Journal of Law

Crucial Changes in Polish Regulation of Parental Authority Over the Last 100 Years

2024-12-06T20:02:09+04:00

The article discusses significant changes in Polish family law over the past century. It focuses on the concept of parental authority, explaining its meaning and position in Polish law in the first part of the article. The following section mentions and comments on legal documents related to parental authority during the last century. The final section investigates five legal changes in the institution under study which the author considers crucial for its development. These changes include the legal status of men and women in relation to parental authority, the legal status of out-of-wedlock children, the predominant values underpinning parental authority, the prohibition of corporal punishment, and the state’s interference with parental authority. The article argues that despite the changes in legal, political, and economic systems experienced by Poland over the last century, there has been significant continuity and stability in the development of Polish family law.

The King as a Guarantor of Law Enforcement According to One Legal Formula in the Monuments of Georgian Law

2024-12-07T01:19:04+04:00

The article is devoted to the analysis of one legal formula found in the monuments of Georgian law, from which it can be seen that the king appears as the first and most important guarantor of the execution of law in ancient Georgia. Failure to comply with his order is equated with a crime committed against the king. The latter is punished most severely in a feudal state. The activities of public officials are also ensured by the authority of the king as an institution.

Phenomenological Inquiries into Gerhart Husserl’s Scientific Work "The Subject of Law and the Legal Person"

2024-12-07T01:28:15+04:00

The scientific work presented by Gerhart Husserl is devoted to the concepts of the ontological nature of the subject of law and a legal person. The author analyzes their specific features using a phenomenological approach and offers original findings.

According to the study, the subject of law is regarded as part of the real sphere, while a legal person is seen as an abstract (legal) phenomenon. Gerhart Husserl believes that the subjectivity of law is determined by factors of self-consciousness and personal identity; the subject of law has an individual will, full autonomy, and moral responsibility. As for a legal person, it is considered an artificial construction; its will is determined by collective decisions, and its freedom of action is limited by certain rules. In addition, the responsibility of a legal person is solely legal in nature. The intentionality acting on the subjectivity of law is aimed at one's own consciousness, while a legal person has a functional load. Thus, according to Gerhart Husserl, the distinction between the concepts of the subject of law and a legal person is expressed in their ontological nature, the foundations of origin, specificity of will, scope of autonomy, nature of responsibility, various skills and circumstances.

Unusual Standard Terms of Contract

2024-12-07T14:26:45+04:00

The protection of contractual equality is of great importance within the private law framework, as its violation will lead to a breach of contractual fairness. To avoid such a result, civil legislation limits freedom of contract and sets a reasonable scope for participating parties, thus, taking a step towards the restoration of contractual equality and justice. As an example, we can cite a contract with standard terms.

The main prerequisite for limiting freedom of contract is content control when intervention (influence) occurs directly in the content of the contract. In case of standard terms, the intervention is aimed at limiting the content of multiple-use contracts. Therefore, the realization of freedom of contract in the same dose, as it is possible in other cases, does not take place under standard terms. The principle of private law - everything that is not prohibited by the law is allowed, is applied to standard terms in a limited manner, which reinforces the need to control the content and the scope of its existence.

The subject of the research is not the standard terms of the contract in general; rather the unusual provisions of the standard terms of the contract provided for in Article 344 of the Civil Code of Georgia (hereafter CCG), which is "negative control of inclusion in the contract" and, accordingly, the correction of the result according to which the term "by itself" would have been valid if it were not unusual.

Grounds for Termination of the Apartment Rental Agreement

2024-12-07T14:36:56+04:00

The paper delves into the intricacies of apartment rental agreements, the freedom to determine their form and content, and the practical issues related to it, which may arise within the context of freedom of contract. The paper also examines the rights and obligations of the parties to the agreement, which mainly entail the basis for determining, reducing, increasing, the amount of rent, and terminating the contract. Relevant judicial practice analysis is provided.

Based on a comparative study, opinions and recommendations are expressed on the role of the state in regulating and controlling the scope of apartment rental and changes in it, which will guarantee the protection of the rights of the parties, both landlords and tenants, and therefore the stability of apartment rental agreements. Conclusions were made on the need for state intervention, its form, and scope, which will help to resolve the relations and issues arising from the apartment rental. This objective can be met by perfecting the legislation, demonstrated through commentary on legal norms that align with practice, and by implementing specific amendments.

The comments and opinions expressed in the paper will be of use to both practicing and non-practicing lawyers, students, and all other stakeholders.

Piercing the Corporate Veil and Its Variations (On the Example of German, American, and English Legal Practices)

2024-12-07T14:43:13+04:00

The capital form of a corporate entity is currently the most prevalent form of conducting business worldwide, driven by its diverse, profitable, convenient, and investor-oriented structure. Specifically, the privilege of limited liability encourages interested parties to boldly diversify their business portfolios without the risk of losing personal assets. However, this fundamental principle of corporate law also has exceptions, known as piercing the corporate veil. Most developed countries agree that in certain cases, it is unavoidable and necessary to invoke this exceptional measure to maintain or restore justice. This pertains to the personal liability of partners in cases of "abuse of rights" within the corporate structure.

This paper examines the concept of piercing the corporate veil and the various approaches developed and established in different countries. Following the introduction, there is a brief historical overview of the formation of this doctrine, which thematically encompasses the essence of legal entities—legal fictions—and their independent, separate legal status, logically leading to the possibility of disregarding this separation through exceptional measures.

It is crucial to highlight the legal foundations that legitimize the application of traditional piercing of the veil in the judicial practices of different countries, making the essence of the sub-types of this doctrine comprehensible to the reader. Additionally, the research aims to showcase the similarities and differences with variations such as reverse veil piercing in American law and the doctrine of lifting the veil in English law. Furthermore, the paper presents the latest approaches of German courts regarding the application or restraint from piercing the veil, where the aforementioned American/English terminology is not used, yet the approaches are fundamentally closely related. The conclusion summarizes the results of the research conducted around the topics discussed in the article.

Author's Rights in Musical Works within Contractual Relationships and International Legal Mechanisms for their Regulation (Comparative Legal Research Based on German Example)

2024-12-07T15:45:25+04:00

The author's rights in author’s rights within contractual relationships and international legal mechanisms for their regulation have proven to be quite problematic issues, which demonstrates their relevance. Increased Georgian-language literature on authors' rights in author’s rights would enhance understanding and address local needs. while national legislation should be further harmonized with European, especially German legislation.

This scientific article aims to explore the complexities of authors' rights in musical works, particularly within contractual relationships. It examines international regulatory mechanisms and suggests potential solutions to current challenges.

The subject of this research is to study musical work author's rights in contractual relationships within the framework of comparative research and analyze doctrine and court practice based on international legal mechanisms for their regulation.

The article creation process is mainly doctrinal, using the following research methods: documentary; comparative legal; descriptive; historical-legal and systematic.

Human Rights and Artificial Intelligence

2024-12-07T15:50:25+04:00

Abstract is not available in English.

Fully Automating the Administrative Act and its Accompanying Risk

2024-12-07T16:00:08+04:00

In recent decades, technological innovations have significantly changed the behavior of the state and society. Consequently, technological development has had a huge impact on public administration activities, since the development of technology and their integration are mostly related to the need for electronic governance[1]. Digitization of processes, switching to electronic forms, and sometimes automation have become necessary. Digitalization and automation must be discussed independently of each other as digitalization of the same digital governance is an important prerequisite for automating the public administration process[2].

The article analyzes the extent to which the automated decision meets the requirements of the administrative act and how the automated actions of the state affect the procedures and its basic principles. The article refers to the importance of automated production and the forms of applying an administrative act on its basis, definitions of electronic and automated acts, and the difference between them. The special focus is on the legal problems and challenges of a fully automated act issued by an administrative body in implementing public administration, and its constitutional-legal grounds

[1] E-governance, or digital governance, is associated with the introduction of innovations and technologies in the field of public administration.

[2] Tskhadadze K., E-Government Implementation on the Example of Georgia, TalTech Journal of European Studies, 14(1), 2024, 254.

Institute of Temporary Ruling in Administrative Court Proceedings, Practice of Common Courts and Comparative Legal Analysis with the Legislation of Other Countries

2024-12-07T17:12:55+04:00

One of the fundamental goals of the legal state is the unwavering protection of basic human rights, among them, legal security and the guarantee of judicial protection of the rights. The preventive remedies of protection of a person’s Right in administrative court proceedings, as well as in generally Administrative Law, it is to give a special importance as the result of which the legal relationship arising between the physical person and administrative body based on Administrative Legislation is regulated and in turn, it is a guarantee of the protection of the plaintiff’s right for the implementation of an effective justice in the future.

The problem of Delayed justice, which has a negative impact in economic, political and social perspective, an ‘’immediate react’’ need to be found in response.[1]

The first part of article 31 of the Constitution of Georgia provides a person with the right to apply to the court for the protection of his rights, as well as the right for the fair and timely adjudication of the case. [2]

The present paper examines the peculiarities of one of the measures of preventive protection of the right – The Institution of Temporary Ruling and the prerequisites for its use by the common court, as well as the current legal reality in terms of judicial practice.

The paper also presents the research of the Institute of Temporary Ruling from a comparative legal point of view on the examples of Germany, France, Estonia and the United States of America.

The paper analyzes mechanisms of legislative regulation in above mentioned countries and the approaches established in the theory regarding the Institution of Temporary Ruling.

[1] Sierra de la S., Provisional Court Protection in Administrative Disputes in Europe: The Constitutional Status of Interim Measures Deriving from The Right to Effective Court Protection. A Comparative Approach, European Law Journal, [Vol 10]1, 2004, 42.

[2] The first part of article 31 of the Constitution of Georgia, The Legislative Herald of Georgia, 24.08.1995, (in Georgian).

Problems of qualification of torture and humiliating or inhuman treatment in domestic violence cases according to the practice of the general courts of Georgia

2024-12-07T17:17:13+04:00

Annotation: In the practice of general courts of Georgia, the problem of qualification of crime is not a rare case. This especially reffers to crimes between which to draw a line is difficult. Among such cases are the crimes provided for by articles 144¹ (torture)^[1] and 144³ (humiliation or inhuman treatment)[2] of the Criminal Code of Georgia. It is important to separate them - from each other and from other crimes.

The scientific article presents the criminal law cases of the domestic violence[3] category, in which the above-mentioned problem appeared and which were considered by all three courts of Georgia.

[1] The first part of Article 144¹ of the Criminal Code of Georgia – “Torture, i.e. exposing a person, or a third person to such conditions or treating him/her in a manner that causes severe physical pain or psychological or moral anguish, and which aims to obtain information, evidence or confession, threaten or coerce, or punish the person for the act he/she or a third person has committed or has allegedly committed“.

[2] The first part of Article 144³ of the Criminal Code of Georgia – “Humiliating or coercing a person, placing him/her in an inhuman, degrading and humiliating condition, which inflicts severe physical and psychological suffering on him/her”.

[3] Article 11¹ of the Criminal Code of Georgia – “A domestic crime shall mean a crime under Articles 109, 115, 117, 118, 120, 126, 133¹, 133², 137-141, 143, 144-144³, 149-151¹, 160, 171, 187, 253-255¹, 381¹ and 381² of this Code, which is committed by one family member against another family member. Criminal liability for a domestic crime shall be determined according to an appropriate article of the Criminal Code of Georgia specified in this article, with reference to that article”. With the first part of the note of the same article – “For the purposes of this Code, the following persons shall be considered family members: a mother, father, grandfather, grandmother, spouse, person in an unregistered marriage, child (stepchild), foster child, foster carer (foster mother, foster father), stepmother, stepfather, grandchild, sister, brother, parent of the spouse, parent of the person in an unregistered marriage, spouse of the child (including the one in an unregistered marriage), former spouse, person who previously was in an unregistered marriage, guardian, custodian, supporter, person under guardianship and custodianship, beneficiary of support, as well as other persons that maintain or maintained a common household”.

Referral Institute in Juvenile Justice

2024-12-07T17:43:46+04:00

Physiological transformation in juveniles from adolescence to adulthood[1],, namely, emotional, cognitive and physiological metamorphosis[2] leads to deviation, and quite often, criminality. Albeit, factors provoking an adolescent to become a delinquent are rarely of a general nature – is not the family as a primary source of socialization[3] playing a vital role in refining the adolescent as a decent society member? It is a question whether primary educational level[4] either friend bunch[5] give an example to juvenile and create inner self[6] which provides adolescent’s compass direction in this or that way?

[1] United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), General Assembly Resolution №45112, Adopted 14 December 1990, Article I.5 (e) <https://www.ohchr.org/en/instruments-mechanisms/instruments/united-nations-guidelines-prevention-juvenile-delinquency-riyadh> [26.05.2022].

[2] Richards K., What Makes Juvenile Offenders different from Adult Offernders? Trends & Issues in Crime and Criminal Justice no. 409., Canberra: Australian Institute of Criminology, 2011 < https://www.aic.gov.au/publications/tandi/tandi409> [26.05.2022].

[3] United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), General Assembly Resolution №45112, Adopted 14 December 1990, Article IV.A (12) <https://www.ohchr.org/en/instruments-mechanisms/instruments/united-nations-guidelines-prevention-juvenile-delinquency-riyadh> [26.05.2022].

[4] Ibid, B.

[5] Juvenile Crime, Juvenile Justice, National Research Council, Institute of Medicine, National Academies Press, Washingtom DC., 2001, 80-83 < https://nap.nationalacademies.org/read/9747/chapter/5#67> [26.06.2022].

[6] Shalikashvili M., Criminology, 3^rd Ed., Meridiani, Tb., 2017, 34-35.

The Characteristics of the Institution of Crime Victims According to International Legal Acts

2024-12-07T17:52:43+04:00

Criminal action against the victim is the basis for the universally recognized protection of human rights, strengthened by international instruments, and the neglect of all other rights and freedoms.

Criminal action against the victim (crime victim) leads to a violation of the honor and dignity of a citizen, damage to physical and mental health, and breach of fundamental human rights and freedoms.

To ensure the restoration of his/her violated rights, a legal mechanism shall be established to actively participate in justice and better protect his/her legitimate interests.

Protection of the interests and rights of natural and legal persons affected by crime is declared as one of the main objectives of the state legal system of Georgia.

The purpose of the study is to review and analyze international acts and the basic principles and recommendations, the consideration and implementation of which in the national legislation will contribute to the realization of the rights of the victim (victim of crime) and the full protection of his/her legal interests. The legal basis for prioritizing the interests of victims, rights, and freedoms is the acts of international law, including the Universal Declaration of Human Rights (1948), the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the International Pact of Civil and Political Rights (1966), Declaration of the Fundamental Principles of Justice for Victims of Crime and Abuse of Authority (1985), EU Charter of Fundamental Rights (2000), Framework Decision of 15 March 2001 on the status of victims in criminal proceedings adopted by the Council of the European Union (other legal acts of the European Union and the Council of Europe), Decisions of the European Court of Human Rights.

Confiscation as an Essential criminal mechanism for countering Transnational Organized Crime

2024-12-07T19:03:56+04:00

The paper addresses one of the challenging issues of modernity. Although many international and domestic tools[1] have been developed in recent decades, including the fight against transnational organized crime, it is becoming increasingly extensive and global. "According to the International Monetary Fund, revenue from drug trafficking and money laundering accounts for six to eight percent of the global economy.[2] Thus, the fight against this phenomenon necessitates a continually updated approach.

The increased use of digital technologies in the public and private sectors made criminals inclined to commit crimes causing immeasurably great economic harm to society. The leading driving factor for Transnational Organized Crime is to make the maximum profit in a short time. The effective fight against this complex criminal event is about recovering and confiscating assets acquired through committing crimes.[3]

The paper is based on an analysis of doctrine and judicial practice. It also discusses distinct aspects and modern challenges related to the return of criminal assets in the fight against transnational organized crime.

The study aims to identify gaps and measures taken to ensure their solution.

[1] Tumanishvili G., (Samets. Ed.), Jishkariani B., (Samets. ed.), Shrami E., (Ed.), Influence of European and International Law on Georgian Criminal Procedure, Tb. 2019, 800-801.

[2] Shelley, L., Transnational organized crime and seized assets: moral dilemmas concerning the disposition of the fruits of crime, 7 Maastricht J. EUR. & Comp. L.35 (2000), [24.01.2023].

[3] "Crime does not pay", - White paper on best practices in Asset Recovery, 1, https://www.interior.gob.es/opencms/pdf/archivos-y-documentacion/documentacion-y-publicaciones/publicaciones-descargables/seguridad-ciudadana/White-paper-on-best-practices-in-asset-recovery-NIPO-126-12-071-X.pdf [05.08.2024].

Actual Issues of Reform of Georgian National Security Sector’s Accountability and Oversight System

2024-12-07T19:27:13+04:00

By its nature and specific obligations, the security assurance system contradicts external control, oversight and accountability principles, because its significant part and decisions are related to secret activities and documents. Therefore, in the democratic governance of national security and oversight of the activities of security institutions, the role of the Parliament, as the highest standing political authority, acting for the interests of the people is extremely important. The Parliament, as the highest legislator sets scopes for the activity, accountability and control of security institutions.

Efficient parliamentary oversight increases the quality of accountability of security institutions and protects the society from arbitrary, inappropriate or repressive governance.

A democratic governance system requires efficient oversight of secret activities. This objective can be achieved, first of all, via independent, powerful institutions and the system that provides oversight of personal data collection. The oversight is not limited to parliamentary oversight only, the development of governmental, judicial and independent institutions is not less important.

This Paper presents experience and analysis of the development of the oversight system over the activities of the security institutions of Georgia and other democratic countries.

The Paper provides the comparative analysis of experiences of Georgian and foreign countries about the oversight of the activities of security institutions and personal data protection in secret activities. The Paper puts some issues for discussion concerning the actual matters of the reform of the control system over the activities of security institutions, providing the considerations about establishing new, independent oversight institutions.

Privacy and Personal Data Protection v. the Protection of National Security and the Fight Against Crime: An Analysis of EU Law and Judicial Practice

2024-12-07T19:33:41+04:00

Considering the risks that accompany technological progress, the need for personal data protection has significantly increased in today’s world. While digital technology offers many benefits, it has also created unprecedented opportunities for surveillance, posing a threat to human rights and democratic values.

Fighting against crime and safeguarding national security are important legitimate aims, and processing data related to electronic communications is one of the means for their achievement. At the same time, the state’s extensive power can create a sense of constant surveillance and give rise to a chilling effect. The wide discretion of state authorities and the covert nature of implemented measures generate a high risk of human rights violations. Therefore, one of the main challenges in human rights law is finding a balance between combating crime and protecting national security, on the one hand, and safeguarding human rights, on the other.

Over the past few years, the Court of Justice of the European Union has delivered significant judgments on the compliance of legal regimes governing the retention and transmission of electronic communications data with EU law. When ensuring a fair balance between different interests, the CJEU appropriately considers both the threats present in the modern world and the importance of human rights protection.

The present article discusses the processing of personal data in the electronic communications sector under EU law and analyses the development of the case law of the Court of Justice of the European Union.

The Role of the President of Georgia in the Appointment and Dismissal of the Ambassadors of Georgia and the Heads of the Diplomatic Representations

2024-12-07T19:36:46+04:00

The field of foreign relations has been subject to dispute between the President and the Government of Georgia since 2013. Apart from the representation power and conclusion of the international treaties, the matter of appointment and dismissal of the ambassadors and heads of the diplomatic representations has been subject to controversies followed by the constitutional claims dated 16 August 2022 and 10 June 2022 submitted by the Government against the President of Georgia.[1] In particular, for the first time in the history of Georgia, the matter of the constitutionality of the President’s inaction in appointment and dismissal of the ambassadors and the heads of the diplomatic representations has been made subject to the discussion of the Constitutional Court of Georgia.[2] However, the Government of Georgia revoked its constitutional claims on unknown grounds[3], therefore, the Court was deprived of the possibility to hear and consider the said constitutional claims.

Deriving from the above mentioned, the present work discusses the constitutional status of the President of Georgia and the role granted to the President in relation to the appointment and dismissal of the ambassadors and the heads of the diplomatic representations.

[1] The constitutional claim of the Government of Georgia against the President of Georgia, dated 10 June 2022, N1711.

[2] The constitutional claim of the Government of Georgia against the President of Georgia, dated 16 August 2022, N1723.

[3] See the Orders of the Constitutional Court dated 03 February 2022 N3/1/1711 and N3/2/1723.

The Scope of Functions of Penalty Clauses when Claiming Cumulatively with Reimbursement of Lost Income

2024-12-07T19:55:20+04:00

Abstract is not available in the article.

Advantages and Risks of Centralized Management

2024-12-07T20:04:21+04:00

Abstract is not available in the article.

Some Criminological Aspects According to Christian Orthodox Doctrine - Davit Tsulaya, Tbilisi, 2024 (Review)

2024-12-07T20:12:08+04:00

Abstract is not available in the article.