Journal of Law

Theft, a “Multi-faceted” Crime Against Property

Elza Chachanidze — 2023-12-30

Vakhtang Batonishvili's Law Book indicates that theft can be of various sorts and “multi-faceted”. The ancient Georgian law addresses some similar crimes against property, robbery, piracy, and theft. In all three cases, property was appropriated. Unlike robbery and piracy, theft was not an overt act of violence. Following the legal norms of the old Georgian law, different types of theft can be tentatively classified into the basic, qualified, and privileged composition of the crime. Qualified theft was usually tried in the Court of the King and the thief was sentenced to death or facial mutilation. The main component of theft was the punishment in the form of property compensation, which was determined by the value of the stolen item. The annals of law provide information about the manner of compensation of double, triple, five times, or seven times for that which the thief contributed. The payment of seven times was mostly prescribed, from which a double share of the compensation was given to the victim, and the rest to a specific official, or the state, in general. Based on the above, most of the norms on theft in the old Georgian law are aimed at protecting private and public interests. The private interest was satisfied by the transfer of two parts of the payment of seven times to the owner of the thing, while the rest belonged to the state.

Kafka, Benjamin, Derrida: On Violence, Law and Justice

Zhiron Khujadze — 2023-12-30

The present text is the second part of the article published in the previous issue of the journal. If in the initial section Kafka’s parable “Before the Law” was considered from the philosophical thinking of Walter Benjamin, on the one hand, from Talmudic categories, and on the other hand, from the perspective of the violent nature of law, in the subsequent section the parable will be deconstructed by Derrida, on the one hand, through a quasi-psychoanalytical reading and utilizing Freudian concepts, and on the other hand, by investigating the relationship between law and justice as the aporetic experience between the universal and the singular.

The Content of the Right in the Civil Law

Mikheil Bichia — 2023-12-30

Determining the content of the civil right and its main features is one of the most important issues of civil law. The aim of the research is firstly to critically analyze the theories about a right, and then determine the content of the civil right and its features. We will try to throw light on the methodological foundations of civil rights and the relationship between its legal and factual origins.

Clarifying the issue is important to define the legal nature of civil rights and make out what a subject can protect, where the actual opportunity of a person ends, and from which moment it acquires a legal form. Accordingly, the topic is engrossing from the perspective of legal protection of interests of a subject which provides it with more practical significance.

The research has revealed that theories of rights are flawed and cannot explain the legal nature of rights individually. Therefore, a right should not be reduced to only one component recognized by either one or the other theory. It is appropriate to consider a right in close relation to a duty and distinguish it from the actual possibility. A civil right is studied as an opportunity provided by civil law to perform an action that can be based on both law and contract. This is especially noteworthy within the framework of the principle of ‘’Everything that is not prohibited is permitted’’. Accordingly, the scope of the concept of civil rights should be much wider than the content of public rights.

Lex situs, as a Regulative Principle of the Right to the Object of Cultural Heritage

Tamar Mskhvilidze — 2023-12-30

Unethical, immoral trafficking of cultural property is illegal in most states. The commercial imperative is not responsive to the cultural flow, the importance of intergenerational transmission of culture, or the need to take control over the free movement of cultural property. The demand for antiquities greatly exceeds the diminishing legitimate supply. Suppliers (robbers, dealers, brokers) evade the law when making transnational transactions. Private international law can play a vital role in regulating the cross-border transfer of cultural goods.

Liability without Fault – an Exception to the General Rule of Private Law

Ketevan Kochashvili — 2023-12-30

The principle of Fault liability is a general rule for the substantive branch of private law - civil law, and liability without fault - the so-called Strict liability, as it is referred to in Anglo-American law, is an exception to this rule. Both the provisions of the national and unified law provide for the exemption of releasing the participant in civil circulation from liability due to natural or social circumstances because it would have been impossible to have foreseen or avoided the incident if he had shown the necessary foresight and diligence because of the extraordinary and insurmountable nature of this circumstance. It should be noted that such circumstances in the scope of liability without fault cannot ensure the release of a person from responsibility. A creditor participating in a legal relationship, in the event of a delay in receiving performance, or a debtor because of exceeding the deadline to fulfill the obligation, regardless of their fault, bears the risk of performance of the obligation. Also, the owner of the source of increased danger is responsible for the damage caused to another person by the object or activity considered as a source of danger, regardless of his fault. Civil liability insurance is considered as a deterrent to no-fault liability, regarded as an injustice allowed by law. On the one hand, it socializes the risk for the person liable for the damage, on the other hand, it is found as a means of balancing the interests of the victim.

The Representation in Mediation

Irakli Kandashvili — 2023-12-30

The aim of the article is, on the one hand, to make mediation popular as a new mechanism to resolve a dispute among practicing lawyers, and on the other hand, to emphasize the role of a representative in mediation by lawyers and explain that representation is a typical activity in the process of the new dispute settlement to prepare lawyers for dealing with the peculiarities of the process and develop the appropriate representational skills to perform their functions successfully.

Strengthening the Legal Guarantees of Mediation Confidentiality with Contractual Mechanisms

Natia Chitashvili — 2023-12-30

Confidentiality is a central essential feature[1] of mediation, a fundamental principle, and one of the most important ethical obligations[2] of a mediator which enhances open, honest communication[3] between the parties and the self-expression of their interests, needs, and concerns in a safe environment.[4] Confidentiality is often an incentive to initiate a mediation process because the interest of confidentiality can be realized from a continuum of dispute resolution systems through the use of the mediation process which ensures the non-disclosure of information. A special interest of a party in confidentiality may be driven by the desire to avoid the precedent of a court decision.

The article analyzes the importance of confidentiality in terms of privacy, the obligation of a mediator to inform the parties, and the standards for the safe sharing of confidential information. The article aims to explore the prominence of privacy and legal guarantees, identify possible challenges of implementing confidentiality, and indicate the need to strengthen protection through contractual mechanisms.

[1] Deason E.E., The Quest for Uniformity in Mediation Confidentiality: Foolish Consistency or Crucial Predictability, Vol. 85, Issue 1, 2001, 38; Kirtley A., Mediation Privilege Mediation Privilege's Transition from Theory to Implementation: Designing a Mediation Privilege Standard to Protect Mediation Participants, the Process and the Public Interest, Journal of Dispute Resolution, Vol. 1995, Issue 1, 11; Macturk Ch. H., Confidentiality in Mediation: The Best Protection Has Exceptions, 19 Am. J. Trial Advoc., 1995-1996, 424; Harman J., Mediation Confidentiality: Origins, Application and Exceptions and Practice Implications, Australasian Dispute Resolution Journal, 28(2), 2017, 106; Alexsander N., Chong S., Giorgadze V., The Singapore Convention on Mediation, A Commentary, Wolters Kluwer BV, The Netherlands, 2022, 5.97; Schau J.F., View from the Middle of the Road, A mediator’s Perspective on Life, Conflict and Human Interaction, AuthorHouse, 2013, xix.

[2] Chen A. (ed.), Zhao Y., Mediation and Alternative Dispute Resolution in Modern China, Springer, Hong Kong, 2022, 63; Turner C.‎, Wählisch M., Rethinking Peace Mediation Challenges of Contemporary Peace-Making Practice, Bristol University Press, 2021, 310; Garner B. (ed.), Black’s Law Dictionary, 8^th ed., Thomson West, 2004, 1315; Wendel B. W., Professional Responsibility, Examples and Explanations, Aspen Publishers, United States of America, 2007, 138.

[3] Foster T.N., Prentice S., The Promise of Confidentiality in Mediation: Practitioners' Perceptions, Journal of Dispute Resolution, Vol. 2009, Issue 1, 164.

[4] Boulle L., Mediation, Principles, Process, Practice, LexisNexis Butterworths, 3^rdedition, 2011, 673; Leimguber D., Public Interest and Mediator’s Ethical Dilemma, Australian Dispute Resolution Journal, 24 (3) 2013, 187; Butler V.F., Mediation: Essentials and Expectations, Dorrance Publishing Co., Inc., 2004, 6.

Importance of Aging Policy

Irina Batiashvili — 2023-12-30

An aging policy in the near perspective is beneficial for the country, because the state's income will increase, and more people will be involved in the labor sector. This will help prolong both physical and psychological healthy life. The aforementioned is evidenced by the examples of Israel and Canada, as well as the recommendations of the United Nations and the International Labor Organization and the vision of the European Union on promoting the employment of the older population.

Age division and the development of specific terms (Older persons and Seniors) will help the state create the state program for specific age group citizens. Also, these terms will help to eliminate negative stigmas related to age and aging in the labor market. Individual employment programs and the state subsidy mechanism for improving the skills of older workers will contribute to the sustainable development of employment in Georgia. The mentioned issues respond to the association agreement concluded between the European Union and Georgia.

Historical Evolution of Secured Creditors' Satisfaction in Georgian Insolvency Law: A Comparative Analysis with International Standards

Sopiko Bakhbakhashvili — 2023-12-30

Secured creditors hold a pivotal position in shaping the business sector, given their substantial market influence. To ensure their protection, it is essential that the regulatory norms governing insolvency in the country adhere to internationally recognized standards. In pursuit of this goal, the Law of Georgia "On Rehabilitation and The Collective Satisfaction of Creditors' Claims," enacted on April 1, 2021, is noteworthy. This legislation, diverging significantly from its predecessor, meticulously addresses the role of secured creditors and delineates the criteria for their satisfaction within the framework of Georgian insolvency law.

The objective of this paper is to conduct a systematic analysis of the role played by secured creditors and the historical evolution of satisfying their requirements within the framework of Georgian insolvency law. Simultaneously, the study aims to assess how the enacted Georgian insolvency law aligns with the recommendations, principles, and directives of international organizations.

Determining Amount of the Moral Damages in Cases of Health Damage

Mariam Gaiparashvili — 2023-12-30

The article discusses the specifics of compensation for moral damages and the method of calculation in case of the health damage. The article presents definitions and decisions from the practice of the common courts, where the gaps and inconsistent approach caused by the vague record of the law are clearly visible.

Moreover, it presents the results of comparative legal research. In particular, the legislation and practice of the following countries have been studied: Austria; USA; Belgium; Bulgaria; United Kingdom; Germany; Spain; Slovakia; Hungary; Croatia; Greece; Estonia; Lietuva; Latvia; Portugal; Finland.

Practical Consequences of the Annulment of the Minute of the General Meeting of Partners for Third Parties

Sandro-Giorgi Sarukhanishvili — 2023-12-30

The General Meeting is a critical governmental body of the capital companies. The decision of the general meeting is a legal document of great consequence; however, the significance of the minutes of the general meeting depends on the ownership structure. The general meeting and the minutes of the general meeting are the main legal activities of the company that have legal consequences for partners as well as third parties in the obligation relationship with the companies. Furthermore, private and public establishments have no unified practice on which transactions of the corporation require the decision of the general meeting and which do not. The separate article of the consolidated law on Entrepreneurs of Georgia regulates the possibility of the rescission of the decision of the general meeting, in the case the partner attends the general meeting and does not give his/her consent to the decision. The purpose of the paper is to determine the judicial practice and juxtapose it with the scientific theory, in particular, to what extent the judicial practice and the theory are close to each other and what consequences it may have in future; the main question arises if third parties will be able to protect their rights and ensure the continuance of the obligatory relationship in case of the annulment of the minutes of the general meeting. The paper discusses the nature and characteristics of the general meeting and the formal and substantial grounds for invalidating the decision of the general meeting; the article examines the judicial practice regarding the relevance of the annulment of the minutes of the general meeting.

Impeachment of the President and the practice of the Constitutional Court of Georgia

Maia Kopaleishvili — 2023-12-30

The article discusses the conclusion of the Constitutional Court of Georgia on the impeachment of the President. On October 16, 2023, the Constitutional Court of Georgia rendered a conclusion "On Violation of the Constitution by the President of Georgia" (case № 3/1/1797). In the practice of proceedings of the Constitutional Court, consideration of the issue of impeachment took place for the first time therefore, it has a precedential value. The present article discusses the extent to which the Constitutional Court has realized the importance of constitutional control when concluding the issue of impeachment.

The article presents the essential shortcomings of evaluating the issue by the court. In particular, the article discusses the effectiveness of constitutional control, the issue of the autonomous content of the constitutional terms, the formal definition of the norms of the constitution, and the issue of the normative content and establishing the facts by the court.

Three judges expressed a dissenting opinion on the mentioned conclusion. The article reviews the issues that point out the dissenting opinion.

The article also scrutinizes the legal nature of the conclusion rendered by the court.

Challenges to Adopting a Complete Law in a Legal State

David Lominashvili — 2023-12-30

Nowadays, the law-making process in the legal state faces new challenges that are closely related to the rapid development of democratic processes in the states. Accordingly, as a key instrument to form legal states, maintain peace and unity among people and develop statehood, requires to be refined.

Fair Administrative Procedures and European Standards

Tamar Gvaramadze — 2023-12-30

The article reviews important international standards for the definition of the right to fair administrative procedures guaranteed by the Constitution of Georgia. It is important to ascertain the constitutional standard of rights and also determine the impact on already well-established standards of administrative proceedings within the framework of administrative law.

The research develops the opinion that the gradually advanced principles of modern good administration include the right to good governance, which refers to the right to fair administrative procedures protected by the Constitution of Georgia. As Georgia belongs to the European legal system, the practice of the European Court of Human Rights and the decisions of the Committee of Ministers of the Council of Europe are considered when discussing international standards. The article also examines the practice of the Constitutional Court of Georgia concerning the right to fair administrative procedures at the time of research.

In conclusion, following the practice of the European Court of Human Rights are the elements that define the right to fair administrative procedures, including making decisions: within a reasonable time, after a thorough examination of the circumstances accompanied by proper justification, protection of the legitimate trust of interested parties, making the balance between public and private interests, writing out the procedures clearly and obviously, etc.

Personal Application - the Basis for Dismissal of a Public Servant

Khatuna Loria — 2023-12-30

The dismissal of a public servant based on a personal application is a discretional (optional) ground for dismissal which is related to the right of a person. It is a refusal of service but on the other hand, it obligates a public institution to obey a choice of a person. The article reviews the issues followed by the dismissal of a public servant on this basis. It also highlights the freedom of an officer's will, the purpose of protecting the interest of public service, and judicial practice, and the restriction of the right to dismiss the personal application.

Definition of Legal Norms by Administrative Court

Giorgi Cherkezia — 2023-12-30

The court system is independent and it is exercised by the Constitutional Court of Georgia and the General Courts of Georgia.^[1] As it is well known, the function of the court is to decide the disputed issue in favor of the side towards which the scales of law and justice lean, and not only to control the relevant systems, but also to promote their formation and development^[2]. Court independence is a prerequisite for the fundamental guarantee of the rule of law and due process. A judge must inspire public confidence in the independence, fairness and impartiality of the law.^[3]

The purpose of this article is to determine the peculiarity of the interpretation of the administrative norm by the court. A parallel will be made with the approaches established in the European experience and literature.

^[1] Constitution of Georgia, Art. 59.

^[2] Bator M., What is wrong with Supreme Court, University of Pittsburgh Law Review, Vol. 51, Issue 3, 1990, 697.

^[3] Ethics of Judge <http://hcoj.gov.ge/ka/> [06.08.2023].

Systematic Understanding of the Function of Public Criminal Prosecution

Besik Meurmishvili — 2023-12-30

Public prosecution is one of the necessary and important institutions for effective obstruction of justice. Applying this legal instrument reduces crime, eliminates fear of crime, and strengthens faith in the rule of law in society. Therefore, an accurate understanding of the definition of public criminal prosecution is a kind of guarantee for the correct determination of the criminal law policy for a state. Today, the function of public criminal prosecution is represented on a fairly wide scale in the space of Georgian criminal procedure. This function needs to be further refined and established in a new way to make it more flexible and effective. For this, it is essential to have a clear legal definition of the concept of public criminal prosecution and accurately determine and manage the scope and terms of the prosecution.

Practical Problems of Distinguishing Bribery from Crimes against Property

Levan Zakalashvili — 2023-12-30

The fight against corruption is a global and one of the most pressing problems for countries. Bribery is the most serious corruption crime according to Georgian criminal law. However, corruption, in addition to bribery, can be committed by using the official position, involving crimes against property, such as “misappropriation or embezzlement” and “fraud”. In Georgian judicial practice, it is often problematic to distinguish bribery from the mentioned crimes against property. This article is dedicated to demonstrating the significant gaps in the decisions of judicial and investigative bodies in this regard. It proposes ways to solve the problem of differentiating these crimes from each other, ensuring accurate legal classification of the act.

Gender-based Violence Against Women and Domestic Violence

Natia Merebashvili — 2023-12-30

Violence against women is widespread issue and crime all around the world. Despite that states and international organizations have made great efforts in this direction, the latent nature of this crime and the existing Stereotyped attitudes prevent it from being effectively combated, especially if there is gender-based violence, which is much more difficult to effectively respond to and prevent than a one-time, violence as situational action. Gender-based violence is more prevalent in cases of domestic violence and this makes it even more difficult to detect the crime, its correct classification and fight against it.

The article reviews the compatibility of Georgian National Legislation with International Documents regulating this issue, the nature of gender-based violence, the issue of defining motive in criminal cases and Practice of Georgian and European Courts of human rights.

Implementation Questions of the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC) in Georgia

George Bakhturidze — 2023-12-30

The World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC) is an international treaty established by WHO to address the global health issue of tobacco consumption, necessitating implementation at the national legislative level.

The article explores the global problem of tobacco use and how it led to the creation of an international treaty to regulate it. It discusses how the FCTC was planned and Georgia's role in it. The analysis covers the legal side of the FCTC, including international and local rules for putting it into action. The article also talks about the challenges that have made it difficult to meet the FCTC's obligations from both legal and political viewpoints. This is the first attempt to explain the FCTC and the issues it faces in being adopted and carried out in Georgia.

Balancing the Right to Privacy and National Security Interests in the Digital Age

Ketevan Kukava — 2023-12-30

In order to protect national security, the states widely use secret surveillance measures and monitor electronic communications, which poses high risks of arbitrariness and abuse of power. Modern technologies enable the states to collect and process personal data on an unprecedented scale. Therefore, the most important challenge in today’s world is to determine how to protect national security and prevent serious crimes without violating human rights.

The judgments of the European Court of Human Rights provide guidance in terms of balancing the right to privacy and security interests. The present article aims to discuss the development of the case law of the European Court and the legal safeguards for protecting the right to privacy when the state carries out secret surveillance measures.

Mediating in the Shadow of the Courts: A Survey of the Emerging Case Law

James J. Alfini (Author) — 2023-12-30

Abstract is not available in the article.