Repealed as of 05 July 2011.

 

Article 46. Community Service

1. Community service shall be ordered by a court in the cases provided for in the Special Part of this Code. The penalty of community service may be imposed only with the consent of the convict.

2. Community service may be imposed for a period from one month up to one year. The term of the penalty shall be counted in months. A person sentenced to perform community service shall be under the obligation to work for the community without remuneration from 10 to 40 hours per month during the time period set by the court.

3. The sanction of an article shall not indicate the time of performance and number of hours of community service. This shall be determined by a court when imposing the penalty, however this time may not exceed 480 hours for a crime and 240 hours for a misdemeanour.

4. The service to be performed by the convict shall be selected by the institution executing the penalty assisted by executive institutions of municipalities.

5. Where for objective reasons a person is not able to perform the community service imposed upon him under this Article, a court may release him from this penalty by imposing in lieu thereof a penal sanction provided for in Chapter IX of this Code.

6. Where a person fails, for valid reasons, to perform the required number of hours of community service within a time limit laid down by a court, the court may extend the time limit for performing community service until the person performs the required number of hours.

7. Where a person evades performance of community service, the institution executing the penalty shall warn the convict of possible legal consequences. Where the person continues evading the serving of the penalty of community service upon receiving the warning, a court may, on the recommendation of the institution executing the penalty, replace community service with a fine or arrest. Community service shall be replaced with a fine or arrest in accordance with the rules specified in Articles 47, 49 and 65 of this Code.

8. Where, after a judgement becomes effective, a person refuses to perform community service, a court shall, on the recommendation of the institution executing the penalty, replace community service with a fine or arrest in accordance with the rules specified in Articles 47, 49 and 65 of this Code.


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Article 47. Fine

1. A fine shall be a pecuniary penalty imposed by a court in the cases provided for in the Special Part of this Code.

2. A fine shall be calculated in the amounts of minimum standard of living (MSL).

3. The amounts of a fine shall be determined as follows:

1) for a misdemeanour – in the amount from 15 MSLs up to 500 MSLs;

2) for a minor crime – in the amount from 50 MSLs up to 2 000 MSLs;

3) for a less serious crime – in the amount from 100 MSLs up to 4 000 MSLs;

4) for a serious crime – in the amount from 150 MSLs up to 6 000 MSLs;

5) for a grave crime – in the amount from 20 MSLs up to 750 MSLs.

4. The amount of a fine for a legal entity shall be from 200 MSLs up to 100 000 MSLs.

5. The sanction of an article shall not indicate the amount of a fine for a committed criminal act. It shall be specified by a court when imposing the penalty.

6. A fine imposed for the criminal acts provided for in Chapter XXXIII of this Code may not be lower than the amount of the property damage caused by the subject of a criminal act or the offender or the amount of property benefit received or sought by the offender for himself or for another person. Where there are several criteria for calculating the amount of the fine, the amount of the fine to be imposed shall be calculated on the basis of the criterion whose value, as expressed in money terms, is the highest. Where a fine is imposed in accordance with the rules laid down in this paragraph, the final fine imposed by a court for the criminal acts provided for in Chapter XXXIII of this Code may exceed the maximum amounts of a fine specified in paragraphs 3 and 4 of this Article but may not be lower than the minimum amounts of a fine provided for in paragraphs 3 and 4 of this Article.

7. Where a person does not possess sufficient funds to pay a fine imposed by a court, the court may, in compliance with the rules stipulated in Article 65 of this Code and subject to the convict’s consent, replace this penalty with community service.

8. Where a person evades voluntary payment of a fine and it is not possible to recover it, a court may replace the fine with arrest. When replacing the fine with arrest, the court shall act in compliance with the rules stipulated in Article 65 of this Code.


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Article 48. Restriction of Liberty

1. The penalty of restriction of liberty shall be imposed by a court in the cases provided for in the Special Part of this Code.

2. Restriction of liberty may be imposed for a period from three months up to two years. The term of the penalty shall be counted in years and months.

3. The persons sentenced to restriction of liberty shall be under the obligation:

1) not to change their place of residence without giving a notice to the institution executing the penalty;

2) to comply with mandatory and prohibitive injunctions of the court;

3) to give an account, in accordance with the established procedure, of compliance with the prohibitive and mandatory injunctions.

4. A court may impose one or more prohibitive or mandatory injunctions in respect of a person upon whom the penalty of restriction of liberty has been imposed.

5. A court may impose the following prohibitive injunctions:

1) to refrain from visiting certain places;

2) to refrain from communicating with certain individuals or groups of individuals;

3) not to own, use, acquire, store on one’s own or transfer for safekeeping to other persons certain items.

6. A court may impose the following mandatory injunctions:

1) to stay at home at a certain time;

2) to compensate, fully or in part, for the property damage incurred by a criminal act or to eliminate such damage with his own work;

3) to take up employment or register at a labour exchange, to study;

4) to undergo a treatment against alcohol addition, drug addiction, addiction to toxic substances or a sexually transmitted disease, where the convict agrees therefor;

5) to work for no remuneration for up to 200 hours within a period laid down by a court, but not exceeding the term of restriction of liberty at health care, social care and guardianship establishments or non-state organisations caring for the disabled, the aged or other persons in need of assistance.

7. At the request of a person or other participants in criminal proceedings, a court may impose upon him other prohibitive or mandatory injunctions not provided for under a criminal law in place of those indicated in paragraphs 5 and 6 of this Article, where, in the opinion of the court, this would have a positive effect on his behaviour.

8. The number of prohibitive and mandatory injunctions imposed by a court in respect of the convict shall not be specified, however they must be coordinated.

9. Where for objective reasons the convict is not able to comply with the specified mandatory injunctions, a court may, on the recommendation of the institution executing the penalty, release him from this penalty and impose in its place a penal sanction provided for in Chapter IX of this Codes.


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10. Where a person evades the serving of the penalty of restriction of liberty, this penalty shall be replaced with arrest in accordance with the rules specified in Articles 49 and 65 of this Code.


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Article 49. Arrest

1. Arrest shall be imposed by a court in the cases provided for in the Special Part of this Code.

2. Arrest shall mean a short-term custodial sentence served in a short-term detention facility. The term of arrest shall be counted in days.

3. Arrest shall be imposed for a period from 15 up to 90 days for a crime and from 10 to 45 days for a misdemeanour.

4. The term of arrest for a criminal act shall not be indicated in the sanction of an article. It shall be specified by a court when imposing the penalty.

5. If arrest is imposed for a period of 45 days or less, a court may order to serve it on days of rest. Where a person violates this procedure for serving arrest, the court may decide that the procedure be changed to the regular procedure for serving arrest.

6. Arrest shall not be imposed upon pregnant women and may be not imposed upon the persons raising a child under the age of 3 years taking into consideration interests of the child.

 

Article 50. Fixed-term Custodial Sentence

1. A fixed-term custodial sentence shall be imposed by a court in the cases provided for in the Special Part of this Code. The term of the penalty shall be counted in years, months and days.

2. The penalty of a fixed-term custodial sentence may be imposed for a period from three months up to ten years. In the case of imposing the penalty according to Article 64 of this Code, when a new crime is committed before a sentence for the previous crime is served, a custodial sentence for a period of up to 25 years may be imposed.

3. Convicted persons shall serve a custodial sentence in open colonies, houses of correction and prisons. The place where the penalty is to be served shall be selected by a court taking into consideration the personality of the offender, the nature and dangerousness of the committed crime. The procedure for and conditions of serving the custodial sentence shall be laid down by the Penal Code.


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Article 51. Life Custodial Sentence

1. The penalty of life custodial sentence shall be imposed by a court in the cases provided for in the Special Part of this Code.

2. If a criminal law provides for a possibility of commutation of the penalty of a life custodial sentence, the custodial sentence may be commuted to a term of not less than 25 years.

3. Convicted persons shall serve the penalty of a life custodial sentence in a prison. Having served the first ten years of the life custodial sentence, convicted persons may, in the cases and in accordance with the procedure laid down by laws, be transferred to a house of correction. The procedure for and conditions of serving the penalty of a life custodial sentence shall be laid down by the Penal Code.

 

Article 52. Restriction of Operation of a Legal Entity

1. When imposing the penalty of restriction of operation of a legal entity, a court shall prohibit the legal entity from engaging in certain activities or order it to close a certain division of the legal entity.

2. Operation of a legal entity may be restricted for a period from one year up to five years. The term of this penalty shall be counted in years and months.

 

Article 53. Liquidation of a Legal Entity

When imposing the penalty of liquidation of a legal entity, a court shall order the legal entity to terminate, within the time limit laid down by the court, the entire economic, commercial, financial or professional activity and to close all divisions of the legal entity.

 

CHAPTER VIII

IMPOSITION OF A PENALTY

 

Article 54. Basic Principles of Imposition of a Penalty

1. A court shall impose a penalty according to the sanction of an article of the Special Part of this Code providing for liability for a committed criminal act and in compliance with provisions of the General Part of this Code.

2. When imposing a penalty, a court shall take into consideration:

1) the degree of dangerousness of a committed criminal act;

2) the form and type of guilt;

3) the motives and objectives of the committed criminal act;

4) the stage of the criminal act;

5) the personality of the offender;

6) the form and type of participation of the person as an accomplice in the commission of the criminal act;

7) mitigating and aggravating circumstances;

8) the damage caused by the criminal act.

3. Where imposition of the penalty provided for in the sanction of an article is evidently in contravention to the principle of justice, a court may, taking into consideration the purpose of the penalty, impose a commuted penalty subject to a reasoned decision.


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Article 55. Imposition of a Penalty upon a Person Prosecuted for the First Time for a Negligent or Minor or Less Serious Premeditated Crime

The court shall generally impose a non-custodial sentence upon a person prosecuted for the first time for a negligent or minor or less serious premeditated crime. In the event of imposition of a custodial sentence, the court must justify its decision.

 

Article 56. Imposition of a Penalty upon a Dangerous Repeat Offender for the Commission of a Premeditated Crime

For the commission of a premeditated  crime, a dangerous repeat offender shall be imposed a penalty more severe than the average custodial sentence prescribed by the sanction of an article for the committed crime. Another penalty may be imposed upon a dangerous repeat offender only on the grounds provided for in Article 62 of this Code.

 

Article 57. Imposition of a Penalty for Preparation for Commission of and an Attempt to Commit a Criminal Act

1. A penalty for preparation for commission of or an attempt to commit a crime or a misdemeanour shall be imposed according to the general procedure and having regard to the dangerousness of the actions performed by the offender, the degree of accomplishment of the criminal intent and the reasons for which the criminal act was not accomplished.

2. Preparation for commission of or an attempt to commit a criminal act may, based on Article 62 of this Code, be subject to a more lenient penalty than the one provided for the completed criminal act.

 

Article 58. Imposition of a Penalty upon Accomplices in a Criminal Act

1. A penalty shall be imposed upon accomplices in a crime or misdemeanour in accordance with the general procedure and taking into consideration the type and form of participation of the person as an accomplice in the commission of the criminal act as well as the role and nature of participation therein.

2. Members of an organised group for the commission of a crime shall be generally imposed a more severe penalty than to members of a group of accomplices.


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Article 59. Mitigating Circumstances

1. The following shall be considered as mitigating circumstances:

1) the offender has provided assistance to the victim or otherwise actively avoided or attempted to avoid more serious consequences;

2) the offender has confessed to commission of an act provided for by a criminal law and sincerely regrets or has assisted in the detection of this act or identification of the persons who participated therein;

3) the offender has voluntarily compensated for or eliminated the damage incurred;

4) the criminal act has been committed due to a very difficult financial condition or desperate situation of the offender;

5) the act has been committed as a result of mental or physical coercion, where such a coercion does not eliminate criminal liability;

6) the commission of the act has been influenced by a provoking or venturesome behaviour of the victim;

7) the act has been committed at the request of the victim, who is in a desperate situation;

8) the act has been committed in violation of conditions of arrest of a person who has committed the criminal act, direct necessity, discharge of professional duty or performance of an assignment of law enforcement institutions, conditions of industrial or economic risk or lawfulness of a scientific experiment;

9) the act has been committed by exceeding the limits of self-defence, where a criminal law provides for liability for exceeding the limits of self-defence;

10) the act has been committed in a state of extreme agitation caused by unlawful actions of the victim;

11) the act has been committed by a person of diminished legal capacity;

12) the act has been committed by a person intoxicated by alcohol or drugs against his will;

13) a voluntary attempt to renounce commission of the criminal act has been unsuccessful.

2. A court may also recognise as mitigating other circumstances which have not been indicated in paragraph 1 of this Article.

3. When imposing a penalty, a court shall not take into consideration a mitigating circumstance which is provided for in a law as constituting the body of a crime.


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Article 60. Aggravating Circumstances

1. The following shall be considered as aggravating circumstances:

1) the act has been committed by a group of accomplices. Taking into consideration the nature and extent of participation of each accomplice in the commission of the criminal act, a court shall have the right not to recognise this circumstance as aggravating;

2) the act has been committed by an organised group;

3) the act has been committed by reason of disorderly conduct or for mercenary reasons;

4) the act has been committed by torturing the victim or subjecting him to taunting;

5) the act has been committed against a young child;

6) the act has been committed against a person who, due to an illness, disability, old age or for other reasons, was in a helpless state, without his request, or the act has been committed against a minor taking advantage of his dependency or through abuse of trust, authority or influence;

7) the act has been committed against a woman known to be pregnant;

8) the act has been committed by taking advantage of a public or other person’s disaster;

9) the act has been committed by a person under the influence of alcohol, narcotic, psychotropic or other psychoactive substances, where these circumstances influenced the commission of the criminal act;

10) the act has been committed in a publicly dangerous manner or by using explosives, explosive materials or firearms;

11) the committed act has inflicted serious damage or a real threat to the victim's life;

12) the act has been committed in order to express hatred towards a group of persons or a person belonging thereto on grounds of age, sex, sexual orientation, disability, race, nationality, language, descent, social status, religion, convictions or views;

13) the act has been committed by a repeat offender.

2. When imposing a penalty, a court shall not take into consideration an aggravating circumstance which is provided for in a law as constituting the body of a crime.


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Article 61. Imposition of a Penalty in the Presence of Mitigating and/or Aggravating Circumstances

1. When imposing a penalty, a court shall take into consideration whether only mitigating circumstances or only aggravating circumstances, or both mitigating and aggravating circumstances have been established and shall assess the relevance of each circumstance.

2. Having assessed mitigating and/or aggravating circumstances, the amount, nature and interrelation thereof, also other circumstances indicated in paragraph 2 of Article 54, a court shall make a reasoned choice of a more lenient or more severe type of a penalty as well as the measure of the penalty with reference to the average penalty.

3. The average penalty provided for by a law shall be determined as the aggregate of the minimum and maximum measure of a penalty provided for in the sanction of an article, which is subsequently divided by half. Where the sanction of the article prescribes no minimum measure of a penalty for a committed criminal act, the average penalty shall be determined on the basis of the minimum measure of a penalty fixed for that type of penalties.

4. Where the offender voluntarily confesses to commission of a crime, sincerely regrets it and actively assists in the detection of the crime as well as there are no aggravating circumstances, a court shall impose upon him a custodial sentence not exceeding the average penalty provided for in the sanction of an article for the committed crime or a non-custodial sentence.

5. A court may impose a custodial sentence not exceeding the average penalty provided for in the sanction of an article for the committed crime upon a person who participated in the commission of a premeditated murder, where he makes a confession regarding all the criminal acts committed by him and actively assists in the detection of the premeditated murder committed by members of an organised group or a criminal association.

6. Paragraph 5 of this Article shall not apply to the organiser or leader of a premeditated murder, organised group or criminal association.


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Article 62. Imposition of a More Lenient Penalty than Provided for by a Law

1. Where, a person who has committed a criminal act freely and voluntarily gives himself up or reports this act, confesses to commission thereof and sincerely regrets and/or assists pre-trial investigators and a court in detecting the criminal act and has fully or partially compensated for or eliminated the incurred property damage, a court may, having considered all the circumstances of the case, impose for every criminal act a more lenient penalty than provided for by a law.

2. Having considered all the circumstances of a case, a court may impose for every criminal act a more lenient penalty than provided for by a law also in the presence of mitigating circumstances, at least partial compensation for or elimination of property damage, if any has been incurred, and where:

1) the offender maintains the persons suffering from a grave illness or are disabled and no one else can look after them, or

2) the offender maintains young children and there would be no one to look after them if the penalty provided for by a law was imposed; or

3) the offender as an accomplice had only a secondary role in the commission of the criminal act; or

4) the act was discontinued at the stage of preparation to commit the crime or at the stage of an attempt to commit the criminal act; or

5) the act has been committed by exceeding the limits of self-defence, or

6) the act has been committed in violation of conditions of arrest of the person who has committed the criminal act, direct necessity, discharge of professional duty or performance of an assignment of law enforcement institutions, conditions of  industrial or economic risk or lawfulness of a scientific experiment.

3. In the presence of the conditions indicated in paragraphs 1 and 2 of this Article, a court may:

1) impose a more lenient penalty than the minimum penalty provided for in the sanction of an article for a criminal act committed; or

2) impose a more lenient penalty than stipulated in Article 47(3), (4) and (6), Article 56 and Article 90(3) of this Code, or

3) impose a more lenient type of penalty than provided for in the sanction of an article for a criminal act committed.

4. A court may also, according to paragraph 3 of this Article, impose a more lenient penalty than provided for by a law upon a person who participated in the commission of a premeditated murder, where he makes a confession regarding all the criminal acts committed by him and actively assists in detecting a premeditated murder committed by members of an organised group or criminal association and where:

1) the murder has been committed as a result of a threat or coercion; or


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1) the murder has been committed as a result of a threat or coercion; or

2) the offender as an accomplice had only a secondary role in the commission of the murder, or

3) the act has been discontinued at the stage of preparation for the commission of the murder or at the stage of attempting to commit the murder.


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Article 63. Imposition of a Penalty for the Commission of Several Criminal Acts

1. Where several criminal acts have been committed, a court shall impose a penalty for each criminal act separately and subsequently impose a final combined sentence. When imposing a final combined sentence, the court may impose either a consolidated sentence or a fully or partially cumulative sentence.

2. Where a consolidated sentence is imposed, a more severe penalty shall cover a more lenient penalty and the final combined sentence shall be equal to the most severe penalty imposed for all the separate criminal acts.

3. Where a fully cumulative sentence is imposed, all more lenient sentences which have been imposed shall be added to the most severe penalty imposed for one of the committed criminal acts.

4. Where a partially cumulative sentence is imposed, more lenient penalties shall be added in part to the most severe penalty imposed for one of the committed criminal acts and reasons for selecting each of the parts of the penalty to be added shall be indicated. A part of the penalty to be added may not be below the minimum level of a penalty of that type, with the exception of the cases when the part of a sentence not served yet which is to be added is below the minimum level of the penalty. 

5. A court shall impose a consolidated sentence where:

1) there is a full concurrence of criminal acts;

2) where the committed criminal acts differ markedly in their degree of dangerousness and are assigned to different types or categories of criminal acts according to Articles 10 or 11 of this Code;

3) where a custodial sentence for a period of twenty years or life custodial sentence has been imposed for the commission of one of the criminal acts.

6. Where imposing a final sentence a part of the imposed sentences may be consolidated, whereas others may only be fully or partially accumulated, a court shall combine sentences by way of consolidation and accumulation [KA1] of sentences. A court shall make a choice of the procedure for combining sentences upon assessing the nature and dangerousness of the committed criminal acts.

7. When a penalty is imposed on the grounds provided for in paragraph 1 of this Article, a final combined sentence may not exceed a twenty-year custodial sentence, whereas in the cases when a penalty of another type is imposed, with the exception of a fine, the penalty may not exceed the maximum level of a penalty established for this type of a penalty in this Code.

8. A court may not impose a combined sentence of a type which has not been imposed for the individual criminal acts.


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8. A court may not impose a combined sentence of a type which has not been imposed for the individual criminal acts.

9. A penalty shall be imposed according to the rules stipulated in this Article also in the cases when following the passing of a judgment it is established that a person had committed another crime or misdemeanour prior to the passing of the judgment in the first case. In this case, the sentence fully or partially served under the previous judgment shall be included in the term of the sentence.

10. A person shall not be considered to have committed several criminal acts where he has committed a continuous criminal act.


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Article 64. Imposition of a Penalty in the Event of Commission of a New Criminal Act before a Sentence is Served

1. Where a convicted person commits a new criminal act before serving an imposed sentence, or where a person who has been given a suspended sentence commits a new criminal act during the period of suspension of the sentence, a court shall impose a combined sentence upon imposing a penalty for the new crime or misdemeanour. When imposing a combined sentence, the court may impose a fully or partially cumulative sentence.

2. When imposing a fully cumulative sentence, a court shall add the entire part of the sentence not served yet to a penalty imposed by a new judgment.

3. When imposing a partially cumulative sentence, a court shall add a part of the sentence not served yet to a penalty imposed by a new judgment. Where the part of the sentence not served yet is larger, a part of the penalty imposed by the new judgment shall be added to the former part. A part of the penalty to be added may not be below the minimum level of a penalty of that type, with the exception of the cases when the part of a sentence not served yet which is to be added is below the minimum level of the penalty.

4. When a penalty is imposed on the grounds provided for in paragraph 1 of this Article, a combined sentence may not exceed a twenty-five-year custodial sentence, whereas in the cases when a penalty of another type is imposed, the penalty may not exceed the maximum level of a penalty established for this type of a penalty in this Code.

5. Where a penalty of a life custodial sentence is imposed for one of the crimes committed, sentences shall be combined by consolidation and the combined sentence shall be a life custodial sentence.

 

Article 641. Imposition of a Penalty upon Hearing a Case under the Simplified Procedure or upon Conducting a Summary Examination of Evidence

1. Upon hearing a criminal case under the accelerated procedure or upon conducting a summary examination of evidence, also when criminal proceedings are terminated by a penal order, the convict shall be imposed a penalty which, by the same judgment, shall be reduced by one-third.

2. The rule specified in paragraph 1 of this Article shall apply solely in cases when a person pleads guilty.


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Article 65. Rules of Cumulation of Sentences and Replacement of Penalties

1. The cumulation of imposed sentences as well as replacement of some penalties with others shall be governed by the following rules:

1) a one-day custodial sentence shall be held equivalent to:

a) one day of arrest (1:1);

b) two days of restriction of liberty (1:2);

2) one day of arrest shall be held equivalent to:

a) a fine in the amount of 2 MSLs (1:2);

b) six hours of community service (1:6);

c) two days of restriction of liberty (1:2);

3) one day of restriction of liberty shall be held equivalent to:

a) three hours of community service (1:3);

b) a fine in the amount of 1 MSL (1:1);

4) a fine in the amount of 1 MSL shall be held equivalent to six hours of community service.

2. When imposing a combined sentence in the cases provided for in Articles 63 and 64 of this Code, a court shall replace a more severe penalty with a more lenient one. A fine may not be substituted and shall be imposed in conjunction with another penalty. Double replacement of penalties shall be prohibited.

 

Article 66. Inclusion of the Period of Remand in a Penalty Imposed

1. When imposing a penalty upon a person subject to remand/arrest, a court must include this period in the term of an imposed penalty.

2. The period of remand/arrest shall be included in the term of an imposed penalty in accordance with the rules set forth in paragraph 1 of Article 65 of this Code, where one day of remand/arrest shall be held equivalent to a one-day custodial sentence or arrest, a fine in the amount of two MSLs, six hours of community service, two days of restriction of liberty.

 

CHAPTER IX

PENAL SANCTIONS AND IMPOSITION THEREOF


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CHAPTER IX

PENAL SANCTIONS AND IMPOSITION THEREOF

 

Article 67. Purpose and Types of Penal Sanctions

1. Penal sanctions must assist in implementing the purpose of a penalty.

2. An adult person released from criminal liability on the grounds provided for in Chapter VI of this Code or released from a penalty on the grounds provided for in Chapter X of this Code or released on bail from a correctional institution on the grounds provided for in Chapter XI of the Penal Code of the Republic of Lithuania may be subject to the following penal sanctions:

1) prohibition to exercise a special right;

2) deprivation of public rights;

3) deprivation of the right to be employed in a certain position or to engage in a certain type of activities;

4) compensation for or elimination of property damage;

5) unpaid work;

6) payment of a contribution to the fund of crime victims;

7) confiscation of property;

8) the obligation to reside separately from the victim and/or prohibition to approach the victim closer that a prescribed distance;

9) participation in the programmes correcting violent behaviour;

10) extended confiscation of property.

3. Prohibition to exercise a special right, deprivation of public rights, deprivation of the right to be employed in a certain position or to engage in a certain type of activities, confiscation of property, the obligation to reside separately from the victim and/or prohibition to approach the victim closer that a prescribed distance, participation in the programmes addressing violent behaviour and extended confiscation of property may be imposed together with a penalty.

4. A minor released from criminal liability on the grounds provided for in Chapter VI or Chapter XI of this Code or released from a penalty on the grounds provided for in Chapter X of this Code may be subject to extended confiscation of property.

5. A legal entity may be subject to confiscation of property or extended confiscation of property.

6. When imposing two or more penal sanctions, the compatibility of the sanctions and the possibility of their corrective effect upon the convicted person must be taken into consideration.


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Article 68. Prohibition to Exercise a Special Right

1. A court may prohibit a person from exercising special rights (the right to drive land vehicles, air- or water-borne vehicles, the right to hold and carry a weapon, the right to hunt, the right to fish, etc.) in the cases when a person committed a criminal act while exercising these rights.

2. A court shall prohibit to exercise special rights for a period from one year up to three years. The term shall be counted in years, months and days.

3. When prohibiting a person from exercising special rights, a court shall specify which right or rights he is prohibited from exercising as well as the term of validity of such a prohibition.

4. Prohibition to exercise a special right, if imposed together with a penalty of a custodial sentence or arrest, shall apply over the entire term of a custodial sentence or arrest and a period following the custodial sentence or arrest as specified by the court.

 

Article 681. Deprivation of Public Rights

1. Deprivation of public rights shall be deprivation of the right to be elected or appointed to an elected or appointed position at state or municipal institutions and agencies, undertakings or non-state organisations.

2. The court shall impose deprivation of public rights in the cases when a criminal act is committed in abuse of public rights.

3. Public rights may be deprived for a period from one year up to five years. Public rights may be deprived for the less serious and serious crimes provided for in Chapter XXXIII of this Code for a period from three up to seven years. When imposing deprivation of public rights, the court shall indicate the right which is deprived and a specific time limit for this penal sanction. The term shall be counted in years, months and days.

4. Prohibition to exercise a special right, if imposed together with a penalty of a custodial sentence or arrest, shall apply over the entire term of custodial sentence or arrest and a period following the custodial sentence or arrest as specified by the court.


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Article 682. Deprivation of the Right to be Employed in a Certain Position or to Engage in a Certain Type of Activities

1. The court shall order deprivation of the right to be employed in a certain position or to engage in a certain type of activities in the cases when a person commits a criminal act in the field of his occupational or professional activities or where, having regard to the nature of the criminal act committed, the court comes to the conclusion that the person may not preserve the right to be employed in a certain position or to engage in a certain type of activities.

2. The right to be employed in a certain position or to engage in a certain type of activities may be deprived for a period from one year up to five years. The right to be employed in a certain position or to engage in a certain type activities may be deprived for the less serious and serious crimes provided for in Chapter XXXIII of this Code for a period from three years up to seven years. When ordering deprivation of the right to be employed in a certain position or to engage in a certain type of activities, the court shall indicate the term of this criminal sanction. The term shall be counted in years, months and days.

3. Deprivation of the right to be employed in a certain position or to engage in a certain type of activities, if imposed in conjunction with a custodial sentence or arrest, shall be imposed for the entire term of the custodial sentence or arrest and for a period ordered by the court to commence after the term of the custodial sentence or arrest has been served.

 

Article 69. Compensation for or Elimination of Property Damage

1. The court shall order compensation for or elimination of property damage when damage has been caused to a person, property or the natural environment as a result a crime or misdemeanour.

2. The amounts received by the victim from insurance or other institutions to cover the damage incurred shall not be included in the amount of the damage to be compensated for.

3. Damage must be compensated for or eliminated within a time limit laid down by the court.

 

Article 70. Unpaid Work

1. The court shall order performance of 20 up to 100 hours of unpaid work at health care, social care and guardianship or other state or non-state bodies and organisations. When imposing unpaid work, the court shall lay down a time limit for performance thereof. This term may not be longer than one year.

2. Unpaid work shall be performed only subject to the consent of a person.


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Article 71. Payment of a Contribution to the Fund of Crime Victims

A court may order payment of a contribution in the amount from 5 MSLs up to 125 MSLs to the fund of crime victims. The contribution must be paid within a time limit laid down by the court. This term may not be longer than three years.

 

Article 72. Confiscation of Property

1. Confiscation of property shall be the compulsory uncompensated taking into the ownership of a state of any form of property subject to confiscation and held by the offender or other persons.

2. An instrument or a means used to commit an act prohibited by this Code or the result of such an act shall be considered as property subject to confiscation. The property of any form directly or indirectly obtained/derived from the act prohibited by this Code shall be considered as the result of the act.

3. The property held by the offender and being subject to confiscation must be confiscated in all cases.

4. The property held by another natural or legal person and being subject to confiscation shall be confiscated irrespective of whether the person has been convicted of the commission of an act prohibited by this Code, where:

1) when transferring the property to the offender or other persons, he was, or ought to have been, aware that this property would be used for the commission of the act prohibited by this Code;

2) the property has been transferred thereto under a fake transaction;

3) the property has been transferred thereto as to a family member or close relative of the offender;

4) the property has been transferred to him as to a legal person, and the offender, his family members or close relatives  is/are the legal person's manager, a member of its management body or participants holding at least fifty percent of the legal person’s shares (member shares, contributions, etc.);

5) when acquiring the property, he or the persons holding executive positions in the legal person and being entitled to represent it, to make decisions on behalf of the legal person or to control the activities of the legal person was/were, or ought and could have been, aware that the property is an instrument or a means used to commit an act prohibited by this Code or the result of such an act.

5. Where the property which is subject to confiscation has been concealed, consumed, belongs to third parties or cannot be taken for other reasons or confiscation of this property would not be appropriate, the court shall recover from the offender or other persons indicated in paragraph 4 of this Article a sum of money equivalent to the value of the property subject to confiscation.

6. When ordering confiscation of property, the court must specify the items subject to confiscation or the monetary value of the property subject to confiscation.


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Article 721. Obligation to Reside Separately from the Victim and/or Prohibition to Approach the Victim Closer that a Prescribed Distance

1. The court may impose the obligation to reside separately from the victim and/or prohibition to approach the victim closer that a prescribed distance where this is necessary with a view to protecting the legitimate interests of the victim.

2. Upon imposition of the obligation to reside separately from the victim and/or prohibition to approach the victim closer that a prescribed distance, the offender shall be prohibited, until the expiry of a time limit laid down by the court, from communicating in any form and seeking contacts with the victim and visiting the indicated places at which the victim is usually present.

 

Article 722. Participation in the Programmes Addressing Violent Behaviour

The court shall place under the obligation to participate in violence correction programmes the persons who have committed criminal acts in respect of a close relative or family member. This obligation must be complied with within a time limit laid down by the court.


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Article 723. Extended Confiscation of Property

1. Extended confiscation of property shall be the taking into ownership of the State of the property of the offender or part thereof disproportionate to the legitimate income of the offender, where there are grounds for believing that the property has been obtained by criminal means.

2. Extended confiscation of property shall be imposed provided that all of the following conditions are met:

1) the offender has been convicted of a less serious, serious or grave premeditated crime from which he obtained, or could have obtained, material gain;

2) the offender holds the property acquired during the commission of an act prohibited by this Code, after the commission thereof or within the period of five years prior to the commission thereof, whose value does not correspond to the offender’s legitimate income, and the difference is greater than 250 minimum standards of living (MSLs) or transfers such property to other persons within the period specified in this point;

3) the offender fails, in the course of criminal proceedings, to provide proof of the legitimacy of acquisition of the property.

3. The property referred to in paragraph 2 of this Article and being subject to confiscation, if it has been transferred to another natural or legal person, shall be confiscated from this person, where at least one of the following grounds exists:

1) the property has been transferred under a fake transaction;

2) the property has been transferred to the offender's family members or close relatives;

3) the property has been transferred to to a legal person, and the offender, his family members or close relatives  is/are the legal person’s manager, a member of its management body or participants holding at least fifty percent of the legal person’s shares (member shares, contributions, etc.);

4) the person whereto the property has been transferred or the persons holding executive positions in the legal person and being entitled to represent it, to make decisions on behalf of the legal person or to control the activities of the legal person was/were, or ought and could have been, aware that the property has been obtained by criminal means or with illicit funds of the offender.

4. The extended confiscation of property provided for in this Article may not be imposed on the property of the offender or third parties or part thereof if it is not recoverable under international treaties of the Republic of Lithuania and provisions of the Code of Civil Procedure of the Republic of Lithuania and other laws.

5. Where the property, or part thereof, which is subject to confiscation has been concealed, consumed, belongs to third parties or cannot be taken for other reasons or confiscation of this property would not be appropriate, the court shall recover from the offender or other persons indicated in paragraph 3 of this Article a sum of money equivalent to the value of the property subject to confiscation.


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6. When ordering extended confiscation of property, the court must specify the items subject to confiscation or the monetary value of the property or part thereof subject to confiscation.


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Article 73. Imposition of Penal Sanctions

1. The court shall impose penal sanctions in compliance with provisions of this Chapter.

2. Penal sanctions shall not be combined with penalties and shall be executed separately.

 

Article 74. Legal Consequences of Non-Compliance with Penal Sanctions

1. Any penal sanction imposed by a court and provided for in Article 67(2)(4), (5) and (6) of this Code which the person cannot comply with for valid reasons may, at his request, be replaced with another penal sanction. Where the person does not give his consent to perform unpaid work following the coming into effect of a court judgment, the court shall, on the recommendation of the institution executing the penal sanction, replace unpaid work with another penal sanction.

2. In respect of a person who evades compliance with a penal sanction imposed upon him (with the exception of property confiscation), the court may, on the recommendation of the institution executing the penalty, impose a penalty according to Article 243 of this Code. In this case, imposition of the penalty shall not release the convict from the duty to comply with the imposed penal sanction.

 

CHAPTER X

SUSPENSION OF THE EXECUTION OF A SENTENCE AND RELEASE FROM A PENALTY


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Article 75. Suspension of the Execution of a Sentence

1. Where a person is subject to a custodial sentence for a term of up to six years for one or several crimes committed through negligence or to a custodial sentence for a term of up to four years for the commission of one or several minor crimes or less serious premeditated crimes, the court may suspend the execution of the imposed sentence for a period ranging from one year up to three years. The execution of the sentence may be suspended where the court rules that there is a reasonable ground for believing that the purpose of the penalty will be achieved without the sentence actually being served.

2. In suspending the execution of the sentence, the court shall impose upon the convict one or more mutually compatible penal sanctions and/or obligations provided for in Chapter IX of the Code:

1) to offer an apology to the victim;

2) to provide assistance to the victim during the latter’s medical treatment;

3) to undergo treatment of addiction diseases, where the convict agrees;

4) to educate and take care of his minor children, to take care of their health, to maintain them;

5) to take up employment or studies, continue employment or studies;

6) to participate in a behaviour correction programme;

7) not to leave home at a certain time, unless this is related to work or studies;

8) not to leave the city/district of the place of residence without the authorisation of the institution supervising the convict;

9) not to visit certain places or to refrain from communicating with certain persons or groups of persons;

10) not to use psychoactive substances;

11) not to possess, use or acquire certain items or not engage in certain activities.

3. The court may impose upon a person, at the request of the person or other participants of criminal proceedings, also at its own discretion, other obligations not provided for by the criminal law which, in the court's opinion, would have a positive impact on the conduct of the convict.

4. In imposing the penal sanctions provided for in Chapter IX of this Code and/or the obligations provided for in paragraphs 2 and 3 of this Article, the court shall specify the time limit for complying therewith.

5. The procedure for and conditions of suspension of the execution of a sentence shall be stipulated by the Law of the Republic of Lithuania on Probation.


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Article 76. Release from a Penalty due to an Illness

1. A person who committed a criminal act may be released from a penalty where, before a judgment is passed by the court, he contracts a terminal illness rendering him unable to serve a sentence. In such a case, the court shall, when passing a judgment of conviction, impose a penalty upon this person and release him from serving the sentence The court shall decide this issue taking into consideration the gravity of the committed criminal act, the personality of the convict and the nature of the illness.

2. A person who contracts a terminal illness following the passing of a judgment may be released from serving the undischarged term of the sentence. The court shall decide this issue taking into consideration the gravity of the committed criminal act, the personality of the convicted person, his conduct while serving the sentence, the nature of the illness and the period of the sentence already served.

3. A person who, following the commission of a criminal act or imposition of a penalty, starts to suffer from a mentally disorder rendering him incapable of understanding the nature of his actions or controlling them shall be released from serving the undischarged term of the sentence. In releasing this person from a penalty, the court shall decide whether to impose upon him  compulsory medical treatment. In the event of convalescence of this person, he may be ordered to serve the undischarged term of the sentence. In such a case, the period during which the person was undergoing compulsory medical treatment shall be included in the term of a custodial sentence on a day-for-day basis.

 

Article 77. Repealed as of 1 July 2012.

 

Article 78. Amnesty

1. A person who commits a criminal act may be released from serving the entire length of the sentence or a part thereof by an amnesty act passed by the Seimas.

2. The grounds for, conditions of and procedure for granting amnesty shall be laid down in the act of amnesty.

 

Article 79. Clemency

1. A convict may be released from serving the entire length of the sentence or a part thereof where the President of the Republic grants his clemency plea.

2. The procedure for granting clemency shall be laid down by the President of the Republic.

 

CHAPTER XI

FEATURES OF CRIMINAL LIABILITY OF MINORS


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CHAPTER XI

FEATURES OF CRIMINAL LIABILITY OF MINORS

 

Article 80. Purpose of Features of Criminal Liability of Minors

The features of criminal liability of minors as provided for in this Chapter and Article 13(2) and (3), Article 27(4) and Article 97(4) of this Code shall have the following purpose:

1) to ensure correspondence of liability to the age and social maturity of these persons;

2) to restrict the possibilities of imposition of a custodial sentence and broaden the possibilities of imposition of reformative sanctions against these persons;

3) to help a minor to alter his manner of living and conduct by co-ordinating a penalty for the committed criminal act with the development and education of his personality and elimination of reasons for the unlawful conduct;

4) to prevent a minor from committing new criminal acts.

 

Article 81. Application of Provisions of the Chapter

1. Provisions of this Chapter shall apply to the persons who were under the age of 18 years at the time of commission of a criminal act.

2. Provisions of Articles 90-94 of this Code,-also the reformative sanctions provided for in Article 82(1)(1), (2), (3) and (5) may be applied against a person who was of the age of 18 years at the time of commission of a criminal act, however was below the age of 21 years where the court, taking into consideration the nature and motives of the committed criminal act as well as other circumstances of the case, and, where necessary, clarifications or conclusion of a professional, decides that such a person is equivalent to a minor according to his social maturity and application of features of criminal liability against him would correspond to the purpose provided for in Article 80 of this Code.

 

Article 82. Reformative Sanctions against Minors

1. A minor who has committed a misdemeanour or a crime and has been released from criminal responsibility or a penalty, also a minor in respect of whom the execution of the sentence has been suspended or who has been conditionally released from correctional institutions on the grounds provided for in Chapter XI of the Penal Code of the Republic of Lithuania may be subject to the following reformative sanctions:

1) a warning;

2) compensation for or elimination of property damage;

3) unpaid reformative work;

4) placement for upbringing and care with parents or other natural or legal persons taking care of children;

5) restriction on conduct;

6) placement in a special reformative facility.

2. The court may impose against a minor not more than three mutually compatible reformative sanctions.

3. (Repealed).


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Article 83. Warning

1. A warning may be imposed upon a minor as an independent reformative sanction or in conjunction with other such sanctions.

2. When imposing against a minor this reformative sanction, the court shall state to him in writing the possible legal consequences ensuing from the commission of new criminal acts.

 

Article 84. Compensation for or Elimination of Property Damage

1. Compensation for or elimination of property damage shall be ordered only when a minor possesses resources which he can independently dispose of or when he is capable of eliminating the damage by his own work.

2. Property damage must be compensated for or eliminated by a person’s own work within a time limit laid down by the court.

 

Article 85. Unpaid Reformative Work

1. Unpaid reformative work shall be imposed for a period of 20 up to 100 hours to be performed at health care, curatorship and guardianship or other state or non-state bodies and organisations, where work thereat may be of a reformative character.

2. Unpaid reformative work shall be performed subject to the consent of a minor.

3. Unpaid work may not be imposed upon a minor where he is placed in a special reformative facility.

 

Article 86. Placement for Upbringing and Care with Parents or Other Natural or Legal Persons Taking Care of Children

1. Placement for upbringing and care with parents or other natural or legal persons taking care of children shall be ordered for a period from six months up to three years, but no longer than after a minor reaches the age of 18 years.

2. The sanction indicated in paragraph 1 of this Article may be imposed in the cases when:

1) the parents or other persons agree to bring up and take care of the minor, have no negative influence on the minor themselves, have a possibility to provide favourable conditions for the development of his personality and agree to provide the necessary information to the institutions supervising the execution of the above sanction;

2) the minor agrees that the indicated persons bring him up and take care of him and promises to obey them and behave properly.

3. Placement for upbringing and care with parents or other persons may be ordered for a minor as an independent sanction or in combination with other reformative sanctions. This sanction may not be imposed where a minor is placed in a special reformative facility.


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Article 87. Restriction on Conduct

1. A restriction on conduct may be imposed for a term from thirty days up to twelve months. The term of this sanction shall be counted in days and months.

2. The court may impose the following mandatory injunctions upon a minor:

1) to be at home at a certain time;

2) to study, resume studies or take up employment;

3) to acquire certain knowledge or learn prohibitions (traffic safety regulations, school student’s regulations, etc.);

4) to undergo a complete course of treatment against alcohol addition, drug addiction, addiction to toxic substances or a sexually transmitted disease. This mandatory injunction shall be imposed at the request of parents or guardians subject to the consent of the minor;

5) to participate in the social education or rehabilitation measures organised by state or non-state bodies and organisations.

3. The court may impose upon a minor the following prohibitive injunctions:

1) not to gamble;

2) not to engage in a certain type of activities;

3) not to drive a motor vehicle (motorcycle, self-propelled vehicle, etc.);

4) not to visit the places that have a negative effect on the conduct of the minor, or not to communicate with the people who exert a negative influence on him;

5) not to change his place of residence without giving a notice to the institutions supervising execution of this sanction.

4. The court may impose upon a minor, at the request of the minor or other participants of criminal proceedings, also at its own discretion, other mandatory or prohibitive injunctions not provided for by the criminal law which, in the court’s opinion, would have a positive impact on the conduct of the minor.

5. A minor must, in accordance with the established procedure, give an account of his compliance with mandatory and prohibitive injunctions.

6. A restriction on a minor’s conduct may be imposed against the minor as an independent reformative sanction or in conjunction with other such sanctions. This sanction may not be imposed where a minor is placed in a special reformative facility.


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Article 88. Placement in a Special Reformative Facility

1. The term for placement in a special reformative facility may be fixed for a period of six months up to three years, but no longer than until a minor reaches the age of 18 years.

2. The specific term of placement in a special reformative facility shall be laid down by the court having regard to the personality of a minor, the repetitive character of his criminal conduct, the type of sanctions previously applied, and other circumstances of the case.

3. Placement in a special reformative facility may be ordered in respect of a minor as an independent sanction or in combination with a warning or compensation for or elimination of property damage.

 

Article 89. Legal Consequences of Non-Compliance with Reformative Sanctions

1. Where a minor against whom a reformative sanction has been imposed fails to comply or complies inappropriately with the sanction and for this reason has been warned at least twice, the court may, on the recommendation of the institution supervising the execution of this sanction, replace that sanction with any other reformative sanction, with the exception of placement in a special reformative facility.

2. Where a minor upon whom two or three reformative sanctions have been imposed fails to comply or complies inappropriately with the sanctions and for this reason has been warned at least twice, the court may, on the recommendation of the institution supervising the execution of these sanctions, replace them with other reformative sanctions, including placement in a special reformative facility.

 

Article 90. Features of Penalties Imposed upon Minors

1. A minor may be subject solely to the following penalties:

1) community service;

2) a fine;

3) restriction of liberty;

4) arrest;

5) fixed-term custodial sentence.

2. Minors may not be imposed more than 240 hours of community service.

3. A fine may be imposed only against a minor already employed or possessing his own property. A minor may be subject to a fine in the amount from 5 MSLs up to 50 MSLs.

4. A minor may be subject to arrest for a period of five up to forty-five days.

5. The period of a custodial sentence in respect of a minor may not exceed ten years.


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Article 91. Features of Imposition of a Penalty upon a Minor

1. The court shall impose a penalty upon a minor according to the basic principles of imposition of penalties and the features provided for in this Chapter.

2. In imposing a penalty upon a minor, a court shall, in addition to the circumstances listed in Article 54(2) of this Code, take into consideration the following:

1) the living and upbringing conditions of the minor;

2) the state of health and social maturity of the minor;

3) previously imposed sanctions and effectiveness thereof;

4) the minor’s conduct following the commission of a criminal act.

3. The court may impose a fixed-term custodial sentence upon a minor where there is a ground for believing that another type of penalties is not sufficient to alter the minor’s criminal dispositions, or where the minor has committed a serious or grave crime. In the event of imposition of the custodial sentence upon the minor, the minimum penalty shall be equal to one half of the minimum penalty provided for by the sanction of an article of this Code according to which the minor is prosecuted.

 

Article 92. Suspension of the Execution of a Sentence in Respect of a Minor

1. Where a minor is imposed a custodial sentence for one or several crimes committed through negligence or a custodial sentence for a term not exceeding four years for the commission of one or several premeditated crimes, the court may suspend the execution of the imposed sentence for a period ranging from one to three years. The execution of the sentence may be suspended where the court rules that there is a reasonable ground for believing that the purpose of the penalty will be achieved without the sentence actually being served.

2. When suspending the execution of a sentence, the court shall impose upon a minor one or several mutually compatible reformative sanctions provided for in Article 82 of this Code, with the exception of placement in a special reformative facility. The court shall also lay down a time limit within which the minor must comply with the reformative sanctions.

3. The procedure for and conditions of suspension of the execution of a sentence for minors shall be stipulated by the Law of the Republic of Lithuania on Probation.


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Article 93. Release of a Minor from Criminal Liability

1. A minor who commits a misdemeanour, or a negligent crime, or a minor or less serious premeditated crime for the first time may be released by the court from criminal liability where he:

1) has offered his apology to the victim and has compensated for or eliminated, fully or in part, the property damage incurred by his work or in monetary terms; or

2) is found to be of diminished capacity; or

3) pleads guilty and regrets having committed a criminal act or there are other grounds for believing that in the future the minor will abide by the law and will not commit new criminal acts.

2. Having released a minor from criminal liability on the grounds provided for in paragraph 1 of this Article, the court shall impose against him the reformative sanctions provided for in Article 82 of this Code.

 

Article 94. Repealed as of 1 July 2012.

 

CHAPTER XII

STATUTE OF LIMITATIONS OF CRIMINAL LIABILITY


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Article 95. Statute of Limitations of a Judgment of Conviction

1. A person who has committed a criminal act may not be subject to a judgment of conviction where:

1) the following period has lapsed:

a) three years, in the event of commission of a misdemeanour;

b) eight years, in the event of commission of a negligent or minor premeditated crime;

c) twelve years, in the event of commission of a less serious premeditated crime;

d) fifteen years, in the event of commission of a serious crime;

e) twenty-five years, in the event of commission of a grave crime;

f) thirty years, in the event of commission of a crime relating to a premeditated homicide;

2) within the period laid down in point 1 of paragraph 1 of this Article, the person did not hide from pre-trial investigation or a trial and did not commit a new criminal act.

2. The statute of limitations shall run from the commission of a criminal act until the passing of a judgment.

3. If a minor suffers from the criminal acts provided for in Chapters XVIII, XX, XXI, XXIII and XLIV of this Code, the statute of limitations may not run out before the person reaches the age of twenty-five years.

4. Where a person who has committed a criminal act hides from pre-trial investigation or a trial, the statute of limitations shall not run. The statute of limitations shall resume running from the day when the person is detained or when he appears before a pre-trial investigation officer, a prosecutor or a court. However, a judgment of conviction may not be passed where twenty-five years have lapsed since the commission of the criminal act by the person and thirty years have lapsed since the commission of a crime relating to a premeditated homicide, and the statute of limitations has not stopped running due to commission of a new crime.

5. Where a person who has committed a criminal act enjoys, under laws of the Republic of Lithuania or international legal norms, immunity from criminal liability and the competent authority does not allow his prosecution, the statute of limitations stops running. The statute of limitations shall resume running from the receipt of the competent authority’s permission to prosecute the person who has committed the criminal act or after he loses immunity as referred to in this paragraph by other means.

6. In the course of hearing of a case before the court, the statute of limitations shall stop running for a period for which:

1) the court announces a break in the hearing before the court or postpones the hearing of the case due to the absence of the accused or his defence counsel;


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2) the court announces a break in the hearing before the court pending an expert examination or a professional investigation assigned by the court or satisfaction of a request for legal assistance submitted to a foreign state;

3) the court announces a break in the hearing before the court and charges a prosecutor or a pre-trial investigation judge with taking the procedural actions provided for in the Code of Criminal Procedure of the Republic of Lithuania;

4) the court announces a break in the hearing before the court for the new defence counsel of the accused to familiarise with the case file.

7. In the cases provided for in paragraph 5 of this Article, a judgment of conviction cannot be passed where a period exceeding that provided for in paragraph 1 by five years has lapsed since the commencement of the statute of limitations.

8. Where a person commits a new premeditated criminal act before the expiry of the terms indicated in this Article, the statute of limitations shall stop running. In such a case, the statute of limitations in respect of the first criminal act shall start to run from the commission of a new crime or misdemeanour.

9. The following crimes provided for in this Code shall have no statute of limitations:

1) genocide (Article 99);

2) treatment of persons prohibited under international law (Article 100);

3) enforced disappearance (Article 1001);

4) killing of the persons protected under international humanitarian law (Article 101);

5) deportation or transfer of civilians (Article 102);

6) causing bodily harm to, torture or other inhuman treatment of the persons protected under international humanitarian law or violation of protection of their property (Article 103);

7) forcible use of civilians or prisoners of war in the armed forces of the enemy (Article 105);

8) destruction of protected objects or plunder of national valuable properties (Article 106);

9) aggression (Article 110);

10) prohibited military attack (Article 111);

11) use of prohibited means of warfare (Article 112);

12) negligent performance of the commander’s duties (Article 1131).


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Article 96. Statute of Limitations for the Execution of a Judgment of Conviction

1. A judgment of conviction shall not be executed where:

1) it was not executed:

a) within two years following imposition of a penalty for a misdemeanour; or

b) within three years following imposition of a non-custodial sentence or of a custodial sentence for a term not exceeding two years; or

c) within five years following imposition of a custodial sentence for a term not exceeding five years; or

d) within ten years following imposition of a custodial sentence for a term not exceeding ten years; or

e) within fifteen years following imposition of a custodial sentence for a term exceeding ten years or imposition of the sentence of life custodial sentence, and

2) during the period specified in point 1 of paragraph 1 of this Article the convict did not evade the serving of the sentence and did not commit a new criminal act.

2. The statute of limitations for execution of a judgment of conviction shall run from the coming into effect of the judgment until the commencement of execution of the judgment.

3. Where, after a judgment becomes effective, the convict evades the serving of the sentence, the statute of limitations shall stop running. In this case, the period shall resume running from the day when the convict arrives to serve the sentence or is arrested. However, the judgment may not be executed where fifteen years have lapsed since its coming into effect, and twenty years have lapsed in the case of imposition of a custodial sentence for a term exceeding ten years or of a life custodial sentence, and the statute of limitations has not stopped running due to commission of a new criminal act.

4. Where the convict commits a new criminal act before the expiry of the statute of limitations for execution of a judgment of conviction, the statute of limitations shall stop running. In this case, the statute of limitations for execution of the judgment of conviction shall run from the commission of a new crime or misdemeanour.

5. When imposing a penalty for a new criminal act, the court shall act in compliance with the rules stipulated in Article 64 of this Code.

 

CHAPTER XIII

PREVIOUS CONVICTION


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Article 97. Previous Conviction

1. The persons convicted of commission of a crime in respect of whom a judgment of conviction passed by a court of the Republic of Lithuania or another Member State of the European Union has become effective shall be considered as persons having previous conviction. The persons convicted of commission of a crime in a non-EU Member State, provided that a notice of the coming into effect of a judgment of conviction passed by a court of that state is received under international treaties of the Republic of Lithuania, shall also be considered as persons having previous conviction. The court shall take previous conviction into consideration when imposing a penalty for the commission of a new criminal act, deciding the issue of the offender’s release from a penalty or criminal liability, also when identifying the person as a repeat offender.

2. Previous conviction may be a basis for restricting only those rights and freedoms of citizens whose restriction is provided for by laws of the Republic of Lithuania.

3. The following persons shall be considered as having previous conviction:

1) the persons in respect of whom the execution of a sentence has been suspended – during the period of suspension of execution of the sentence;

2) the persons convicted of negligent crimes – during the period of serving the sentence;

3) the persons convicted of premeditated crimes who have actually served the imposed sentence – during the period of serving the sentence and during the following period commencing after they have served the sentence or have been released from serving the sentence:

a) for three years if convicted of a minor or less serious crime;

b) for five years if convicted of a serious crime;

c) for eight years if convicted of a grave crime;

d) for ten years if they are dangerous repeat offenders.

4. The terms of previous conviction following serving of a sentence or release from serving of the sentence in respect of the minors convicted of the crimes provided for in point 3 of paragraph 3 of this Article shall be reduced by half.

5. The terms stipulated in point 3 of paragraph 3 and in paragraph 4 of this Article shall be calculated from fully serving of the imposed sentence or release from serving of the sentence.

6. Upon the expiry of the time limits laid down in this Article, previous conviction shall expire and the persons shall be considered as having no criminal record.

7. After the lapse of a least one half of the term of conviction, the court may, at the request of the convict, reduce the term of conviction or expunge the conviction.


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8. Where a person who has a previous conviction commits a new crime or misdemeanour, the term until the expiry of previous conviction shall stop running. In such a case, the term until the expiry of the conviction for the previous criminal act shall start to run from the serving of the penalty for the new crime or misdemeanour. The person shall be considered as having previous conviction for each criminal act until the expiry of conviction for the most serious of the acts.

9. When imposing a penalty for the commission of a new criminal act, deciding on the release of the offender from the penalty or criminal liability, also recognising the person as a dangerous repeat offender, the court shall not take into account an effective judgment of conviction passed by the court of another state as referred to in paragraph 1 of this Article where:

1) the taking into account of the effective court judgment of conviction would violate fundamental human rights and/or freedoms;

2) the committed act is not regarded as a crime under this Code;

3) at the time of commission of a criminal act, the person was not of the age at which the act committed by him becomes subject to criminal liability under criminal laws of the Republic of Lithuania;

4) the information received about the judgment of conviction passed by the court of another state is not sufficient, and the state which has forwarded this information does not supply additional information within the specified time limit;

5) there exist other grounds provided for by international treaties to which the Republic of Lithuania is party.


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CHAPTER XIV

COMPULSORY MEDICAL TREATMENT

 

Article 98. Compulsory Medical Treatment

1. The persons who are recognised by the court as being legally incapacitated or of diminished capacity as well as the persons who, after committing a criminal act or having been imposed a penalty, start to suffer from a mental disorder rendering them incapable of understanding the nature of their actions or controlling them may be subjected by the court to the following compulsory medical treatment measures:

1) out-patient observation under the conditions of primary mental health care;

2) in-patient observation under the conditions of a general observation at specialised mental health care establishments;

3) in-patient observation under the conditions of an enhanced observation at specialised mental health care establishments;

4) in-patient observation under the conditions of a strict observation at specialised mental health care establishments.

2. The court shall impose an out-patient observation upon a person where it is not necessary to subject the person to observation and in-patient treatment due to the dangerousness of the committed act and his mental state or where this person may continue out-patient treatment after his mental state improves following in-patient treatment.

3. The court shall impose an in-patient observation under the conditions of a general observation upon a person who needs to be under observation and undergo treatment at a specialised in-patient treatment establishment due to his mental disorder.

4. The court shall impose an in-patient observation under the conditions of an enhanced observation upon a person who needs to be under observation and undergo treatment at a specialised in-patient treatment establishment due to the dangerousness of the committed act and his mental disorder.

5. The court shall impose an in-patient observation under the conditions of a strict observation upon a person who has committed an attempt against a person’s life or health, is particularly dangerous to surrounding people due to his mental disorder and needs to be under observation and undergo treatment at a specialised in-patient treatment establishment.

6. The court shall not fix any period of time for compulsory medical treatment. It shall be applied until the person is cured or his mental state improves and he no longer represents a danger. At least once every six months, the court must make a determination on the basis of the findings of a health care establishment as regards extension of compulsory medical treatment, change of type thereof or discontinuation thereof.

7. Where there is no necessity to subject a person to compulsory medical treatment, also where the court cancels application thereof, the person may be transferred by the court into the custody or guardianship of his relatives or other persons and may concurrently be subjected to medical observation.

 

SPECIAL PART

 

CHAPTER XV

CRIMES AGAINST HUMANITY AND WAR CRIMES


