Journal of Law

Subject of Law: Three Hypostases

2024-07-07T22:17:43+04:00

The article, the Georgian translation of which is offered to the reader, was first published in 1989 in the 34th volume of the "Archives of Legal Philosophy" magazine...

Historical Foundations of an Informed Consent of a Patient and Contemporary Challenges in Practice

2024-07-07T22:56:33+04:00

The idea of protecting the patient's informed consent is not an offspring of the modern era. It was known in the antique period, but it had a different meaning - the concept of informed consent was based on the patient's social status. The long-standing paternalistic attitude disregarded the patient's will and gave the doctor absolute freedom to decide on the issues related to medical intervention for the patient. This approach was based on the belief that the doctor knows what would be better for the patient.

At the beginning of the twentieth century, priority was given to the principle of patient’s personal autonomy, which slowly deepened its roots in judicial practice. Modern reality pays attention to the patient's free will, thereby bringing to the forefront the idea of respect for human personal autonomy and dignity. For this purpose, the most important postulates of giving the patient's informed consent (voluntatiness, ability to understand, the patient's authority to make decisions, etc.) were formulated, which cumulatively require protection.

The issue of distribution of the burden of proof is noteworthy. Clinics must work hard to meet their burden of proof, as violations of informed consent are grounds for nonpecuniary damages. If it is accompanied by inhuman or degrading treatment, this is considered a qualifying factor in the European Court of Human Rights and increases the amount of compensation for non-pecuniary damage.

In the field of effective protection of rights, it is important to consider more the approaches of the European court practice of human rights. For this purpose, not only the formal aspect of informed consent should be in focus, but also the protection of its content.

Psychologist's Institute in the Context of a Multidisciplinary Approach to Juvenile Justice

2024-07-07T23:07:09+04:00

The article is devoted to the presentation of the role and importance of the psychologist's institute as a guarantor of the protection of the child's rights in exercising the child's right to justice in the manner of civil proceedings, and offers recommendations in terms of strengthening and increasing the efficiency of the said institute.

The Content and Structure of the Decision Adopted by the Court of First Instance According to the Civil Procedure Norms of Georgia and Germany

2024-07-07T23:18:54+04:00

Georgian judicial practice shows that during the 25 years of existence of the Civil Procedure Code, a certain legal tradition has been formed regarding the structure and content of court decisions. There is a certain understanding of Article 249 of the Civil Procedure Code of Georgia, which the courts usually rely on. This article analyzes to what extent this understanding and existing structural, content and stylistic standards correspond to the requirements of the law and the needs of the addressees of the decision, and to what extent it will be possible to change and improve the existing practice. For this, the author reviews the relevant norms of Georgian and German law and offers Georgian judges an alternative method of decision structuring. The article also contains some stylistic and content recommendations.

Analysis of the fulfilment of obligations under the EU – Georgia Association Agreement in the field of Occupational Safety (Legislative Compliance and Effectiveness of Implementation)

2024-07-07T23:26:36+04:00

The purpose of this study is to analyze the fulfilment of the obligations assumed by the Association Agreement with the European Union in the field of occupational safety, the legal compliance of Georgian legislation with the directives of the Council of Europe and the conventions of the International Labor Organization, and the effectiveness of the enforcement of labour safety standards at different stages of the labour legislation reform implemented in 2015-2023.

The analysis of the achievements and challenges of the latest reform in the field of occupational safety is based on the analysis of annual reports of international organizations, labour inspection, as well as the results of written and oral surveys of stakeholders in the field of occupational safety, which highlight proposals for legislative improvement in the field of labour inspection and recommendations for improving the effectiveness of enforcement.

The results of the study were generalized in the form of the latest challenges and recommendations in the field of occupational safety, which determine the proposals for the expansion of labour legislation and the improvement of the effectiveness of enforcement.

Transactions Concluded Under Duress and Immoral Transactions: Comparative Analysis

2024-07-07T23:39:27+04:00

The following article examines legal transactions concluded under the defect of declaration of intent, more precisely, the interrelation of transactions concluded under duress (Article 85 of the Civil Code) and immoral transactions (Article 85 of the Civil Code). Confusion between immoral agreements and duress in Georgian judicial practice is commonplace. Duress, as a socially unacceptable conduct, is often viewed as an immoral behaviour, regardless, immorality ground might not lead to the voidness of a transaction. The article explores German and English judicial practices and legal literature to provide an enhanced understanding of the interrelation between the said transactions. Considering that Georgian law stands closely with German law, drawing parallels with it is a logical approach. As for English law, it is one of the first countries in the world to adopt the concept of “undue influence” (immorality). In terms of immoral agreements, the article does not focus on the immoral transactions in their content (e.g. prostitution), but rather on the transactions, which, at a glance, are neutral, yet their motive or purpose is immoral.

The Problem of Defining the Scope of Support on the Example of "Daily Deals".

2024-07-07T23:43:53+04:00

Capacity reform has laid the foundation for discussion on interesting, complex and important issues at both the international and national levels. This article is devoted to the issue of appointing support for a person with psychosocial needs, using the example of daily transactions. The legal regulations in the Civil Code and the Procedural Code, as well as court practice, have been evaluated in accordance with international norms and the decision of the Constitutional Court of Georgia. As a conclusion, the author's vision is proposed in relation to the above-mentioned issues.

An “Inducer” Third Person in Contractual Relations – Grounds and the Scope of Liability

2024-07-07T23:49:10+04:00

In parallel with the evolution of contractual relations, the pre-contractual stage acquires increasing significance, where, along with a future creditor and a debtor, partake third parties, who might influence the forming of the consent of the negotiating persons. The following article explores the issue of the engagement of said third parties in pre-contractual relations, the grounds for claiming damages from them and the scope of liability; More precisely, highlighted is the legal nature of the claims raised against “inducer” third persons, and how it differs from other claims in the law of obligations.

Despite the participation of third persons in a pre-contractual stage and the practical importance of asserting a claim against them, Georgian norms fail to adequately and extensively regulate the issue. Hence, through the comparative legal methodology, the paper analyses the topic through the Georgian and German normative order lens. Definitions presented in the German doctrine of “culpa in contrahendo”, as well as, judicial practice.

Unpacking U.S. and German Individual Bankruptcy Systems: Insights and Recommendations for Georgia

2024-07-08T13:06:29+04:00

I want to thank Professor Tibor Tajti (Central European University) for his invaluable guidance and support during my research. Also, I extend my appreciation to Emeritus Professor Reinhard Bork (Hamburg University) for his insights into the German consumer insolvency system.

The article addresses the absence of individual bankruptcy law in Georgia, despite the growing need arising from increased credit accessibility and subsequent default rates. The central research question revolves around an in-depth examination of individual bankruptcy frameworks in the United States (U.S.) and Germany. Drawing from these jurisdictions, this article offers recommendations to inform Georgian lawmakers on key policies, regulations, and features to consider when instituting provisions for individual bankruptcy.

Furthermore, insights gained from an interview with Emeritus Professor Reinhard Bork, a distinguished authority on German insolvency law, enrich the discourse on the practical issues of the German consumer insolvency system.

Impact of the Position of the Victim on the Implementation of Justice (Domestic Violence Cases)

2024-07-07T23:53:03+04:00

Adjudication of justice in cases of domestic violence still remains a major challenge for the criminal justice system despite the abundance of international acts, the harmonization of national legislation with international standards, a number of mechanisms for the protection of victims, the availability of crime prevention and resocialization programs for criminals, awareness-raising campaigns, and a substantial change in the public attitude to the issue, the widespread use of restraining orders, the appeal of victims to law enforcement agencies, and a significant increase in the number of convictions [1]. One of the major challenge is related to either the changed position of the victim during the trial or, depending on the nature of the crime, lack of evidence for the conviction despite the victim's incriminating testimony.

[1] During 2023, 2928 persons were convicted for family crimes, of which 1413 were convicted of domestic violence. Of these, 427 and 228 persons were acquitted, respectively; 988 and 438 persons (respectively) were sentenced to imprisonment. In 2022, 2375 people were sentenced for domestic violence and family crime, and 420 people were acquitted.

Age of Criminal Responsibility

2024-07-08T00:02:57+04:00

This article is dedicated to the age of criminal responsibility. The relevance of this topic is defined by studying the physical and mental nature of a child and taking into account the socio-economic factors affecting him/her, it is possible to identify the problematic nature of the age of criminal responsibility.

The measure applied to a child committing a criminal act should be proportional to the severity and circumstances of the offense, as well as the conditions and requirements of the child considering his/her best interests.[1]

Introducing this study, a reader will be convinced that children in conflict with the law should not be treated as adults because of their limited emotional, psychological, moral, and social development.

[1] International Standards in the Field of Juvenile Justice, UNICEF, 2011, 35, adopted by UN resolution N40/33 of 29 November 1985.

EU-Georgia Association Agreement in the Light of Direct Application of Law

2024-07-08T00:08:12+04:00

Abstract is not available right now.

Way of Discovering Constitutional Identities in Different Jurisdictions

2024-07-08T00:15:36+04:00

In legal scholarship there are different approaches regarding the constitutional identities. The paper presents the views of Georgian and foreign professors, some of which are contradictory. The main topic of the article is to single out and classify the ways of discovering constitutional identities. The author, drawing from examples of different states, puts forward 4 ways of discovering constitutional identities. According to the first model, constitutional identity can be discovered outside the text of a constitution, namely in declaration of independence. The example of this model is the United States. The second model suggests looking at the preambles of the constitutions. Here the example would be Turkey. The third way of discovering constitutional identities is to resort to the master text of the constitution. Here two subtypes can be distinguished. On the one hand, general norms in the constitution can bear the function of constitutional identity. On the other hand, it can be unamendable provisions. For each case the examples are drawn from the respective jurisdictions. The fourth model of discovering constitutional identities is to look at judicial decisions.

The article analyzes critically the possibility of unamendable provisions to be the bearers of constitutional identity. The author argues that not in every case an unamendable provision reflects the constitutional identity. The article suggests a kind of formula which can be used to tell in which cases can an unamendable provision be constitutional identity. The appropriate examples are given to test the formula.

Requesting the Justification of a Constitutional Claim as a Guarantee of Effective Constitutional Control

2024-07-08T00:19:17+04:00

Following an increased appeal the Constitutional Court of Georgia faces the challenge not to be overburdened with baseless constitutional claims and submissions. The court needs to take into consideration the issues that fall within the scope of powers determined by the Constitution and serve to restore the violated right and prevent an infringement of the right. Since the substantial consideration of each constitutional claim is related to limited human and material resources, only their rational application can ensure the implementation of the mandate of the Constitutional Court.

The article is dedicated to the complex and comparative analysis of the theoretical and practical problems arising while deciding on the issue of considering constitutional claims substantially, particularly in terms of requesting justification. The paper will also discuss specific recommendations to improve legislation in the mentioned discipline and provide judicial practices.

Problems with the Separation of Disciplinary Proceedings and Administrative Proceedings Related to Whistleblower Application

2024-07-08T00:24:15+04:00

The norms regulating whistleblowing have been in Georgia since 2009^[1] which have gone through numerous amendments. Nevertheless, its implementation still experiences some practical challenges. The main difficulty is the separation of administrative proceedings related to the disciplinary procedure and the whistleblower application. Procedural ambiguity establishes a sporadic administrative practice, which negatively affects the functioning and the execution of public administration, in general.

[1] Law of Georgia on Amendments and Additions to the Law of Georgia on Conflict of Interest and Corruption in Public Service, Legislative Herald of Georgia, 9, 13/04/2009, https://www.matsne.gov.ge/ka/document/view/18034?publication=0, [28.02.2024].

Ensuring Shareholder Rights through Court

2024-07-08T00:30:07+04:00

Abstract is not available in the article.