Law and World (E-Journal) / სამართალი და მსოფლიო
Not a member yet
437 research outputs found
Sort by
დანაშაულის პროვოკაციის შემადგენლობა
Get PDFEvery single element of each particular offence requires to be considered with great care and precision. Entrapment is no exception. From the theoritical point of view it will allow us to determine whether Entrapment is kind of instigation or just delictum sui generis? From the practical point of view, it will allow to separate entrapment from resembling concepts such as the test purchase, controlled delivery etc. We will be able to grasp exactly what should be imputed to the provocateur. But before doing that we need to determine what exactly Entrapment is. What are the elements of crime that establish entrapment
საქართველოს სამოქალაქო კოდექსის საკანონმდებლო ხარვეზები ხელშეკრულების დასრულების ინსტიტუტებთან მიმართებაში
Get PDFThe article“Legislative gaps of Georgian Civil Code with regard to the institutions of the contract completion” deals with the most important institutions of civil law, such as: withdrawal from the contract and termination of the contract, legislative gaps of the Georgian Civil Code in respect of them and judicial practice. Abovementioned issues were considered in accordance with the Georgian civil law and it is compared with the German Civil Code. The theme is divided into the following parts: introduction, institutions’ comparative analyzes of the contract termination and the dissolution of the contract, legislative practice and conclusions. The article also deals with the gaps that are characterized in Georgia’s Civil Code and recommendations for legislators they are required to comply with, and also recommendations to eliminate even terminological gaps existing in Georgia’s Civil Code. The article was targeted at junior lawyers, as well as law interested persons. The work will help them to better understand the essence of the instrument of the completion of the contract and to use it for its intended purpose
Legal aspects of digital diplomacy
Get PDFThe rapid development of digital technologies and the pandemic experience at the international and national levels have made it clear that every day all key areas are undergoing digital transformation. From this perspective, the diplomatic service is no exception. Information and communication technologies have become the tools or means by which, at little or less cost and within a given time frame, a country can ensure the implementation of its foreign policy priorities. Furthermore, the possibilities of the digital world are not limited by borders. Therefore, the purpose of this article is to explore the legal aspects of digital diplomacy, especially in the context of the Vienna Convention on Diplomatic Relations of 1961[1]. The authors of the Convention could not foresee that digital platforms could be created and foreign policy goals could be implemented remotely between representatives of states by using information and communication technologies.
Keywords: Digital Diplomacy, Digital Transformation, Digital Policy
Introduction
In the wake of the development of a modern type of diplomacy - digital diplomacy - we can say that innovative diplomatic services of states require a greater emphasis on the possibilities of information and communication technologies. Digital advances will contribute to developing automated approaches in the decision-making process. It will promote achieving foreign policy goals timely without physical representation in different parts of the world. This process is also important for the improvement of electronic management systems for high-level events.
For the first time in the history of diplomacy, the Danish government appointed a tech ambassador in 2017. A digital ambassador aims to strengthen ties with the IT industry and encourage investment in Denmark from tech companies.[2] The President of the French Republic Emmanuel Macron named David Martinon as an ambassador for digital affairs. The functions of an ambassador include digital governance, international negotiations and the development of cooperation with digital companies.[3] In 2020, Austria appointed its first tech ambassador.[4] Estonia also has an ambassador for cybersecurity. Overall, the number of countries with representatives in this area is increasing.
The development of digital platforms and the establishment of virtual embassies will give ministries of foreign affairs the ability to communicate with different types of audiences. Countries, especially small states, can better present their foreign policy agenda to a wider audience if they properly plan and execute social media campaigns. Furthermore, online ministerial meetings, summits, conferences and forums in bilateral and multilateral formats have been held in response to the pandemic.
In light of the above, based on the Vienna Convention on Diplomatic Relations terms - digital diplomacy and virtual embassy should be defined for states to create modern international legal norms for digital diplomatic relations. This international legal framework will facilitate the development of appropriate national laws for the diplomatic services of states.
DIGITAL FOREIGN POLICY FRAMEWORKS
To develop a digital foreign policy framework, some states have adopted digital foreign policy strategies. Such documents outline countries\u27 approaches to digital issues and digitization concerning their foreign policies. They also include areas of policy priorities regarding digitization and how these priorities are pursued as part of the country\u27s foreign policy.[5] At the same time, the absence of a comprehensive digital foreign policy strategy does not indicate that a country is paying less attention to digital topics in its foreign policy. For example, although Germany does not have a comprehensive digital foreign policy strategy document, ‘cyber foreign policy’ is listed as one of the key German foreign policy topics on the website of its ministry of foreign affairs. Also, Estonia and Canada refer to digital topics in their respective foreign policy strategies.[6]
As for digital foreign policy strategies, in 2020, Switzerland adopted its digital foreign policy strategy 2021-2024. According to this document, a global phenomenon such as digitalisation requires an international set of rules, comprising both legally binding and non-binding instruments. International treaties and customary international law are legally binding instruments. Non-binding instruments include soft law best practices, technical standards and benchmarks.[7]
Switzerland supports capacity-building in the areas of digital technologies and cybersecurity. States must have the necessary capacities to receive benefits from digitalisation. These capacities include both the ability to develop strategies and policies as well as specific technical expertise. In this regard, Switzerland works closely with multilateral partners.[8]
Switzerland as a highly developed state can benefit from the opportunities that digitalisation opens up in foreign markets as well as access to high-quality digital services. Digitalisation is shaping global supply chains, in which the Swiss economy is highly integrated. Simultaneously, it is equally important that personal data and intellectual property are properly protected and that companies and infrastructures are protected against cyberattacks and industrial espionage. Regional approaches to the regulation of the digital space, in particular at a European level, also play a significant role for Switzerland, which has an interest in ensuring that divergent standards do not create barriers to trade. It is essential to put in place transparent structures for the use and forwarding of data to enable the development of innovative applications and increase added value as well.[9]
As one of the world’s most digitised countries, Denmark has a strong foundation for engaging with international technological development. The strategy for Denmark\u27s tech diplomacy focuses efforts towards a democratic and safe technological future. According to the document, there is no question that the tech sector must be regulated – the question is how to regulate it.[10] The tech giants should uphold their part of the social contract. Denmark will help drive forward the global discussion on challenges related to tech companies’ data-driven and algorithmic business models and push for international solutions including on the issue of taxation of the digital economy – an issue where Denmark is actively engaged in negotiations internationally.[11]
Investments in research and development of new technologies are a key competitive parameter that is shifting the geopolitical balance of power. Many countries are using digital tools to advance foreign policy objectives in the grey area between war and peace. Digital platforms connect different actors and have provided an unprecedented number of people globally with the opportunity to express their views. Denmark’s tech diplomacy contributes to domestic discussions with perspectives and knowledge on global trends from the frontier of technology development.[12]
Digital technology is a key issue for French foreign policy and public action as a whole, be it for the success of France\u27s economy in the global competitive sphere or for conditions of stability, security and power on a global scale. The French international digital strategy focuses on three key pillars: governance, the economy and security. It is a reference framework and diplomatic roadmap. This strategy enables France to promote a world which associates freedom and respect for standards.[13]
The Dutch Digitalisation Strategy is a government-wide approach. The Netherlands aims to become a digital frontrunner in Europe – a testbed for companies from all over the world, where they can develop and test new applications. When things change rapidly, as in the digital transformation, it is important to get – and keep – everyone on board. That applies to people in the labour market and to society as a whole. This means that everyone needs to learn the basics at an early age and that people need to keep their skills up-to-date throughout their lives in response to new types of jobs.[14] The digital transformation is changing the Dutch economy and society, but common values remain the same. The government sees opportunities but also understands the concerns that people have about digitalisation. In this regard, the government will continue to preserve values and fundamental rights in the digital age, including safety, security, the rights to privacy and self-determination, fair competition, solidarity and good governance.[15]
In view of the above, states have created a digital foreign policy framework by the adoption of the country\u27s digital foreign policy strategy and digitalisation strategy of the state. These documents define the role of information and communication technologies in implementing foreign policy priorities. They represent roadmaps for the digital transformation of diplomatic services and determine values that should be protected by state bodies in this process. At the same time, digital foreign policy frameworks of states pay special attention to the challenges of digital technologies and define some ways to overcome obstacles including protecting critical information infrastructures from cyberattacks. However, they could not provide a legal understanding of digital diplomacy. States can clarify legal aspects of digital foreign policy based on the development of the international legal framework for digital diplomacy.
PRACTICAL STEPS FOR DIGITAL TRANSFORMATION OF DIPLOMATIC SERVICES
One of the practical steps for the digital transformation of diplomatic services was to establish a new diplomatic position – a tech ambassador or an ambassador for digital affairs and cybersecurity. In the case of Denmark, the tech ambassador has a global mandate and is supported by a team based in Silicon Valley, Copenhagen and Beijing. The presence in Silicon Valley is particularly important for representing Denmark and building bridges to the tech industry. Denmark\u27s tech diplomacy focuses on six defined roles: 1) Representation of the Danish Government and central administration concerning the global tech industry; 2) Collection of knowledge about technological developments and support of innovation, 3) Building coalition with global stakeholders, including other countries, companies, business organizations, multilateral organizations and civil society; 4) Contributing expertise and insight to the Danish public debate on technological development and the influence of the tech industry; 5) Developing Policy through the collection of knowledge and international perspectives on technological development; 6) Promoting Danish tech exports and foreign investment in Denmark.[16]
French digital diplomacy is structured around five major themes: 1) Promoting and supervising the development of innovations and the control of breakthrough technologies, in particular, artificial intelligence; 2) Ensuring the security and international stability of the digital space; 3) Protecting human rights, democratic values and the French language in the digital world; 4) Strengthening the influence and attractiveness of French digital actors; 5) Contributing to Internet governance.[17] The French ambassador for digital affairs focuses on the following functions: advocating broad governance that is faithful to the diversity of actors in the digital sphere (states, private sector, civil societies); supporting the concepts of privacy; advocating fair platforms that are transparent and act responsibly; protecting intellectual property rights without restraining innovation; participating in the development of the European tech ecosystem (supporting industries, education and training, fair taxation rules, funding the innovation, ensuring equal broadband coverage); promoting European standards in international negotiations (Internet governance, trade agreements); supporting the French Tech network, that highlights tech ecosystems throughout the country and in hubs abroad.[18]
After a major cyber-attack in 2007, Estonia prioritized cybersecurity. The NATO Cooperative Cyber Defense Center of Excellence was established with the support of the Alliance in Tallinn one year after the attack.[19] Since 2018, Estonia has had an ambassador at Large for Cyber Diplomacy. Cyber ambassador is supported by the Cyber Diplomacy Department, established in 2019 at the Ministry of Foreign Affairs of Estonia. Safeguarding Estonia\u27s cyberspace depends on the capability to secure critical information systems and a global, open, free, stable and secure cyberspace that is subject to existing international law and norms for responsible state behaviour. Cyber diplomacy is mainly focused on state behaviour in cyberspace and the principles and norms that apply to states in cyberspace. Cyber diplomats also contribute to the fight against international cybercrime and the protection of free and open internet.[20] The United States, Australia, the UK, France and Germany already have named top diplomats in charge of cyber policy.[21]
Based on the analysis of international practice, the functions of ambassadors for digital and cyber affairs may be: 1) Protecting human rights and democratic values in the digital world; 2) Constant communication with information and communication technology and data-oriented companies, including transnational technology companies. As a result of regular communication with them, attracting investments and offering to these companies the opening of representative offices and data centers in the sending state based on international investment agreements concluded at the bilateral level; 3) Representation of their countries in international bilateral and multilateral forums of digital transformation, cybersecurity and participation in determining issues related to digital, cyber policy; 4) Establishing close cooperation with senior diplomats of other countries with a similar mandate, relevant representatives of international organizations, both global and regional levels, including with the UN Secretary-General’s Envoy on technology; 5) Obtaining and analyzing information about international trends in digital transformation and sectoral issues of implementation of digital governance, both in terms of foreign policy and education, health, agriculture, tourism, energy and other priority areas for the country; 6) Proactively offering partners initiatives on developing digital skills and protecting critical information systems in the sending state; 7) Promoting enhancement of the digital capacities in the diplomatic service of the sending state; 8) Preparing a strategic vision for the use of artificial intelligence and the development of automated approaches in the diplomatic missions; 9) Developing the concept of virtual embassies in cooperation with host states and technology companies; 10) Participating in international forums and other activities with the focus on defining cybersecurity issues and strengthening cyber capacities.
In terms of the digital transformation of diplomatic services, artificial intelligence can play a significant role, especially in cases of analyzing big data timely. Artificial intelligence is a real instrument to provide automatic routine tasks in the field of foreign policy. More precisely, robots as re-programmable multi-purpose devices designed for the handling of materials and tools for the processing of parts or specialized devices utilizing varying programmed movements to complete a variety of tasks.[22] Regardless of opportunities, artificial intelligence may pose some risks and challenges. Because of the nature of AI ethical and legal questions can be pondered especially in terms of protecting human rights. The EU has a clear vision of the development of the legal framework for AI. Particularly, the EU AI Act proposed a regulatory framework for Artificial Intelligence. It focuses on the following 4 specific objectives: 1) ensure that AI systems placed on the Union market and used are safe and respect existing law on fundamental rights and Union values; 2) ensure legal certainty to facilitate investment and innovation in AI; 3) enhance governance and effective enforcement of existing law on fundamental rights and safety requirements applicable to AI systems; 4) facilitate the development of a single market for lawful, safe and trustworthy AI applications and prevent market fragmentation.[23] It is essential to take into consideration that AI applications should be provided with objective information. Based on such information, robots would be able to make the right conclusions and assist diplomats. Chatbots are integral parts of the digital world and they can effectively perform automatic routine tasks for various purposes.
CONCLUSION
The development of the legal framework for digital diplomacy will generally facilitate the achievement of modern foreign policy goals more effectively and timely. Furthermore, it will enable states to obtain new functions in modern international politics. Nowadays digital components are significant elements of international politics. There are discussions of the necessity to build alliances around digital affairs. Therefore, countries need their representatives - ambassadors for digital affairs to be involved in defining priorities of international digital policy. They will contribute to creating new opportunities to respond to the demands of digital reality and determining states’ new functions in the international digital order.
In addition, ministries of foreign affairs will have continuous communication with both external and internal audiences by using automated approaches, including "chatbots". Developing the concept of virtual embassies and defining related legal issues at the international level will allow states, especially small states, to establish digital diplomatic relations with any country in the world through appropriate secure programs and applications. To achieve this goal, amendments should be made to the Vienna Convention on Diplomatic Relations of 1961 which contributes to the development of diplomatic relations among nations, irrespective of their differing constitutional and social systems and creates international legal grounds for this.
Overall, in the future, the international digital system will further change traditional approaches to diplomatic services and illustrate the effectiveness of digital tools, especially in terms of improving digital rapid response capabilities.
Bibliography
Andjelkovic, K., Hone, K., Perucica, N., Digital Foreign Policy. <https://www.diplomacy.edu/topics/digital-foreign-policy/>[Last seen: 01.02.2023].
Artificial Intelligence Act. (2021). Regulation of the European Parliament and of the Council.
Cyber Diplomacy, Ministry of Foreign Affairs of the Republic of Estonia. <https://www.vm.ee/en/international-law-cyber-diplomacy/cyber-diplomacy>[Last seen: 01.02.2023].
Digital Foreign Policy Strategy, (2020). The Federal Council, Switzerland.
Dutch Digitalization Strategy. <https://www.nederlanddigitaal.nl/english/dutch-digitalisation-strategy>[Last seen: 01.02.2023].
France Diplomacy. <https://www.diplomatie.gouv.fr/en/french-foreign-policy/digital-diplomacy/news/article/2019-annual-report-of-the-ambassador-for-digital-affairs>[Last seen: 01.02.2023].
France’s International Digital Strategy. <https://www.diplomatie.gouv.fr/en/french-foreign-policy/digital-diplomacy/france-s-international-digital-strategy/>[Last seen: 01.02.2023].
France unveiled its international strategy for digital affairs and appointed a dedicated ambassador. <https://ife.ee/en/international-strategy-for-digital/>[Last seen: 01.02.2023].
Hussein Dia, (2018). Tech + Diplomacy = TechPlomacy; Cities Drive a New Era of Digital Policy and Innovation. <https://www.indrastra.com/2018/01/tech-diplomacy-cities-new-era-digital-policy-innovation-004-01-2018-0036.html> [Last seen: 01.02.2023].
Jarota, M., (2021). Artificial Intelligence and Robotization in the EU – Should We Change OHS Law? Journal of Occupational Medicine and Toxicology.
Sanchez Alejandro W., (2018). The Rise of the Tech Ambassador. <https://www.diplomaticourier.com/posts/the-rise-of-the-tech-ambassador> [Last seen: 01.02.2023].
Strategy for Denmark’s Tech Diplomacy 2021-2023, (2021)., Ministry of Foreign Affairs of Denmark.
Stupp, C., (2018). Estonia’s First Cyber Ambassador Seeks to Improve Global Cyber Defense. <https://www.wsj.com/articles/estonias-first-cyber-ambassador-seeks-to-improve-global-cyber-defense 1536358734>[Last seen: 01.02.2023].
Tech Diplomacy. <https://www.open-austria.com/tech-diplomacy>[Last seen: 01.02.2023].
Vienna Convention on Diplomatic Relations, (1961). United Nations, Treaty Series, vol. 500.
Footnotes
[1] Vienna Convention on Diplomatic Relations, (1961). United Nations, Treaty Series, vol. 500, p.2.
[2] Sanchez Alejandro W., (2018). The Rise of the Tech Ambassador. <https://www.diplomaticourier.com/posts/the-rise-of-the-tech-ambassador> [Last seen: 01.02.2023].
[3] Hussein Dia, (2018). Tech + Diplomacy = TechPlomacy; Cities Drive a New Era of Digital Policy and Innovation. <https://www.indrastra.com/2018/01/tech-diplomacy-cities-new-era-digital-policy-innovation-004-01-2018-0036.html> [Last seen: 01.02.2023].
[4] Tech Diplomacy. <https://www.open-austria.com/tech-diplomacy>[Last seen: 01.02.2023].
[5] Andjelkovic, K., Hone, K., Perucica, N., Digital Foreign Policy. <https://www.diplomacy.edu/topics/digital-foreign-policy/>[Last seen: 01.02.2023].
[6] Id.
[7] Digital Foreign Policy Str
სამართალშეგნების ჩამოყალიბება და მისი დეფორმაციული გამოვლინებები
No full textInterpersonal relations are regulated by legal norms, which pro- actively and reactively control what a citizen should and should not do. Knowledge of the law and its norms contributes to the formation of law awareness and consciousness, expressed in human social attitudes towards order and law. In response to violating the rule of law, society applies reactive social control, which takes the form of punishment and whose purpose is to restore justice, prevent new crimes, and resocialize the offender. There is a great abundance of norms and various punishments in society; however, despite this, crime has always been and most likely will continue to be an integral part of society, significantly reducing people\u27s well-being. In the modern world, the formation of teenagers\u27 law consciousness as their criminal behavior regulator deserves special attention. Law consciousness means understanding the existing norms and forming the necessary practical skills for implementation. Without it, societys future welfare is put into doubt, and the risk of committing a crime increases significantly. The research was interested in the factors contributing to law consciousness formation and/or its de- formative expressions. Identifying factors influencing the formation or non-formation of law consciousness allowed us to make recommendations for its formation, thereby contributing to crime prevention and increasing civil well-being.
Keywords: social control, law consciousness, crime
Introduction
A person has to make different decisions every day, gets into a strange situation, and has little time to solve the problem, which adds an emotional tone to this process. At this time, some take rational steps while others act impulsively. The behavior of both of them is based on personal traits, which include the uniqueness of their perceptions of the situation and the behavioral manifestations of every person. Despite the uniqueness of a person and the diversity of the environment responsible for its formation, the amount of response to a foreign, stressful environment significantly depends on the quality and experience of general and legal education, which is a kind of resource for solving the problem. [1]
Society creates norms to promote, control, and protect human interests. From the perspective of the law\u27s protective role, the law is an effective tool for ensuring the protection of potential victims. [2] Legal norms are an important achievement of society\u27s civilization. The main goal of state governance is for its people to understand the law, the rule of law, and its importance. [3]
The culture of law in the state determines the quality of society\u27s life and represents the level of development achieved by legal actions, realities, and opportunities. The feeling of freedom, the guarantee of security, and the legal responsibility in society. law consciousness is a part of legal culture; however, legal culture is more general; it reflects the prevailing reality in society. law consciousness is a dynamic process; it involves the internalization of the meaning of the prevailing laws and includes the psychological understanding of the content of the law. As for the legal culture, it is more conservative, consists only of the facts of public law enforcement, and does not involve individual cognitions, which form the public\u27s understanding of this law.[4]
The law consciousness of children and adolescents is a challenge for modern society because the formation of a culture of justice, a sense of public safety, and the level of public prosperity and success depend on it.[5] law consciousness is a regulator of human behavior and a prerequisite for understanding rights and their enforcement. Deformation of law consciousness, a crime puts the safety of society at risk, and to deal with it, there are three levels of crime prevention in society.[6]
In the modern world, against the backdrop of political or social changes, there is a great difference in values between the youth and the older generations. This is especially noticeable in Post-Soviet countries. Taking care of the next generation is the main task for the development of society because their socialization and their values are vulnerable to the current processes in the society. In the process of taking care of the future generation, the state and society should ensure its correct socialization, legal upbringing, formation of legal awareness and law consciousness. Which can only be achieved by planning and implementing a successful educational policy.[7]
The interest of the research is the formation of legal consciousness and the identification of factors influencing its lack. In order to satisfy the interest, a theoretical discussion of the circumstances necessary for social control, its manifestation, and functioning, and an analysis of the existing literature on the topic of the circumstances affecting the formation of legal consciousness were planned. As a result, the probable causes of the deforming manifestations of law consciousness were determined, and recommendations were developed for the formation of law consciousness.
Social Control
Lambert and his colleagues (Lambert et al., 2011) [8] point out that society uses various forms of control to regulate the observance of social norms. There are formal and informal norms, the violation of which provides for various punishments. Control can be proactive or reactive: proactive control is when the implementation or non-implementation of behavior is controlled, and reactive control is when a response is made to already implemented behavior. It can be both a negative and a positive sanction. Society goes both ways, actively monitoring its members to ensure that the norm is not violated (proactive control), admonishing those who do not or no longer violate the norm, and punishing those who do (positive and negative manifestations of reactive control). Encouragement, like punishment, can be both formal and informal. e.g., reward and penalty are forms of formal control, and good reputation in society, thanks, smiles, and stigmatization are forms of disclosure of informal control.
Usually, the forms of social control used by the state are mostly reactive, including: legal feedback on violations; legal supervision; public opinion management; and employment restrictions. [9]
For the proactive form of social control, is mostly responsible the society, in which the child grows up, goes through the process of socialization and acquires the forms of right and wrong behaviors. It is necessary for a person to believe in the necessity of these norms and to internalize them, which implies the conformity of attitude formation and behavior. In addition to the forms of pro- and reactive control implemented by the state, the behavior of public figures is important. Their vision is very important, which create public opinion and, in turn, pro- and reactively control trends in society.[10]
Public movements, Universities and educational institutions pro - and reactively shape social opinion and behavior. In this case, the university, "in como parentis," like parents, becomes responsible for the socialization of the child.[11] Society needs a norm for formal and informal control. By which the society imposes an obligation or duty on the member to fulfill them. To be effective, the norm should be:
Timely - its violation must be responded to in a timely manner;[12]
An adequate - response to its violation should be related to the type of violation;[13]
And unmistakable, inevitable - response to its violation must be guaranteed.[14]
All this helps society members to develop law consciousness, to establish positive relations between society members, and by promoting the full-fledged development of the next generation, it appears as a significant determinant of society\u27s well-being.[15] [16]
The rule of law as a guarantor of security
In order to ensure social control, people criminalized undesirable actions, created norms, and, to ensure compliance with those norms, established punishments, which at different times had different theoretical explanations and objectives. The Criminal Code sets out restrictions on certain behaviors, the violation of which is considered a crime and leads to punishment or the imposition of other criminal legal measures.[17] Therefore, criminal law is a body of law that prescribes certain forms of conduct, criminalizes undesirable actions (so as not to harm public safety and welfare), and prescribes appropriate forms of punishment in response to prohibited conduct.[18]
The use of punishment is justified for two reasons. The first is that criminal law focuses on crime prevention, which it does by imposing punishment in response to crime in order to prevent future unwanted behavior or harm. The second explanation connects the punishment of an unfinished, fruitless crime (an attempted crime) with moral guilt and believes that since the person wanted to carry out the prohibited behavior, regardless of the unsuccessful result, he still deserves to be punished.[19]
Punishment is an inseparable institution of every social system; however, it is used by society on different grounds and in different ways. The correct understanding of the essence of punishment is related to the legitimation of criminal law and implies the imposition of certain restrictions by the state, their implementation, and their justification. [20]
The theoretical explanation of punishment and the focus of the individual and society in the past and future determines the goals of punishment and the orientation towards which the ratio of punishment is justified. The goal of restorative justice in punishment, like the absolute theory, only involves a reaction to past actions and emphasizes the supremacy of law and social norms and the need to uphold them. Crime prevention sees punishment in a relatively broad perspective and aims to prevent new crimes, which shifts from focusing on the past to the future protection of society and thus becomes more humane and more acceptable to the society. Finally, the resocialization/rehabilitatiion goal of sentencing summarizes restorative and preventive justice. Because it implies the return of a non-resocialized (criminal) person to society as a rehabilitated or resocialized member, thereby ensuring the observance of the law, the formation of law consciousness, the prevention of new crimes, and, as a result, the protection of society. [21]
law consciousness and forms of its deformative expresssion
law consciousness is a form of social awareness and represents individuals\u27 subjective perception of the law, their emotions, and their attitude towards the content of the law. Public attitudes shape individual law consciousness just as individual law consciousness determines the understanding and observance of public law.[22]
According to Kravchenko (Kravchenko, 2021), law consciousness is not only understanding the content of the law and having legal values but also understanding the meaning of this law, which is the axis of legal awareness. Although individual law consciousness does not directly shape the public\u27s understanding of law, it significantly regulates the psychological factors of legal relations and human behavior. It is a necessary prerequisite for human involvement in social and legal reality and ensures the formation of social norms, social experiences, and the culture of law. This, in turn, creates a civil society and is a necessary prerequisite for the development of society.[23]
Deformation of law consciousness is a social phenomenon that, contrary to the positive understanding of law, implies a negative and/or nihilistic attitude toward existing norms in society, which often manifests itself in criminal behavior. The deformation of law consciousness and its manifestations are related to a lack of legal knowledge and social responsibility, which are due to a low level of education. It is legal education that is responsible for understanding the importance of norms and forming public discipline and public law culture.[24]
According to Khasanovich (2021) [25], there are several ways for crime prevention: the formation of law consciousness and legal culture, which are carried out by offering and engaging in social activities; the influence of public and civil persons, whose opinions are authoritative and the correct inform of the society, share legal processes and increase legal literacy among teenagers.
Formation of law consciousness
According to Chua and Engel (Chua and Engel, 2019), three things influence the formation of a teenager\u27s legal consciousness: worldview—their social relations in society, understanding of a person\u27s social role, and the level of involvement in public life; Perceptions are their interpretation of current events in society, about justice, success, goodness, and well-being, and the conclusions they draw, which derive from the spectrum of their worldview and the events in the environment, their interpretation of the information they perceive.[26]
Jurisprudence among teenagers has several functions: regulatory, which determines their behavior; teleological, which determines the goals of human behavior; transactional, which forms motives; and practeological, which is the expression of existing attitudes in relation to the law. Among them, the teleological function plays a special role, during which the target behaviors of the adolescent are identified. It, in turn, is divided into cognitive and behavioral functions and consists of logical, emotional, and behavioral behaviors. [27]
Jurisprudence among teenagers has several functions: regulatory, which determines their behavior; teleological, which determines the goals of human behavior; transactional, which forms motives; and practeological, which is the expression of existing attitudes in relation to the law. Among them, the teleological function plays a special role, during which the target behaviors of the adolescent are identified. It, in turn, is divided into cognitive and behavioral functions and consists of logical, emotional, and behavioral behaviors. [27
Kravchenko (Kravchenko, 2021) talks about two ways of forming law consciousness: general and separate. In a general sense, the socialization of law and the formation of law consciousness serve common goals, and a separate way of forming law consciousness proceeds independently of the general socialization process; however, it serves the general goals of general socialization (for example, when a child learns that lying is bad and this helps him not to become a liar). [28]
According to Tereschenko and his colleagues (Tereschenko et al., 2020) the more law-aware a citizen is, the more he strives to get an education. They consider the level of education as a prerequisite for the formation of law consciousness and also, education is as an important determining factor of law consciousness. Therefore, the authors conclude State and public figures should put more emphasis on legal education.[29]
In order to form a sense of law in a society, it is necessary to establish the supremacy of the law through cooperation between the state and the society, the correct understanding of the law, and the conclusion of the social contract. In order for the law to be supreme and for the members of society to believe in the necessity of its protection, several factors of the existence of the norm must be guaranteed, namely: the law must be clear so that its social meaning can be easily perceived; the law must be applicable and focused on human protection; protection of the law must be ensured; and retaliatory punishment for its violation must be guaranteed. Compliance with the law should not cause discomfort but rather a feeling of security, and finally, a necessary prerequisite for the formation of law consciousness is the raising of legal awareness at all levels of education, especially in the adolescent age group.[30]
Summary
Based on the reviewed literature, social control is seen as a prerequisite for societal well-being. Social control can be pro-active, which involves identifying injustices to ensure the safety of its members and teaching the next generation, or reactive, when punishment is applied in response to an established injustice. During proactive control, at the stage of establishing a norm in society, in order to ensure the protection of this norm, it is necessary that the norm be effective, necessary, and applicable, and that the importance of its protection is understood. At the stage of reactive social control, the punishment imposed on injustice must be unmistakable, timely, and adequate.
In the implementation of proactive social control, it is common for adults to try to implement imposed injustice. One of the reasons for this is low education, the ineffectiveness of the norm, and, in general, a lack of legal awareness. At this time, it is the responsibility of the state and society to take care of the teenager, to promote his proper socialization, and to promote the formation of the legal system that has not yet been formed. Even if proactive control and support failed to justify legal injustice and it was carried out, the state applies a form of reactive control and imposes punishment, the goal of which is to restore justice, prevent crime, and resocialize the offender. This can be achieved through the formation of his law consciousness.
Conclusion/Recommendation
By analyzing the mentioned theoretical material, we research wanted to identify the factors affecting the lack of law consciousness. Based on the reviewed literature, research concludes that this factors are:
when the need to observe the norm is not clear;
when the norm is ineffective and/or unusable;
When the punishment imposed for breaking the norm is not timely, accurate and adequate;
When there are no civil movements, authoritative public and private individuals, and educational institutions in the society, who emphasize the need to protect the law in their activities.
Based on the analysis of the literature, the results of the study allow for the following recommendations:
educational priorities of law should be determined at the state and public level (raising legal awareness and popularizing law);
to emphasize the importance of its protection during the development of the norm;
The punishment imposed in response to the violation of the norm must be unmistakable, timely and adequate.
Bibliography
Georgian language literature
Dvalidze I. (2013), General part of criminal law, punishment and other criminal consequences of crime, Meridian, Tbilisi (In Georgian)
Lekveishvili M., Todua N., Mamulashvili G., (2011), Private Part of Criminal Law, Meridian, Tbilisi (In Georgian)
Foreign language literature
Cable Sh., (2019) Social Movements and Social Control, The Handbook of Social Control, 1st By Deflem M., John Wiley & Sons. Ltd;
Chua L., J., Engel D., M., (2019), Legal Consciousness Reconsidered, Annual Review of Law and Social Science, Vol. 15;
Dehnad V., (2017), A Proactive Model to Control Reactive Behaviors, World Journal of Education, 7 (4);
Hakim M., H., (2016), Legal Protection Versus Legal Consciousness (The Changing Perspective in Law and Society Research, Al-Bankari, HLM, 15(1);
Hallevy G.( 2013) The Right to Be Punished, Springer-Verlag Berlin Heidelberg , DOI: 1007/978-3-642-32388-1
Keiler J., Panzavolta M., Roef D., (2014 ) Hage J., Akkermans B., (eds.) Introduction To Law, Springer International Publishing Seitzerland
Khasanovich A., SH. (2021), The Role of Legal Consciousness and Legal Culture in Official Prevention, Web of Scienrist: International Scientific research Journal, 2 (5);
Kolber A., J., (2013), Against Proportional Punishment, Vanderbilt Law Review, 66 (4)
Kravchenko O., V., (2021), Legal Consciousness and Forms of its Deformation, Journal of Legal, Ethical and Regulatory Issues, 24 (1);
Lambert E., Karuppannan J., Jiang Sh., Pasupuleti S., Bhirarasetty J., (2011), Correlates of Formal and Informal Social Control on Crime Prevention: An Exploratory Study among University Students, Andhra Pradesh, India, Asian Journal of Criminology, 7 (3), 1007/s11417-011-9108-9;
Mischenko E., V., Kriskovets T., N., Lopanova A., P., Mushanova I., V., Inalkaeva K., S., Shulga T., I., Ivanova A., V., (2021), Student Youth Legal Consciousness: Formation Problems and Prospects, Current context of education and psychology in Europe and Asia,9(3), http://dx.doi.org/10.20511/pyr2021.v9nSPE3.1135
Pevtsova E., (2013), The functions of legal awareness of children and young people, Acta Universitatis George Bacovia. Juridica, 2 (2);
Tereshchenko E., A., Kovalev V., V., Trofimo M., S., Zasseev D., A., (2020), Legal Consciousness as a Facor Promoting The Achievement of Educational Objectives and the Realization of The Right to Education by Individuals and Collectives, Rev. Tempos Espaços Educ., 13(32), http://dx.doi.org/10.20952/revtee.v13i32.14690 ;
Yi L., Li L., (2022), Effective Strategies to Promote the Cultivation of Public Legal Consciousness from the Perspective of Social Psychology, Journal of Environmental and Public Health, vol.22, https://doi.org/10.1155/2022/8275938
Web Source
Banks E., (2018), The Purpose of Punishment, Criminal Justice Ethics, Sage Publications, com, https://www.sagepub.com/sites/default/files/upm-binaries/5144_Banks_II_Proof_Chapter_5.pdf, (Last seen 25.02, 2023);
Shevchenko A., Y., Kudin S., V., Loshchykhin O., M., Fatkhudinov V., H., (2021), The Principle of Inevitability and the Institution of Exeption From Legal Liability: Aspects of the Relationship; https://www.periodicojs.com.br/index.php/gei/article/download/130/89/419,(Last seen : 29.03.2022)
Foo
ზიანის მნიშვნელობა – დანაშაულებრივი ქმედება ხე-ბუჩქნარის უკანონოდ გაჩეხვის შემადგენლობაში
No full textThe paper deals with the criminal act provided for in Article 303 of the Criminal Code of Georgia for unlawful felling of trees and bushes, the amount of damage caused to the environment, the procedure for its calculation and the significance of the damage. It will be discussed what constitutes and how the essential component of the disposition of the Article – substantial damage is calculated. Where is the line drawn between criminal and administrative responsibility? What kind of damage can be caused by the illegal cutting of trees and shrubs, and what are their implications for investigations, prosecutions, and courts? The paper is novel since other scientific works do not identify the subject of our study, and there are few studies of damage in textbooks or comments to the private part of the Criminal Code. The damage caused to the environment differs from the damage imposed for crimes with other material components provided by the criminal law code; its amount decides the basis of administrative or criminal law in a specific case. Therefore, the scientific study of the issue has practical significance. The scientific paper aims to clarify the essential component for the composition of Article 303 of the Civil Code – the study of the issue of compensation for damage and to create a correct understanding of the problematic issues raised around it.
Keywords: environment, damage, illegal logging, trees, and shrubs.
Introduction
Among the world’s most important tasks, special priority is given to environmental protection. Human impact on nature is increasing daily, especially today, in the context of continuous hostilities in the region, causing dire ecological consequences. The intensive human impact on nature manifests in the irrational consumption of natural resources and their illegal extraction and destruction. The explosion of the “Kakhovka HPP” dam in Ukraine, which was accompanied by irreversible processes, namely the destruction of water, soil, vegetation, and animals, can be considered as a face of large-scale destruction of nature, which was assessed as ecocide.[1]
States and their leaders should assume more responsibility as soon as possible to preserve land, vegetation, and water in their natural state because this is the only way left, shortly, to maintain a sustainable climate and, therefore, to avoid the ecological disasters that threaten the world in the form of global warming. To this end, the researchers have developed both a short-term and a long-term action plan, which includes a number of preventive, protective, and restoration measures.[2]
Harmonization of environmental protection and rational use of nature with ecological, economic, and social interests of the state and society is a priority for each state. However, the problem of environmental protection has long gone beyond the borders of a particular country, and today, it is presented as an international challenge. All democratic states aspire to engage in international legal protection of the environment and preserve nature, thereby maintaining a decent quality of life in the world.
In this regard, Georgia pays special attention to synchronising criminal and other legislation with international legal norms. In the Criminal Code of Georgia, a separate Title is given to a crime against the rules of environmental protection and use of natural resources.[3] The Title consists of one chapter and 26 Articles.[4] We agree with the opinion of the authors that the subject of the crime against the rules of environmental protection and use of natural resources are objects of natural origin and existing in the environment, which were created naturally and, accordingly, no human or material resources were spent. For example, they are air, land, water, plants, animals, and others.[5] At the same time, we note that in addition to natural resources, the subject of crimes against the rules of environmental protection and the use of natural resources can be such resources on the territory of municipalities in planting, growing, developing, cultivating of which human and material resources were expended (e.g., parks, windbreaks, gardens, etc.).[6]
The scientific work discusses a specific criminal act from the part of crimes against the rule of environmental protection, a mandatory component of the disposition on the illegal felling[7] of trees and shrubs: the essence, amount, method of calculation and significance of causing substantial damage.
This Article has undergone many changes over the years. Especially noteworthy is the cascade of changes implemented since 2018, which was caused, on the one hand, by the upward trend in crimes against the environment in 2017,[8] and, on the other hand, by considering the amount of damage caused to the environment.[9]
The work also considers whether the legislative changes made in the Article had positive and negative consequences. Have the new rules ensured a reduction in environmental damage, have they contributed to the process of sustainable forest development, and have they reduced cases of illegal forest use? In the study, special attention is paid to the rules for calculating damage, the type, amount of damage and its compensation, as well as its significance in the criminal case.
Legislative Changes Related to the Article
In the current Criminal Law Code, the Article of a criminal act for illegal cutting down of trees and bushes has undergone four legislative changes. Initially, the illegal felling of trees and shrubs was punishable under criminal law in case of causing significant damage through negligence;[10] after the amendment, the word “negligence” was removed from the disposition of the Article, and accordingly, the subjective side of the crime under consideration was defined as an intentional crime. Moreover, a number of authors partially criticize this change and believe that with this change, it will no longer be possible to initiate criminal prosecution under Article 303 of the Civil Code against those who illegally cut down trees and shrubs and caused significant damage through negligence.[11] It should be noted that logging is an active and intentional action, when the person(s) by prior intention, with the appropriate tools or equipment, arbitrarily goes to cut down a tree or bush. They know in advance that they do not have the proper permission/license to cut down trees and that logging any tree or bush entails some kind of damage, which we will discuss in more detail in the next part of the paper. Accordingly, we believe that the subjective side of the corpus delicti (composition of the crime), which is expressed in the premeditation, does not allow for the possibility of damage due to negligence. We agree with the opinion of the authors that this change was justified and necessary since the original version of the disposition meant criminal liability in case of causing significant damage through negligence as a result of illegal felling of trees and shrubs, and accordingly, excluded the implementation of the norm in the conditions of damage caused by an intentional act.[12]
In connection with the amendments to the legislation in 2018, the disposition and structure of the Article have been substantially changed. In particular, for the qualification of the action, the amount of damage caused as a result of unlawful logging of trees and shrubs did not matter in cases where the illegal felling will be committed by a person held administratively liable for: illegal cutting and damage to woody plants within the borders of protected areas and their territorial-functional zones,[13] re-manufacturing of timber in the territory of the state forest without the relevant documents stipulated by the legislation of Georgia,[14] re-damage, arbitrary cutting and destruction of green plants in the territory within administrative borders of the municipality (except the privately owned territory)[15] and re-damage, unauthorized felling and/or removal of green plants within administrative borders of Tbilisi Municipality (including damage or arbitrarily felling of green spaces in such a way that it is impossible to determine the type of damaged or arbitrarily cut green plants), on the facts of violation of the rules of maintenance and restoration of green plants.[16] With the same change, Parts Three and Four were added to the Article, according to which illegal felling of trees and shrubs listed in the Red Book of Georgia, on the lands of the state forest fund or protected areas, [17]has been regulated as a criminal offense toward a person who is an administratively charged with the fact of illegal felling and damage to woody plants within the established boundaries of specially protected areas and who has repeatedly committed the specified action.[18] It should be noted that the sanction imposed under Part 4 of the Article classified it as a serious crime.[19]
In 2020, the third Part of the Article was changed, and in the disposition, the phrase “on the lands of the State forest fund or protected areas” was replaced by the sentence “in the forest or protected area of Georgia”.[20]
In 2021, the first Part of the Article was amended,[21] and the fact of repeated illegal felling of trees and shrubs in the windbreak (field protection) strip was added to the list of administrative violations.[22]
Over the years, the main goal of the changes implemented in the Article was to strengthen the fight against the facts of illegal logging and to minimize the mentioned criminal actions. But the statistics show that the legislative changes implemented to achieve this goal have not been effective, and crime has been declining over the years, although the indicator remains noteworthy.[23]
The Essence and Significance of Damage in the Disposition of the Article
Up to 40% of the territory of Georgia is covered with forest,[24] therefore, it should be said that it is more accessible than other natural resources spread in Georgia, and due to its scale, it is a less protected good. Considering that wood can be used for many purposes, and it is more profitable to obtain it with lower costs, unfortunately, unlawful logging of trees and shrubs in Georgia has become a widespread crime.
Illegal felling of trees and bushes is a criminal act with a material component, which implies the necessity of a material result at the time of its commission, and this means harming the legal good (for the given Article, for the environment).[25] The subject of the crime is a person who has reached the age of 14, the subjective side of the crime is expressed in the intention, and the commission of this crime through negligence is excluded since the Article does not have a proper clause.[26] The object of the crime is any tree or shrub for which a special license or permit is required to be cut, while the objective side implies an active action aimed at cutting a tree or bush, and it does not matter how it will be carried out (e.g., with axe, pickaxe, electric saw or other). A prerequisite for the qualification of the action is the confirmation of the fact of damage and the calculation of the amount of this damage. In the Criminal Code of Georgia, for the purposes of a particular chapter, the amounts of damages are regulated in the notes of the Article itself. For example, for an economic criminal Chapter, significant damage is considered when the value of an item exceeds 150 GEL and a large amount – over 10,000 GEL.[27] For money laundering, an income from thirty thousand to fifty thousand GEL is considered a large amount, and income over fifty thousand GEL is considered a particularly large amount.[28] For tax evasion, a large amount is considered when the amount of tax to be paid exceeds one hundred thousand GEL, and especially a large amount when the amount exceeds one hundred and fifty thousand GEL.[29] There is no similar legal clause for the criminal Chapter against the environment. It should be noted that in 2011, with the amendments made to the Criminal Code, for Chapter purposes, the amount of significant damage is determined in accordance with the subordinate normative act of the Government of Georgia.[30] Moreover, in the event of a crime stipulated by Part One of Article 303 of the Civil Code, a person would not be held criminally liable If, within 45 calendar days from the date of receipt of the claim for compensation for environmental damage, he would pay the amount due or within the same period, an agreement regarding the damage to the environment would be signed with him.[31] This entry of the law was cancelled in 2013.[32] Accordingly, the Criminal Code, for this Article, did not clarify what amount would be considered significant damage. Unauthorized felling of even one tree or bush will certainly cause some damage, but how should we determine and distinguish whether the specified damage is significant or not, that is, whether it constitutes the basis for criminal liability, and whether it is insignificant, that is, whether it represents the basis of administrative responsibility. Some authors believed that the court should decide the issue of significant damage.[33] We cannot agree with this opinion since, before the court’s decision, to initiate criminal prosecution against a person for the composition of the crime and, accordingly, for the prosecutor to issue a decision to charge the person as an accused, a document on determining/confirming the damage is decisive evidence. The burden of proof is on the accuser, as well as the duty to substantiate the admissibility of evidence of the accused’s side and the inadmissibility of evidence of the defense.[34] Logically, the question arises: based on which document the damage caused by the illegal felling of trees and shrubs was and is being carried out today in Georgia. The mentioned subordinate normative act has been changed many times over the years.[35] The amount and significance of substantial environmental damage was determined by the current normative act. The value of the damage is determined by the illegal felling of woody plants and/or shrubs, which leads to the cessation of their growth and vital function. In addition, the specified action, which is manifested in the illegal cutting, uprooting, or destruction of the plant, should cause damage to the environment for 1000 GEL or more.[36] To determine the amount of damage, the amount of illegally felled trees and shrubs, the type of wood, its location and others are important.[37] If, as a result of the calculation, the amount of damage is found to be less than 1000 GEL, in such a case, the person will bear only administrative responsibility.
As we mentioned above, the amount of damage does not matter in cases where the person under administrative penalty commits the illegal cutting of trees and bushes again. Although the damage may not amount to 1000 GEL, a criminal case will be initiated against the person since such a legal clause exists in the disposition of the Article.
The crime under Article 303 of the Criminal Code of Georgia falls under the investigative jurisdiction of an investigator of the Ministry of Internal Affairs of Georgia.[38] The calculation of environmental damage is not within the investigator’s competence. In a fact of illegal felling of trees and shrubs is discovered, appropriate calculations are made by the State Sub-Agency Department of the Ministry of Environmental Protection and Agriculture of Georgia – Department of Environmental Supervision and/or employees of the National Forestry Agency of the same ministry. A written document on the calculation of damages is attached to the criminal case as evidence and represents an important act for a specific case, which confirms the amount of damage and that this damage is significant.
The issue of compensation for damage to the environment, of course, does not change the criminal qualification of the action, but, as a rule, it is considered by the court when making the final decision on the case.
Conclusion
Summing up, it should be noted that the necessary circumstance of the offense of illegal felling of trees and shrubs – the calculation of damage, is carried out by a subordinate normative act approved by the government decree. Damages are calculated by an authorized person of the Ministry of Environmental Protection and Agriculture of Georgia within the scope of his/her competence and in the case of referral by investigative bodies. The amount of significant environmental damage is defined as 1000 GEL or more. Accordingly, if the amount of damage is only 999 GEL or less, the criminal case and/or criminal prosecution are not initiated and/or terminated against the person. In addition, an administrative fine will be imposed on the said person. In contrast to the clauses imposed on other categories of crimes, the Criminal Code does not impose a specific amount of damage in the event of illegal felling of trees and shrubs, which often creates uncertainty among those concerned. We believe that to avoid uncertainty, the amount of damage should be clearly regulated in the Criminal Code for the Chapter and/or specific Articles of the crime against the environment.
In addition to the above, to effectively combat illegal logging and to prevent violations, it is advisable at the legislative level to impose such additional obligations for those convicted under the mentioned Article, along with the main type of punishment, such as, for example, the planting and taking care of trees in proportion to the damage caused to the environment.
Bibliography
Dvaladze I., Tumanishvili G., Gvenetadze N., Case Study Method in Criminal Law, Tb., 2015.
Urushadze T., Loria V., Ecological Law, Tb., 1999.
Lekveishvili M., Mamulashvili G., Todua N., Mumladze D., Private Part of Criminal Law, first edition, (book II), Tb., 2005.
Lekveishvili M., Todua N., Mamulashvili G., Private Part of Criminal Law, fifth edition, Tb., 2017.
Turava M., Criminal Law. Overview of the General Section. With Attached Test Samples and Case Study Method, eighth edition, Tb., 2010.
Hallam J, and others, Collapse of critical Ukrainian dam sparks region-wide evacuations. Here’s what we know, 2023, <https://edition.cnn.com/2023/06/06/europe/ukraine-nova-kakhovka-dam-breach-intl-hnk/index.html> [Last accessed: 15.06.2023];
Dinerstein E. and others, A Global Deal for Nature: Guiding principles, milestones, and targets, SCIENCE ADVANCES, 2019, Vol 5, Issue 4, <https://www.science.org/doi/10.1126/sciadv.aaw2869> [Last accessed: 06.23];
Legislative Acts
The Criminal Code of Georgia, 1999.
Code of Administrative Offenses of Georgia, 1984.
Law of Georgia on Amendments to the Criminal Code of Georgia, 2020, No 5963-ss.
Law of Georgia on Amendments to the Criminal Code of Georgia, 2021, No. 971-VIms-Xmp.
Law of Georgia on Amendments to the Criminal Code of Georgia, 2013, 472-rs.
Criminal Procedure Code of Georgia, 2009
Calculation and Compensation of Damages Caused to the State Forest Fund as a Result of Illegal Forest Use. Approvedby the Order 99 of 2002 of the Minister of Environmental and Natural Resources Protection of Georgia.
Methodology for Calculating Damage to Environment. Approvedby the Order 538 of 2006 of the Minister of Environmental and Natural Resources Protection of Georgia.
Methodology for Determination (Calculation) Damage to Environment. Approvedby the Order No. 2 of 2011 of the Minister of Environmental Protection and Natural Resources of Georgia.
Methodology for Determination (Calculation) Damage to Environment. Approvedby the Order 54 of 2014 of Georgian Government.
On Determining Investigative and Territorial Investigative Jurisdiction of Criminal Cases, Order 3 of 2019 of the General Prosecutor of Georgia, Appendix, Paragraph No.1.
Electronic Resources
Statistics of registered crimes in 2017, column 68 of the table, link: <https://www.geostat.ge/media/16776/danaSauli-2017.pdf>, [Last accessed: 06/12/23].
In December 2017, for the Prime Ministerial Candidate’s report to Parliament, <https://sputnik-georgia.com/20180202/xe-tyis-ukanono-gacexva-mTavrobis-praqtikuli-nabijebi-239164563.html> [Last accessed: 12.06.23].
Statistics of registered crimes, 2018-2022, columns 68-69 of tables, https://www.geostat.ge/ka/modules/categories/679/siskhlis-samartlis-statistikis-ertiani-angarishi , [Last accessed: 06.23].
Footnotes
[1] Hallam J, and others, Collapse of critical Ukrainian dam sparks region-wide evacuations. Here’s what we know, 2023, <https://edition.cnn.com/2023/06/06/europe/ukraine-nova-kakhovka-dam-breach-intl-hnk/index.html> [Last accessed: 15.06.2023].
[2] Dinerstein E. and others, A Global Deal for Nature: Guiding principles, milestones, and targets, SCIENCE ADVANCES, 2019, Vol 5, Issue 4, <https://www.science.org/doi/10.1126/sciadv.aaw2869> [Last accessed: 12.06.23].
[3] The Criminal Code of Georgia, 1999, Part Ten.
[4] Ibid., Chapter XXXVI, Offenses against the Environmental Protection Act.
[5] Lekveishvili M., Todua N., Mamulashvili G., Private Part of Criminal Law, fifth edn., Tb. 2017, pp. 171-172.
[6] Resolution No. 54 of 2014 of the Government of Georgia on Methodology for Determining (Calculating) Damage to Environment, Art. 6.
[7] Criminal Code of Georgia, 1999, Art. 303.
[8] Statistics of registered crimes in 2017, column 68 of the table, <https://www.geostat.ge/media/16776/danaSauli-2017.pdf> [Last accessed: 06/12/23].
[9] In December 2017, Giorgi Kvirikashvili, speaking before the parliament as a candidate for the position of prime minister, declared war on illegal logging. According to official data, the damage caused to the environment of Ge
მოსალოდნელი ზარალის ანაზღაურების უზრუნველყოფის პრობლემა, როგორც სარჩელის უზრუნველყოფის საპირწონე ინსტრუმენტი
No full textIndemnification of incurred damages does not depend on its advance securement, although the law provides the possibility of securing compensation for potential losses in advance. The institution of guaranteeing compensation for anticipated losses is one of the tools for protecting the defendant’s rights in the procedural guarantees system. Procedural law doctrine and practice sometimes shift the emphasis to already incurred damages and, thus, call it the institution of compensation for damages caused by an unjustified provisional remedy. The law of civil procedure defines the rule for securing the anticipated losses and not already existing or proven damage. The misperception of the concepts of loss and damage causes the wrong approach to the essence of the mentioned institution. The criteria and rules for securing compensation for anticipated losses and incurred damages require different approaches. In relation to the incurred or expected damages, it would be more appropriate to talk not only about the compensation of damages caused to the defendant through an unjustified provisional remedy but also through the dismissed claimant’s claim. Considering all that, securing compensation for anticipated losses should include not only expected losses incurred because of unjustified provisional remedy but also as a result of unjustified/dismissed claims. The defendant may incur various expenses or lose income due to an unjustified provisional remedy or a claim. Attention should be devoted to compensating for the damages caused by an unjustified claim to the extent that, firstly, the measure of provisional remedy is based on alleged facts, and secondly, it is only one of the procedural actions directed against the defendant. The provisional remedy itself and securing compensation for the anticipated losses to the defendant form one of the procedural guarantees of effectively using the right to a fair trial and, accordingly, it is a part of the area protected by Article 6 of the European Convention on Human Rights and the first Clause of Article 31 of the Constitution of Georgia. Based on the principle of equality before the law and the court, as well as the principle of the equality of the parties in civil proceedings, the claimant also has the right to claim compensation for damages from everyone who, through illicit actions, prevented the enforcement of provisional remedy issued by the court.
Keywords: Provisional Remedy, Anticipated Losses, Damage, Securing Compensation, Proportionality.
Introduction
The institution of provisional remedy should not only be considered as a mechanism for protecting the claimant’s rights. In this regard, the law provides a number of procedural actions of the court (a system of procedural actions) for the protection of the defendant’s rights as well. Therefore, the issue of provisional remedy is at the same time closely linked to the issue of securing compensation for anticipated losses (which can be called a reversed provisional measure),[1] since the application of the provisional remedy may harm the interests of the defendant.[2] Accordingly, the issue of provisional remedy is resolved through consideration of the rights and interests of both parties (by securing the rights and interests).[3]
The defendant should not be harmed by provisional remedy or by a claim brought in bad faith, and if so happens, he must be compensated.[4] A claim for damages should always exist when the measure of provisional remedy is found unjustified.[5] Accordingly, in the event of revoking the provisional remedy or not satisfying the claim of the claimant, compensation for the loss caused to the defendant would be impossible without securing it in advance.[6]
Any provisional measure used by the court must comply with the objectives of Article 191 of the Code of Civil Procedure and, in addition, the restriction imposed on the defendant must be reasonable and justified, considering the nature of the claim.[7] The institution of provisional remedy protects defendant from the very start, while resolving the issue of application of the remedy, first of all, through requiring the court to apply the proportionality test.[8] Securing compensation for anticipated losses in favour of the defendant cannot replace the court’s obligation to ensure proportionality during deciding the issue of provisional remedy. In other words, proportionality must be observed in any case, even if the claimant voluntarily provided the defendant with security for the anticipated losses on the basis of Article 199 of the Code of Civil Procedure. Therefore, the measure of provisional measure must be proportionate to the claim in any case.[9]
Violation of proportionality is a test of the reasonableness of a provisional remedy and the basis for its full or partial revocation, same view is provided in legal doctrine as well.[10] The violator of the requirement of proportionality is the court, not the defendant. The latter cannot be held liable in the future for violating the imperative of proportionality but rather for the fact that the provisional measure used in his favour turned out to be unjustified.[11]
Despite the importance of the institution of counter provisional measure, the existing Georgian law literature and practice on this issue is scarce.[12] Categories of losses and damages are subject to research, so it is necessary to determine the criterion regarding the amount of anticipated losses, compliance of principle of disposition to counter security measure and the threat of procedural chicane during the application of counter provisional measure. In addition, international practice in relation to the mentioned issue will also be discussed. All the above defines the significance of the present research. The regulatory norm for using the counter provisional mechanism (Article 199 of the Code of Civil Procedure) leaves the impression that the mentioned mechanism is used only at the initiative of the court or at the request of the defendant. It should be further researched whether the claimant can offer the counter provisional measure for securing compensation for anticipated losses for the defendant at his initiative.
Chapter IGuarantees to Protect the Interests of the Parties in the Mechanism of Provisional Remedy
For the analysis of the research legal institution, it is essential to have a comprehensive understanding of Part 1 of Article 57 and Article 199 of the Code of Civil Code since the right of the party (claimant) to use a measure of provisional remedy is opposed by the defendant’s interest – to protect himself from a harmful provisional remedy.[13] Thus, the legitimate interests of both parties are taken into consideration,[14] reasonable balancing is the main constitutional duty of the court. In cases provided by the law, the party asking the court for the provisional remedy may be required to secure compensation for the anticipated losses for the defendant.[15] The restriction must take into account the interests of both parties involved in the process – the defendant must be able to insure damage resulting from the provisional remedy, and the requirements set for the claimant should be reasonable and should give him a real opportunity to ensure compensation for anticipated losses. Thus, Article 199 of the Civil Procedure Code of Georgia explains in detail the procedure for using this mechanism, ensuring an additional guarantee of proportionality.[16]
The provisional remedy is linked to the restriction of the rights of the defendant, the interests of the latter is at risk of harm. It’s about potential damage. This problem is especially aggravated if the defendant is an entrepreneur. Application of provisional remedy by the court should not interfere with the normal functioning of such entity. Taking this into account and based on the principle of procedural equality of the parties, the law provides guarantees to protect the interests of the defendant; in this way, the principle of equality of parties before the court is balanced.[17]
According to Clause 1 of Article 11 and Clause 5 of Article 62 of the Constitution of Georgia, everyone is equal before the law, which includes equality before the court as well, although the Constitution does not contain a direct provision on the equality of the parties before the court.[18] The resolution of the cases in court is carried out on the basis of equality and competition of the parties.[19] In accordance with Clause 2 of Article 4 of the Constitution, universally recognized human rights and freedoms (meaning the rights and principles recognized by international law) are directly applicable law in Georgia. This means that they are not mediated by any act, do not require the adoption of additional acts by the state. Provisions similar to these constitutional norms are reflected in Articles 7, 8 and 10 of the Universal Declaration of Human Rights,[20] in Clause 1 of Article 14 of the International Covenant on Civil and Political Rights[21] and in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.[22]
It is the above-mentioned constitutional and international norms that provide claimant and the defendant with an equal right before court while applying the provisional remedy. This means that the defendant, as an equal party to the claimant, must be guaranteed the opportunity to protect his rights in the event of application of provisional measures in civil proceedings. In other cases, i.e. if the defendant does not have the opportunity to defend himself against an unreasonable provisional remedy, he will be in a disadvantageous position compared to the claimant; accordingly, the damage will be caused even before the court decides about the claim. Although the legislator aims to legitimately restrict the defendant’s right by introducing a mechanism for provisional remedy, this circumstance does not mean that interference with the right is always justified. The restriction must comply with the standards of proportionality.[23]
Chapter II
Optional Nature of Counter Provisional Measure
The use of the counter provisional mechanism (at the stage of provisional remedy) is explained by the fact that at this stage, there is still no definite prospect of the case, and it is not known whether the claim is justified or not.[24] In addition, it should be borne in mind that securing compensation for the anticipated losses is not an obligation of the court, but a right.[25] The court may also use provisional guarantee based on the application of the opposing party.[26]
The said right is used by the court in conjunction with the application of a provisional remedy.[27] If the court fails to exercise this discretionary right, the defendant may file an application and ask for securing compensation for anticipated losses.[28] In both cases, securing compensation for anticipated losses are provided if there is a reasonable expectation that the claimant will not be able to compensate for the damage caused in case if the claim is not satisfied.[29] Thus, indemnification for harm (provision of compensation) can be carried out both simultaneously with application of provisional remedy, or after that.[30]
The institution of provisional remedy equally protects the interests of both the claimant and the defendant. Accordingly, if the measures taken to secure provisional remedy turn out to be unreasonable due to the fact that the claimant was denied satisfaction of the claim and the decision entered into legal force, or the court revoked the provisional measure before the filing of the claim in accordance with Part two of Article 192 or in accordance with Part two of Article 363,30 [31] the defendant has the right to demand compensation from the claimant for the loss caused by the adoption of provisional remedy (Part 3 of Article 199). The law does not imperatively require the court to secure compensation for anticipated losses in favour of the defendant;[32] it is discretion of the court.[33] It would be more expedient if the court, on its initiative, would not have the right to impose on the claimant the obligation to secure counter provisional measure. The point is that securing compensation for anticipated losses to the defendant is in fact, “securing of such a claim which the defendant may bring against the claimant for the provisional remedy as a result of which he suffered damages”.[34] Whether or not a party initiates a complaint and claims compensation for loss or damages is entirely up to the claimant to be. Therefore, the possibility of imposing counter provisional measure on the court’s initiative contradicts the principle of disposition. The question of whether the defendant is obliged to prove a probable amount of anticipated loss that may be caused by provisional measure is also subject to research. The law ignores this issue. To the extent that the provisional remedy is based on presumed facts, based on the principle of equality of parties, the defendant should not bear the burden of proving anticipated losses that do not yet exist. Proof of actual losses must be made in the future. At the stage of provisional remedy, asserting a loss should be the defendant’s dispositional right.[35]
When applying a provisional measure, the other party is not obliged to secure its claim with money or securities in accordance with Article 57 of the Civil Code.[36] The implementation of the provision provided for by the norm in this form will be necessary only if the court, in accordance with Part 1 of Article 199 of the Code of Civil Procedure, deems it necessary to implement a provisional measure from the other party.[37] When applying counter provisional measure, several issues of both practical and theoretical importance have to be taken into account, which are discussed below.
Chapter III
The Threat of Procedural Chicane in the Mechanism of Counter Provisional Measure
First, it is necessary to consider the problem of the claimant’s fair use of substantive and procedural rights. As stated in the German doctrine, unfairness in the process is the abuse of a claim and any other procedural rights, which arises in the event of a discrepancy between the goals set by the person entitled and the goals of the right granted by law (which correspond to the goals of the civil proceedings).[38] The same opinion is upheld in the Georgian legal doctrine as well.[39] For comparison, the civil procedural law of Germany, as well as the civil procedural law of Georgia, does not contain a general norm establishing the obligation to exercise procedural rights and obligations in good faith, in connection with which there is an opinion in the German doctrine that Section 242 of the German Civil Code[40] (similar to Article 361 of the Civil Code of Georgia[41]) should be used by analogy in German procedural law.[42] The principle of acting in good faith is a general legal principle. Although it is not directly mentioned in the Constitution of Georgia, Article 34 confirms it.[43] This principle, due to its universal nature, is the basis of the entire legal order, including civil procedural law. Accordingly, this is a principle of civil procedural law and, therefore, its use according to the rules of interdisciplinary analogy is not allowed since this principle is also characteristic of the civil process.[44] According to the ruling of the German Federal Court of Justice, a clear sign of the abuse of the right is the intention to cause harm (typical of procedural chicane), as well as the exercise the right aimlessly, wastefully, or to achieve unworthy goals.[45] Complaints initiated for the purpose of harming another are considered a clear manifestation of procedural chicane (abuse of rights) in German doctrine.[46]
When considering the implementation of counter provisional measure through the prism of the principle of good faith, it is necessary to balance the interests of the parties fairly.[47] The amount requested from the claimant through the use of counter security may be insignificant for that person in view of his assets, but, for example, a provisional measure applied in the form of prohibiting use of funds may be highly restrictive for another person (the defendant), especially when that person is entrepreneur/subject of entrepreneurial activity. Applying provisional remedies may lead to the actual paralysis of the defendant’s economic activity. Sometimes, there may be unfair competition from the claimant’s side, for example, to gain a monopoly position in the market by seizing the assets of the defendant, who has a small market share. Considering that the following issue arises: is the court obliged to unconditionally apply a provisional measure if the claimant presents a counter provisional measure? The law does not provide a direct answer to this question.
The provision of the norm under Article 199 of the Code of Civil Procedure gives the impression that securing compensation for anticipated can be established only at the court\u27s initiative or at the defendant’s request. In fact, it is not excluded that the plaintiff provides security in advance. So, the claimant may not wait for the court and secure compensation for anticipated losses in favour of the defendant (counter provisional measure). This deduction is derived from a reasonable interpretation of the law. In practice, claimants do not behave so because they are not interested in the preliminary provision of security since courts usually order provisional remedies without it as well. Based on the provisions of the Code of Civil Procedure and the analysis of judicial practice,[48] the following conclusion can be drawn: a refusal to apply provisional remedies is permissible, even if the initiator of the claim submits the counter security in advance.
Even if the claimant provides a counter provisional measure, the court is not obliged to issue a provisional remedy, which is a progressive solution of the issue by the Georgian law. [49] The fact is that in the above cases when the claimant pursues the goal of unfair use of a monopoly position in the market, there is practically no harm (even if he presents counter provisional measure along with the petition for the use of provisional remedy) to his economic activity. And if it were enough to prove counter provisional measure in advance for the unconditional use of provisional remedy, the court would be forced to apply the law literally, thereby potentially bringing a bona fide defendant to the brink of bankruptcy. In the absence of an obligation, Georgian law gives the court more freedom to decide cases based on the principle of good faith and the balance of interests of the parties.
Chapter IV
Relationship between the Categories of Loss and Damage
Understanding of the essence of counter provisional measure should be sought in categories of loss and damage. The difference between these categories provides an opportunity to correctly define the scope (volume) and criterion of anticipated losses secured for compensation. The law refers to securing compensation for anticipated losses and not for advance compensation for loss or damages since the outcome of the case determines whether damages will be awarded. Accordingly, the defendant has the right to demand compensation for damages from the claimant after the claim is rejected by the court decision and it enters into legal force.[50] The right to such a request arises even if the claim is partially satisfied: the defendant will have the right to demand proportionate compensation for damages for that part of the claim that was not satisfied by the court. If the defendant asks for securing compensation for anticipated losses after a court decision in his favour (which is not yet into legal force), this can be done by way of securing the enforcement of the decision and can be expressed at least in the costs incurred by the claimant in favour of the defendant.
As mentioned, the Code of Civil Procedure establishes the possibility of securing compensation only for anticipated loss and not for the damages since it is impossible to determine the amount in advance. The determination of such damage, in addition to impossibility, would not be right since the determination of the causal link between the application of provisional remedy and the existing damage can only be relevant if the provisional remedy turns out to be unjustified, which is manifested in the dismissal of the claim by the court or in the revocation of the provisional remedy. A legally binding decision must determine such a result and, so, after the conclusion of the case. Therefore, in a case, it is not allowed to measure the size and criterion of compensation for anticipated loss by the standard of compensation for damage already incurred.
There is no coincidence that the Code of Civil Procedure refers to securing compensation for the anticipated loss (and not damage). Thus, it can be concluded that at the stage of application of the provisional measure, the imposition of security of compensation for the anticipated loss and the amount of compensation to be charged depends only on the discretion of the court. An analysis of the Civil Procedure Code of Georgia makes it possible to draw such a conclusion. It does not contain and should not reflect a special rule (rules) on determining the nature of the damage caused to the defendant and the amount of compensation. The nature and extent/amount of damage cannot be confirmed in advance.[51] It should be proven after the completion of the case and not at the stage of ensuring provisional remedy or at the stage of applying for counter provisional measure. Therefore, using Articles 408-415 of the Civil Code of Georgia in systemat
A review of the basic legal requirements for secured credit transactions
Get PDFSecured Credit Transactions (SCTs) are necessary and unavoidable transactions that business owners engage in to ensure their businesses thrive. However, because of the possibility that a person seeking to take a loan may be desperate and be taken advantage of in a time of dire need, or on the other hand, the possibility that the party may present fake properties as security for the loan, there are legal requirements that both the debtor and the creditor must meet. This paper addresses the possible parties to the SCT and the condition each category of the party must meet for the transaction to be valid. It further identifies the measures to be implemented to ensure the validity of Secured Credit Transactions. This paper finds that Nigerian Law protects both the creditor and the debtor to ensure that the SCT does not fail and none of the parties run at a loss. This paper concludes that there is a need to further protect the debtor and the creditor against failed SCT and to ensure that parties are aware of the Legal requirement for successful SCT in Nigeria. This paper recommends that the age of infants should be reviewed and made uniform across the country and that there should be a possibility to have a thorough investigation of the title of landed properties online.
Keywords: Creditor, Debtor, Loan, Property, Secured Credit Transaction
1.Introduction
In the modern world, Secured Credit Transaction (SCT) seems inevitable, especially for persons who are into business. There is a need to raise capital from time to time to enhance business and finance certain projects. People approach different sources of credit, ranging from individuals to financial institutions such as microfinance banks. The source being approached for credit seeks security to ensure that the loan, which will now include principal and interest, will be paid as when due.
To have a legally recognized SCT, the parties must comply with specific legal requirements. This paper explores who the parties to the SCT are, what the law says about the capacity of each party, and the measures to be taken legally by the parties to ensure the three pillars of security: protection, assurance, and indemnity put in place.
This paper is divided into three sections. The first part gives an insight into who the parties to the SCT are; the second part looks at the necessary steps to be taken to ensure the validity of SCT agreements and lastly, the third section gives a succinct conclusion and necessary recommendations that would provide the smooth running of SCTs in Nigeria. This paper will undertake a doctrinal research design to analyze the topic properly.
2.Parties to Secured Credit Transactions
For the sake of this paper, the following are considered necessary parties to the SCT:
Secured creditor;
Debtor;
Guarantor;
Loan debt;
Security;
Secured creditor
A creditor, according to the Cambridge dictionary, is ‘someone who the money is owed to’.[1]
This is the person from whom the debtor has borrowed money and has given security to make room for the assurance that his money will be repaid, that security is protected, and that even if his money is not paid, he will get his money from the sale of the security and as such he will be adequately indemnified. In a mortgage transaction, he is the mortgagee in the simple term, he is referred to as the lender. Where the creditor is a bank, there is a restriction placed on the bank with regard to how much it can give out as a loan.[2] Hence people in charge of loans in the bank should ensure that they do not, out of excitement, give more than the amount that is legally allowed, as loan.
Debtor
The Cambridge dictionary defines a debtor as ‘someone who owes money’.[3]
This is the party who owns the collateral and has secured it as evidence for the payment of a loan he took. He has an interest in the property and has agreed to do away with the interest he has if he is unable to repay the loan.
Therefore, depending on the type of secured credit transaction, he can be referred to as the mortgagor as in the case of a mortgage transaction or, in simple term as the borrower.
Guarantor
The Cambridge dictionary defines a guarantor as a person who makes certain that something happens or that something is protected’.[4]
A guarantor may be the owner of the security or someone standing as surety for the debtor. If the debtor is not a customer of a particular financial institution, he would need a surety. A surety must be a customer of the financial institution facilitating the loan and meet a certain required financial status.[5] Also, when the debtor does not have a property commensurate with the loan about to be taken from the creditor, a guarantor is needed; in this case, the guarantor uses his property instead and agrees to be liable should the debtor be unable to repay the debt.[6]
The Loan debt
Debt has been defined as “Something, especially money that is owed to someone else…”[7] The debtor is expected to pay the loan debt to the secured creditor. It is the money the secured creditor has advanced, and the debtor has given security. The loan debt is usually comprised of the principal sum, the original sum advanced by the secured creditor, and the interest, which is a particular percentage of the principal sum paid as profit on the loan to the secured creditor. The best practice is for the debtor to pay the interest in lump sum as soon as the SCT starts, and he then pays the principal sum in installments; this practice is known as amortization.[8]
The Security
Security is an asset that is promised by the debtor as protection in case he defaults on the reimbursement.[9] Section 1 (3) (b) (ii) of the Failed Banks Act (FBA)[10] prohibits naked lending by banks. A secured creditor has priority over an unsecured creditor,[11] and this was upheld in First Bank Nigeria Plc v. Nigerian Deposit Insurance Corporation.[12] Therefore a borrower needs to give security before he can be granted a loan.
2.1 Legal Capacity of Certain Parties
SCT places no restrictions on anybody legally allowed to enter into contracts in Nigeria from being a party to an SCT. It follows that once a person can enter into a contract, he can enter into SCT because it is a form of contract. This further implies that the provisions guiding the capacity of specific categories of parties to a contract also govern those categories when they are involved in SCTs.
Infants
In Nigeria, a person under twenty-one (21) cannot enter a legal contract.[13] Any contract with an infant will be declared null and void and unenforceable against the infant. A mortgage involving an infant is void and cannot be enforced against the infant.[14] For an infant to be involved in any contract, he must involve a guardian.
While this provision seems to protect the infant, it remains questionable if it is realistic and in line with modern practice. In recent times it has been experienced that people under 21 are exposed and mature and can make good decisions for themselves. Some of them are already university graduates and are working. If they can be allowed to work, make money, and save, it becomes a question what then is preventing them from owning properties and being parties to any form of an SCT? Persons above 18 can vote in Nigeria[15] and be held liable for any offense they commit. If they can take responsibility for their actions, if they can make decisions as to who the leaders in a country should be, then they should be able to make personal life decisions such as when to take a loan and how they choose to go about it and be allowed to take responsibility for any default.
The traditional provision (especially under customary and Islamic law), which was upheld in Labinjo v. Abake[16] that the contractual capacity of a person under customary law begins at puberty and can be determined by the physical development and maturity of the person involved seems a better provision than the strict provision generalizing that all persons under 21 cannot make decisions involving SCT.
It is suggested that the contractual age be reviewed and each person dealt with on an individual basis considering the person’s intellectual capacity, level of education, and area of growth, among others.
Illiterates
There is no general definition of who an illiterate is in Nigeria. However, it can be said and as held in some cases[17] that a person who does not understand the language of the agreement is illiterate. Like every other person, illiterates can exercise contractual capacity subject to certain formalities being complied with while preparing the contract agreement. An illiterate jurat must be inserted in any agreement involving an illiterate. The jurat must state that the terms of the agreement have been read to the illiterate in a language he understands and explained to him, and he signed the agreement upon a full understanding of the terms. So, an SCT agreement involving an illiterate must have an illiterate jurat.
This provision seems fair to avoid the manipulation of people who do not understand the language of the contract.
People with Unsound Mind
The general rule is that people with the unsound mind can enter into a contract during their lucid interval.[18] However, a secured credit transaction entered into with a person of unsound mind is valid and only voidable at the instance of the borrower if the secured lender was not aware of the insanity or void if the unsoundness of mind is such that the transaction should not have happened at all.[19]
The term unsound mind has been opined to be a broad term that covers numerous cases. It becomes questionable if a general law should govern all forms of unsoundness of mind cases in relation to the contract.
Corporations
A company is a legal person and, as such, has contractual capacity. However, the capacity of a company is limited by its memorandum of association and if a statutory company by the establishing statute. Any act outside the scope of the memorandum of association or the establishing statute is done ultra vires.[20] There is protection, however, for third parties who are involved in any act, conveyance, or transfer of property with a company if the sole reason for nullity of the transaction would be that it is ultra vires.
Trustees
Equity will not allow a trustee to unduly subject the trust property to financial risk, which would be to the detriment of the beneficiaries. Therefore, a trustee cannot borrow money using the trust property as security unless he is allowed to do so under the trust instrument.[21] He must, however, protect the beneficiary\u27s interest at all times, even if he is permitted under the trust instrument to use the property as security.
Relevant Matters to be taken into Consideration by the Secured Creditor to Ensure Validity of a Secured Credit Agreement
A secured creditor must ensure that he takes certain steps and does certain things to ensure that the security truly belongs to the debtor and that he will be indemnified if repayment becomes impossible. Failure to do so may lead to a great loss to the creditor. They include:
Having a Written Agreement
For ease of reference and enforcement, an agreement evidencing a secured credit transaction should be in writing. There is a legal requirement for the mortgage agreement to be in writing. According to Section 4 of the Statute of Frauds 1677,[22] any transaction involving land must be in writing; failure to do so makes action arising from the transaction unenforceable.[23] The written document must contain the following to ensure its validity: the names and description of the parties, the description of the property, statement of the principal sum given as a loan, interest payable, time and mode of repayment, provision for redemption and other terms. The written document must be a deed; that it must be signed, sealed, and delivered by both parties. It must be elegantly drafted, and the execution must be properly done by all parties such that parties who require extra measures to be contained in their execution clauses should not have the special contents missing, such as illiterate jurat.
Investigation of Title
In the case of mortgage transactions, there are steps that the mortgagee can follow to ensure the safety of the security. They are:[24]
Physical inspection: the mortgagee should visit the land that has been used as security and ensure that the land exists, is located where stated, and does not have any encumbrance that would prevent a sale should a sale arise. E.g., a tomb;
Traditional evidence: if the land is a family land or communal land, the mortgagee should search with the principal members of the family or community leaders, ensuring that they have given their consent to the transaction to avoid difficulties during enforcement;
Search at the land registry: Land Instrument Registration law establishes a land registry in each state. It is a place where documents relating to land are kept because, under the Land Use Act,[25] ownership of all lands in a state is vested in the governor of that state; any transfer made in respect of any land must be registered. A mortgagee should search at the land registry (usually for a fee) as this will show if there is any encumbrance, such as if the land has been mortgaged to another creditor;
In Lagos and Abuja, it is important to get the consent of the owner of the land before a search can be conducted. This is a good practice and should be done in all states as this would put the mortgagor in check and may even urge him to be honest with the mortgagee;
Search at the company registry: where at any point in time the land has been owned by a company registered under Companies and Allied Matters Act, or the mortgagor is a company, search should be conducted at the company registry, as this would help the mortgagee to know if the mortgage is ultra vires or not;
Search at the Probate Registry: the mortgagee should ensure that the mortgagor if he got the land through a testamentary document has been granted probate in respect of the land. Mere having his name in the will does not connote transfer of ownership to him;[26]
Court judgment: from time to time lands are subject to disputes in court and land disputes take years in most cases before they are settled. A search by the mortgagee at the court where he can obtain the certified true copy of any judgment relating to the land where necessary can save him from the mortgagor using a land already subjected to litigation and to which he can possibly loose ownership or may have lost ownership and probably appealing the case, as security.
Valuation of Property
Valuation is ‘the analytical process of determining the current worth of an asset or a company’.[27] It is done to determine the fair value of a property.[28] This is a procedure expected to be done by the secured creditor to ensure there is a margin of safety and that he never suffers a loss if the need for the sale of the property arises. The secured lender should ensure the valuation report makes provision for the following, among others:[29] state of the economy as at the date of valuation, location of the property, physical features, suitability of the property for lending, demand for the property, valuation method used, the amount the property is worth now and proposed worth after the term of the loan and so on.[30]
Compliance with Planning Regulation
Planning regulation is a system of land use restrictions and proposals regulating the exploitation and development of land in a particular place.[31] In Nigeria, the planning law is the Nigerian Urban and Regional Planning Act.[32]
It has become pathetic that one main challenge of real estate in Nigeria is the lack of compliance with planning regulation provisions. Several builders and landowners are not even aware of the existence of planning regulations, and they go ahead to build houses where houses should not be built, places that should be commercial areas are made into residential and vice-versa; people build where roads should be constructed and so on. All these are violations of planning regulations and, in turn, lead to the destruction of property by the government, disaster such as fire outbreak which is often uncontrollable, and so on.
It is expected that landowners should seek planning permission before constructing on land. The mortgagee must ensure that the land or building being used as security is effectively covered by planning permission and that the planning permission is religiously obeyed, not the case that a planning permit is obtained for a bungalow to be built and a story building is built instead.
Immediate or Subsequent Acquisition
The constitution provides that every citizen of Nigeria has the right to own both moveable and immovable property.[33] Also, as earlier stated, ownership of all lands is vested in the Governor of a state. This means that although a Nigerian can own land, such right is subject to the interests of the Governor of a state and hence the reason why any form of alienation without the Governor’s consent is prohibited.[34] The Governor reserves the right to take possession of the land at any point in time for overriding public interest.[35] Examples of overriding interests are:[36] exclusive government use or for general public use, use in connection with sanitary improvements of any kind, land required for mining purposes and so on.
The statutory owner of the land has a right to be informed of the acquisition and, as such, must be given a personal notice of revocation of his right of occupancy stating the reason for the acquisition and that compensation would be paid.[37] The statutory owner can protest acquisition is not within the confines of the overriding public interest.
A mortgagee should ensure that the land is not already subject to the acquisition or, if subject to acquisition during the terms of the loan, that he is aware and duly compensated. He can confirm this by checking the red copy of the survey plan and being sure that the term “free from acquisition” is boldly written on it.
Integrity Test
The lender must conduct an integrity test on the debtor to ensure that he is a person of his own words and he is truly who he parades himself to be. If he claims to own certain properties or has certain social and political connections, the secured creditor should investigate and be sure the information is accurate. Where the lender is a company such as a financial institution, the directors and managers of the bank must ensure that due diligence is put in place to ensure the borrower\u27s integrity. They should ensure that loans are not granted to insolvent persons.[38] This is essential because, according to Section 12 (2) of the Failed Banks Act, directors, shareholders, and corporate officers of banks are liable for any loss the bank runs into because of unprofessional lending practices.
There Must be a Provision for Insurance of the Security
An insurance provision in the loan agreement is made to provide for what will happen in the event of any damages or destruction done to the property. It is an essential provision because the transaction is dependent on security. Any damage or destruction to the property would adversely affect the right of the parties, and in most cases, the mortgagee would be the one to experience the most significant loss because he may not be able to recover the mortgage debt and also the security with which he would have sought indemnification has been destroyed.
Content of an insurance provision
The party to insure the property in whose name the insurance policy will be taken out. It is advisable that the secured creditor insures the property during the term of the loan and then charge the debtor the premium paid with the loan debt. If, on the other hand, the debtor insures, the secured creditor should be made his lawful attorney so that he can also access the money upon damage to the property. With regards to Mortgage by deed, the mortgagee has the right to insure and keep insured against loss or damage by fire any building, or any effects or property of an insurable nature…and the premium paid for any such insurance shall be in a charge on the mortgaged property or estate or interest, in addition to the mortgage money.[39]
The risk to be insured against and this is determined by the use to which the property is put, the location of the property, e.g., is it erosion-prone, is it in a flooded area etc. the nature of the property, and if there is the existence of any government policy, e.g., the government could state that all property in a certain area must be insured against fire.
The insurance company to be used and must be a reputable company.
The amount of the insurance premium must not be an outrageous amount of money.
The date of commencement of the insurance policy. The duration of the policy must be clearly stated, and the secured creditor should ensure it covers the term of the loan.
The application of the insurance money in the event of damage, whether to use it to reinstate the property or not. If the secured creditor has done the insurance, the secured creditor, upon receipt of the insurance money, would disburse the funds first to pay off the principal sum and interest owed him by the debtor and then render the remaining amount to the debtor. As such, the mortgagee would not have to wait to reinstate the damaged property as this may never happen or may take time and make it harder for the creditor to enforce the loan agreement. The parties may agree that the application of the insurance money in the event of damage should be made in such a way that it will negate S.67 of the Insurance Act,[40] which provides that every property that is destroyed
Forum Shopping-ის სამართლებრივი ბუნება საერთაშორისო სამოქალაქო პროცესში
No full textGlobalization increase transnational legal relations, which in turn gives rise to multinational disputes. In these circumstances, parties try to choose the court of the country whose favorable legislation gives a preference. By comparing potentially available courts, a plaintiff can determine where to begin litigation process. From a simple, rational choice perspective, it will select a forum whose substantive and procedural legal rules will produce the appropriate result. Forum shopping is an attempt to gain a tactical advantage that will contribute to the successful conclusion of the plaintiff\u27s case. The existence of forum shopping depends on there being more than one court potentially available to the claimant. If the legal systems are similar to each other, obviously, on the side will have little reason to choose either. The heterogeneity of legal systems means that a plaintiff may have a better chance of winning a case in one court than in another. Forum shopping is a form of strategic behavior based on the law system characteristics that influence the formation of plaintiffs\u27 expectations of court proceedings. Sometimes, substantive legal differences dictate the choice of party. Often, the choice of parties is dictated by the relevant procedural characteristics of the court (low costs, the possibility of receiving high compensation, etc.). Forum Shopping is not a negative legal phenomenon. It is a fact that different legal systems allow parties to determine where to initiate proceedings for a transnational dispute of any complexity. Forum shopping is a strategic behavior based on a party\u27s perception of an advantage in the substantive and procedural law of a particular legal system.
Keywords: Positive Conflicts of Jurisdiction, Forum Selection, Court Jurisdiction
Introduction
In an ever-shrinking world in which trade and commerce flow across all national boundaries, it is no surprise that the number of cross-border disputes continues to rise. Civil litigation has itself become to some extent a commodity that prospective claimants shop for amongst the potentially available national legal systems. In this environment, the scope for conflict between the courts of different countries is much increased.[1] In a world where every aspect of human affairs is increasingly international, it is only natural that opportunities for private litigants should be correspondingly globalized. This phenomenon has led, in fact, to frequent complaints in the latter half of the twentieth century that private litigation has become too internationalized and that plaintiffs are seeking justice in courts outside their own ‘natural’ jurisdictions in order to gain procedural or substantive advantages in a way that is at least vexatious, at worst oppressive. The term to describe this is, of course, ‘forum-shopping’ (also sometimes referred to as ‘law-shopping’).[2] The most famous form of positive conflicts of jurisdiction is Forum Shopping.[3] In international civil procedural law, the term refers to the right of the claimant to choose the preferred court in which the dispute litigation is most favorable, considering the relevant factual, procedural, and substantive consequences. It is the legitimate right of the claimant to file the claim where wishes based on pleading strategy, taking into account that the international procedural law of the respective countries allows such a choice.[4] Domestic forum shopping occurs when a plaintiff chooses between two or more courts within a single country’s legal system, whereas transnational forum shopping occurs when the choice is between the courts of two or more countries’ legal systems.[5] Global (transnational) forum shopping may lead to disharmony of decisions. In order to harmonize decisions, similar cases should be decided in the same way, regardless of which state\u27s court hears it.[6]
Forum shopping depends on two conditions: First, as the foregoing definition implies, more than one court must be potentially available to resolve the plaintiff’s claim. Second, the potentially available legal systems must be heterogeneous. ‘If all legal systems were the same, plaintiffs would have little reason to prefer one court instead of another.’ In contrast, the heterogeneity of legal systems means that a plaintiff may be more likely to win (and likely to recover more) in some legal systems than others, thus creating an incentive to forum shop.[7] For the Definition of Forum Shopping
Forum shopping behavior is based not only on a plaintiff’s preference for a particular legal system’s substantive and procedural law but also on the court access and choice-of-law decisions of courts.[8]
The English Court of Appeal held in a famous case that Dutch plaintiffs whose barge was damaged in the river Scheldt by Belgian defendants could bring an action for the location of the thing against a vessel that was due to enter Liverpool and which was the property of the defendants. Lord Denning made this famous comment about the right to justice of all comers in the courts of England: This right to come here is not confined to Englishmen. It extends to any friendly foreigner. He can seek the aid of our courts if he desires to do so. You may call this ‘forum shopping’ if you please, but if the forum is England, it is a good place to shop in, both for the quality of the goods and the speed of service.[9]
The exact definition of Forum Shopping is ambiguous. In common understanding, the term refers to the choice of the most favorable jurisdiction or court in which to bring an action.[10] By this definition, it means that plaintiffs sometimes choose a forum for forum-shopping reasons, defendants also may move for dismissal under the doctrine of forum non conveniens.[11]
The legal system within which Forum Shopping is conducted affects its definition, making a uniform definition difficult. The decision of the Court of Rimini of November 26, 2002 attracted a lot of attention as an Italian court interpreted Forum shopping for the first time. Court compares forum shopping to the “activity which aims at reaching the most favorable jurisdiction for the interests of the plaintiff”. [12] It is clear from this definition that the understanding in Italy, but this holds true in many other Civil Law countries as well, is that only the plaintiff can forum shop. There is no space for forum shopping by the defendant. Once a case is pending, the defendant can object to the jurisdiction of the court seized, arguing that there is no head of jurisdiction that allows the court to hear the case.[13] Unlike the definition proffered by some U.S. courts, pursuant to which forum shopping amounts to a selection of a court with an eye towards gaining an advantage based on the forum’s favorable substantive law or the avoidance of unfavorable law in an alternative forum.[14]
Piper Aircraft Co. v. Reyno,[15] which involved several domestic and transnational forum choices, illustrates the difference between domestic and transnational forum shopping as well as the definitional problem. A Pennsylvania-manufactured airplane with Ohio-made propellers crashed in Scotland, killing the passengers. The California lawyer hired by the passengers ’Scottish next-of-kin asked the court to appoint his legal assistant, Gaynell Reyno, to administer the deceased passengers’ estates. Reyno, a California resident, filed wrongful death actions in California state court on the estates’ behalf against the manufacturers, alleging that mechanical problems with the plane or the propellers caused the crash. The plaintiffs decided to sue in the United States, rather than Scotland (a transnational forum choice); in California, rather than the defendants’ home states of Ohio or Pennsylvania; and in a state rather than federal court (two domestic forum choices). The defendants removed the case to federal court and then had the case transferred from the Northern District of California to the Middle District of Pennsylvania. The defendants then moved for forum non conveniens dismissal, arguing that the case had closer ties to Scotland and should be heard there. Which of these choices qualifies as forum shopping? Under a broad definition, all of them. Under a contacts-based definition, the plaintiffs’ pursuit of a U.S. forum would not be forum shopping, especially after the case was transferred to Pennsylvania, because under private international law it is typically considered legitimate to sue a defendant at home. But if forum shopping refers only to illegitimately motivated choices, which of these moves qualify? With each of these moves, the plaintiff and defendants were seeking the most advantageous forum, as is true of almost any forum decision. Nevertheless, the maligned forum choice in Piper was the plaintiffs’ choice of U.S. court over Scottish court—not the choice of California over Pennsylvania, or state over the federal court. Those latter choices—similarly strategically motivated—are broadly considered to be within the plaintiff’s discretion. Likewise, the defendants’ efforts to remove the case from state to federal court, from one district court to another, and out of the country are considered wise parts of a thoughtful litigation strategy.[16]
Some courts and scholars use the term “forum shopping” to refer to a narrower subset that has little connection to the dispute.[17] Regardless of one\u27s view of forum shopping, this is a common occurrence. As pointed out by what was formerly known as the House of Lords, “if you offer a plaintiff a choice of jurisdictions, he will naturally choose the one in which he thinks his case can be most favorably presented: this should be a matter neither for surprise nor for indignation.” Indeed, “every lawyer thinks about the best forum before filing a case or before answering a complaint.” Not only, “it is part and parcel of the litigator\u27s job to explore the feasibility of bringing suit in the most advantageous forum, as part of an effective tactical strategy”. In effect, “lawyers ethically are compelled to seek the most favorable forum to further clients’ interests.” [18]Disadvantages and Advantages of Forum Shopping
There is a negative attitude towards Forum Shopping, especially in the context of global litigation. The term is associated with unprincipled, worthless tactics and undeserved victories. It can lead to expensive and cumbersome litigation in a forum not ideally suited to hear the case, which inconveniences courts and parties alike. Finally, simultaneous or seriatim proceedings in multiple courts duplicate effort and further prolong litigation—creating waste from the point of view of both the courts and the parties.[19] There is an opinion that forum shopping contrasts with the idea of a “level playing field” in that it may distort the playing field, and that forum shopping may create a negative popular perception about the equity of the legal system.[20]
The general attitude of the House of Lords towards Forum shopping was formulated as follows: that forum shopping is unfair to defendants, who may be put to unwarranted expense and inconvenience in defending actions brought somewhere other than the ‘natural’ forum of the dispute; that it is biased in favor of plaintiffs, who are likely to choose for a that will be sympathetic to their versions of events; that it is an inefficient use of judicial resources, tending to clog the courts of the selected jurisdiction with ‘foreign’ actions; that it creates doubts about the fairness of the justice system when opportunism, rather than justice, seems to be the determining factor in litigation; that it creates uncertainty of judicial result; and that, in a federal system of government or in an international context, it creates tensions between jurisdictions by undermining the policy choices of one of them in preference to those of the other.[21]
The negative attitude towards forum shopping is not unique to national legal systems. It can be defined at the European level. In this region, one of the justifications for efforts to unify private international law was to avoid forum shopping. At the international level, it is worth noting that one of the main goals of developing the 1980 UN Convention on the International Sale of Goods, was when the UNCITRAL Secretariat stated: “Reduce the search for courts with the most favorable law.”[22]
A well-known, high-profile case of global forum shopping is the suit of Austrian law student Schrems against Facebook.[23] In 2013, the student filed complaints with an Irish privacy regulator against Facebook Ireland Limited, the company that contracts with all Facebook users outside of the United States and Canada. The student alleged that Facebook, through its participation in the U.S. government’s Prism surveillance program, had violated European privacy laws. Unsatisfied with the slow pace of the Irish response, the student withdrew most of his complaints and refiled in Austria. The student also advertised online that Facebook users all over the world should assign their claims to him, and through a claim-assignment procedure already recognized in Austrian courts, he has created the largest putative class action in Europe, financed in part by crowd-sourced funding. This case, which the Austrian Supreme Court recently referred to the Court of Justice of the European Union (ECJ), may make Austria and its courts confront some of the most perplexing procedural issues in transnational litigation, including claim aggregation, litigation funding, and law’s extraterritorial reach.
The Regional Civil Court dismissed his claim on the ground that, since he was also using Facebook for professional purposes, he could not rely on that provision regulating consumer contracts. Furthermore, the Regional Civil Court found that the jurisdiction to hear the assignors’ claims could not be assigned to Mr. Schrems. The decision focused on the jurisdictional side of the case, looking at whether Schrems shared the view that Austrian Facebook users were allowed to take legal action based on their place of residence under Austrian consumer rights legislation. The judge disagreed, stating that the plaintiff used the social media service both privately and professionally and had a commercial interest against Facebook. The court ruled that the lawsuit - involving German and Indian plaintiffs who chose Vienna as the venue – was legally problematic and inadmissible. Facebook\u27s lawyer argued that Mr. Schrems was not a user in the legal sense and that the Vienna court had no jurisdiction – either against the California firm or its Dublin-based international subsidiary. Schrems’ lawyer denied the accusation that his client was conducting the case for commercial purposes.[24]
Sometimes, scholars applaud when parties designate a forum for disputes. Some scholars argue that forum shopping through contractual forum selection clauses is essential to encourage governments to develop better laws. Because the parties’ choices reflect their joint agreement, some scholars contend that through these clauses, individuals and firms seek out the best regulatory regimes, and that interested states may be encouraged to compete for the parties’ presence and business. Interested governments, in turn, will seek to provide those legal “products.” [25]
Forum Shopping in Court Practice
Forum Shopping was born out of American case law. It is now widely believed that the United States is experiencing an explosion of transnational litigation-litigation involving foreign parties or foreign activity. The United States has substantive and procedural laws that are more advantageous to plaintiffs than the laws of other countries. According to the conventional understanding, two features of the U.S. legal system encourage plaintiffs to bring transnational disputes to the United States by promising access to these advantages. First, the United States employs a permissive approach to personal jurisdiction, giving plaintiffs-both domestic and foreign-broad access to U.S. courts. Second, U.S. judges have a strong tendency to apply the U.S. substantive law that plaintiffs often prefer, even in lawsuits arising out of events occurring in foreign countries.[26] Lord Denning characteristically described Forum shopping in one of his cases: “As a moth is drawn to the light, so is a litigant drawn to the United States.”[27]
In September 2015, Volkswagen announced it had rigged diesel emissions tests to make its “Clean Diesel” cars seem to comply with U.S. environmental regulations while they were being tested.[28] In fact, the cars emitted pollutants up to forty times more than U.S. law permits. After that announcement, which affected 11 million cars worldwide, Volkswagen’s market value dropped by about 75,000 (after costs). The English claimants then brought an action in Texas against a number of parties who may have had some connection to the aircraft or its operation. One such party was the manufacturer, Airbus. Airbus applied successfully to the Indian court for an injunction to restrain the English claimants from suing it anywhere other than India. But the injunction had no effect because the English claimants were outside India, and thus not amenable to the process of the Indian court. Airbus therefore came to England and sought an injunction in the home courts of the English claimants to stop them from continuing the Texas action against it. In the Court of Appeal, Airbus succeeded. But the House of Lords thought otherwise. Lord Goff held that the English court had to have a “sufficient interest” in the matter in order to justify the indirect interference with the foreign court, which an antisuit injunction entails.
Manufacturers Life Insurance Co. v. Guarantee Co. of North America, where judge was willing to accept that forum-shopping is a valid way for a party to pursue legitimate interests, but who intervened when the conduct of the shopping expedition began to work unfairness on the defendant. Both parties to the action were Ontario companies. The plaintiff had sued in California and Utah to recover losses under a life insurance company\u27s blanket bond. When the defendant disputed the jurisdiction of the American courts, the plaintiff commenced proceedings in Ontario. The plaintiff then moved to stay its own proceedings in Ontario, until the determination of the jurisdictional questions in California and Utah. The judge in dismissing the motion to stay proceedings, held that while the plaintiff was entitled to shop for favorable law, it was unfair “to put the defendant ‘on hold’ until the plaintiff has shopped the world”.[30]
Conclusion
Forum Shopping is not a negative legal phenomenon. It is a fact that different legal systems allow parties to determine where to initiate proceedings for a transnational dispute of any complexity. Forum shopping is a form of strategic behavior based on the law system characteristics that influence the formation of plaintiffs\u27 expectations of court proceedings. Sometimes, substantive legal differences dictate the choice of party. Often, the choice of parties is dict
თანაცხოვრება და სოლიდარობის აქტი საფრანგეთის სამოქალაქო კოდექსის მიხედვით 2022 წლის 14 ნოემბრის მდგომარეობით
No full textAfter the Civil Code of Georgia entered into force in 1997, more than 25 years, the analog of the German family law at that time – Georgian family law – has not become the object of legislative changes. While all over Europe, around the fundamental core of so- ciety called the family, the states establish new regulations, create institutions, expand the concepts and support all this to the free de- velopment and choice of the individual, our family law is more and more distant from reality. In this article, the types of relationships between couples provided by the French Civil Code, different from marriage, are reviewed, which, according to the French national statistics, are much more in demand among young couples than marriage. These types allow individuals to decide of their own free will which legal institution is the most favorable for their relationship and goals. Georgian society belongs to the big family of Europe, that is why it is necessary for the legislation of Georgia to follow the dynamics of European development and take into account the changes made by the neighboring states, of course, adjusting it to its reality.
Keywords: family law, marriage, cohabitation, act of solidarity, couple
Introduction
The family is the nucleus of Georgian and French society, which is organized and protected by law due to its high importance. The family is a large or small group of natural persons who have some kind of kinship or family-legal relationship with each other. The French Civil code, in contrast to the Georgian law, which only recognizes the existence of the institution of marriage between a couple, recongnizes two legal forms of a couple’s relationship: cohabitation (concoubinage) and act of solidarity (Pacte civil de solidarité*). As a result of many parliamentary debates, the Chapter on cohabitation and the act of solidarity was added to the French Civil Code on November 15, 1999, based on Law No. 99-944. The development of society caused the aforementioned legislative change, women’s movements, and the establishment of women’s rights, the desire for an independent life, and personal freedom. According to French National Institute of Statistics research, cohabitation and act of solidarity are significantly more common among young couples than marriage.[1]
Cohabitation
Unlike the act of solidarity, cohabitation in the French civil code is devoted to only one article (Article 515-8), according to which cohabitation is the fact of living together between two persons of different sexes or of the same sex, which is characterized by stability and continuity.[2] For a couple’s life together to be considered cohabitation, it is necessary that their stay together be characterized by the following conditions:
Two authorized persons must represent the couple;
Not married;
Lived together with minimal stability;
Their relationship should be characterized by continuity.
The French Civil Code recognizes cohabitation only as a fact and does not give it legal force; cohabiting persons are not even considered members of the same family, and their relationship status is single.* Despite this, a person can live in only one cohabitation (concoubinage). The French Civil Code does not set an age limit for cohabitation therefore, even minors can live together as a couple under cohabitation. By integrating cohabitation into the French Civil Code, the legislator did not create a new institution; it simply recognized the right of the couple to have a free union (union libre), but outside of the relationships regulated in detail by the Civil Code. Nevertheless, Article 515-8 of the French Civil Code has often become the basis for decision-making by the French Supreme Court. Despite the law limiting cohabitation to only one article, jurisprudence has established various principles.
Since, according to French legislation, cohabitation is a legal fact, its registration, unlike marriage, is impossible, but it is possible for the state body to recognize the fact. The City Hall[3] will issue the notification about cohabitation, although it is not obliged to issue such a document by law. According to the official website[4] of the state services, based on the couple’s request for a certificate of cohabitation, some City Halls issue a document and determine the existence of the fact of cohabitation. This document does not have legal force; it is more like a certificate and can be used in some cases defined by law, for example, when a couple requests social assistance. Obtaining a certificate is free of charge, and to receive it, the couple must submit identity cards and residence documents (utility payment receipt, rental agreement, etc., which is, in a way, an alibi of the couple’s cohabitation). It may also be necessary to present witnesses who will confirm that the couple is living together. Although cohabitation does not create a legal relationship between the couple, it does not entirely exclude them either. For example, a partner can demand from the other partner the return of the property obtained due to unjust enrichment,[5] since they do not have mutual maintenance obligations. According to the decision[6] of the French Supreme Court, a cohabiting couple does not have an obligation of fidelity. Since cohabitation is a free relationship, separation can occur at the initiative of one party without the other party\u27s consent, without his knowledge, and without any legal measures or appeal to the state authorities. The pregnancy of the partner is also not an obstacle to separation, as it is considered, for example, in marriage, however, in the presence of certain circumstances, based on Article 1240 (formerly Article 1382) of the French Civil Code, which deals with the question of compensation for damages caused by tortious obligations, after infidelity and separation, it is possible to claim compensation for moral damages against the spouse who initiated the breakup or was the author of the betrayal.[7] During cohabitation, if one of the partners dies, the other party has no right to legal inheritance. However, it is possible to be a testamentary heir, and the partner does not have the right to reversion* of the deceased partner\u27s pension.
Act of solidarity
The act of solidarity is a contract between two adults. In its essence, the act of solidarity, which the french refer to as PAX (P.a.c.s), lies between cohabitation and marriage and concerns the property and money matters of the couple; it does not affect the family and filiation. According to the Franch public services website, Pax affects a couple’s social, income, tax, housing, and property rights and does not affect filiation or name. Under the act of solidarity, partners are not considered to be spouses of each other, and whether they are members of the same family or not, neither the law nor the doctrine nor the jurisprudence has an unequivocal answer.
The articles on the act of solidarity of the French Civil Code have undergone several changes since 1999, namely in 2005 and 2006. According to the first sentence of Article 515-4 of the French Civil Code, a couple bound together by an act of solidarity undertakes to live together and support each other materially and mutually.
According to data published by the French institute of Statistics and National Studies on January 16 in 2018, 181,900 different-sex couples and 7,000 same-sex couples signed the act of solidarity in 2015, and 184,400 different-sex couples and 7,100 same-sex couples in 2016. This data shows the fact that the act of solidarity is a sought-after institution in French society.
The act of solidarity is not only characteristic of French law; a similar type of institution is also found in Belgian law under the name of legal cohabitation (cohabitation légale), which differs in its content from the institution of the French act of solidarity. According to Belgian law, legal cohabitation can even be enjoyed by members of the same family; the couple doesn\u27t need to be in a sexual relationship, and the partners in legal cohabitation undertake to manage the residence together, take care of living expenses together and share certain debts. In German law, the institution of the French solidarity act can be found under the name of cohabitation (Lebenspartnerschaft). However, the content is different in particular, a couple is only homosexual, they undertake to take care of each other and live together they have the right to take each other’s surname. Unlike French civil law, the German Civil Code gives cohabiting partners more rights and obligations, almost similar to that of a married couple. German law gives the cohabiting partner the right to adopt the biological child of the other partner, which is impossible under the French Civil Code. Canadian civil law recognizes cohabitation under the name of living common law, while some American states recognize - common-law marriage. However, the content of each institution and regulation by law is not similar. Common-law marriage in the United States was based on the New York Supreme Court’s decision in 1809 (Frenton v. Reed), in which the court notes that a couple who have lived together for several years and are perceived as husband and wife in the eyes of the public, are considered married even without a formal marriage, and they are spouses for each other.
According to Article 515-1 of the French Civil code, the act of solidarity is a contract between two adults, of the same or different sex, for the organization of their common life. Signing a so-called Pax contract is prohibited if one (or both) partners are already married or are “Paxed“. Incest is strictly prohibited by French law. According to Article 515-2 of the French Civil Code, the act of solidarity is void if it is concluded between relatives in direct ascending and descending lines and between relatives in lateral lines (cousins) and their children and grandchildren.
Since the act of solidarity is a contract signed between the partners, it becomes effective for the parties upon its signature, and the right of dispute for the third parties arises upon its publication by the notary. The contract is filed before a civil officer, who first verifies the admissibility of the couple’s applications and then registers it and delivers the documents to a notary for registration and subsequent publication. If the parties, after the publication of the contract, want to make changes to the act of solidarity, they are obliged to register them through the procedure of entry into force of the contract. Two types of the contract act of solidarity exist: 1. Prepared in advance by the City Hall[8] and 2. Drawn up by the free will of the parties, and the principle of freedom of contract applies to it. According to the first sentence of Article 515-5 of the French Civil Code, if the contract does not provide otherwise, the parties dispose of personal belongings according to their interests and wishes. Also, the payment of the loan taken by one partner for personal interests is only his obligation. If one of the partners took the loan for common interests, the other partner is also responsible for paying. If one of the partners dies, another party has no right to inherit without a will. According to the French Civil Code, if the heir bequeaths part of his property to his partner, he is obliged to bequeath the other party of the property to the legal heirs.[9]
Partners have the right to end the act of solidarity independently, and the relationship will be considered completed for the couple from the moment of registration of the contract\u27s termination statement by one of the partners. According to the French law of May 12, 2009, the Family Court is authorized to hear the claim if a dispute arises between a couple.
Conclusion
Marriage is a significant fact in the life of any person and gives rise to important legal, moral responsibilities and obligations. According to Article 30 of the Constitution of Georgia, marriage, as a union between a man and a woman to create a family, is based on the legal quality and free will of the spouses. For a long time, the fact of a couple living together without marriage is no stranger to Georgian society; however, since Georgian law does not consider any other fact or institution of a couple being together besides marriage, the relationship of the parties remains without legal regulation or recognition of this relationship by the law, which unfortunately causes many problems, especially in case of separation of the couple. Since a couple\u27s relationship in an unregistered marriage is not legally recognized, the parties cannot enjoy a number of rights, which threatens their personal and property rights.
The Georgian Civil Code must consider the example of the French Civil Code and integrate institutions other than marriage, such as the act of solidarity, into the Civil Code. By integrating this institution into the law, the couple will have the opportunity to decide how to legally regulate the relationship between them. Also, recognizing cohabitation as a fact by the law and bringing it into a particular legal framework will be an important innovation since the couple will have the opportunity to recognize the fact of their cohabitation before the law, which will to some extent, bring legal recognition of their relationship. Since the supreme law of the country strictly defines marriage as a union between a man and a woman, it is possible to regulate the institution of the act of solidarity or the fact of cohabitation, allowing a same-sex couple to regulate their monetary and property relations. In addition, if the law allows a same-sex couple to enjoy the act of solidarity or the fact of cohabitation, in this way, their relationship will be recognized and brought into the legal framework, and the institution of the family will not be violated.
Since the law is a living organism and constantly undergoes changes due to the development and needs of the society, the Georgian Civil Code must follow the rhythm of developed countries, integrate such legal issues, and adapt to the society\u27s demands already been introduced and tested.
Bibliography
Constitution of Georgia of August 24, 1995;
Civil Code of Georgia of June 26, 1997;
Law of Georgia on Civil Acts of December 20, 2011;
The Civil Code of France of March 21, 1804;
Aline Cheynet de Beaupré Family Law; Paris, Ellipses, 2019;
J. Carbonnier Civil law – the family; Puf; 21st ed. 2003;
P. Coubre, A. Gouttenoire and M. Farge – Family Law; Sirey, 8th ed. 2021;
Decision of the French Supreme Court of May 18, 2022 N 18-12.808;
Decision of the French Supreme Court of February 3, 1999 N 96-11946;10.www.service-public.fr.
Footnotes
*Civil Pact of Solidarity.
[1] https://www.insee.fr/fr/statistiques/3306175#tableau-figure1.
[2] Article 515-8 du Code civil - Le concubinage est une union de fait, caractérisée par une vie commune présentant un caractère de stabilité́ et de continuité́, entre deux personnes, de sexe diffèrent ou de même sexe, qui vivent en couple.
*In French Doctrine, only the persons who have sexual relations with each other are referred to as a couple.
[3] In France, City Hall is a body where any information about a person is registered.
[4] https://www.service-public.fr/particuliers/vosdroits/F1433.
[5] Decision of the French Supreme Court of May 18, 2022 N 18-12.808.
[6] Decision of the French Supreme Court of February 3, 1999 N 96-11946.
* Le droit à la pension de réversion.
[7] Tout fait quelconque de l’homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer - Any action that causes harm to another obligates the author of that action to correct it.
[8] https://www.formulaires.service-public.fr/gf/cerfa_15725.do.
[9] https://www.service-public.fr/particuliers/vosdroits/F2529
ვალაუვალობის სასამართლო რეაბილიტაციის რეჟიმის საქმის წარმოებაში
No full textAs it is known, the court is the body that administers justice. Georgia has a system of general courts, including District, Appeal, and Cassation courts. The district court is a court of first instance covering the entire territory of Georgia. Considering the specificity of insolvency, its cases are considered only by the city courts of Tbilisi and Kutaisi. The powers assigned to the insolvency court include reviewing the application, opening the rehabilitation regime, appointing a manager/supervisor, etc. The activity of a judge often goes beyond the scope of civil law and Civil Procedure Code. Accordingly, the rights and obligations established by other branches of law apply to him/her. One is the law of insolvency, which mainly has independent general and procedural norms. The current law envisages the court’s involvement in such a regime as rehabilitation. In the work, the role of the court is considered within the framework of the regulation of the law of insolvency, the rehabilitation regime, which is regulated by the law of insolvency. And the research revealed that certain issues need to be regulated at the legislative level. Due to the fact that the role and rights, and duties of the court in the rehabilitation regime have not been elaborated in accordance with the new law by the researchers, the research topic is relevant and interesting. To properly discuss the topic provided by the article, the law “On Rehabilitation and Collective Satisfaction of Creditors’ Claims”, insolvency proceedings, and bankruptcy proceedings are compared. The normative acts in force in Georgia are used in the work, which regulates the rights and duties of the judge. In addition, various international acts are cited in the article for comparison and strengthening of the position.
Keywords: insolvency; rehabilitation regime; statement of insolvency; insolvency court.
Introduction
In the law of insolvency, the rehabilitation regime is of special importance. The court decides to open it. In particular, it examines the application submitted on the request of the rehabilitation regime and makes an appropriate decision on recognizing the application on insolvency as admissible.
This article is interesting and noteworthy because it discusses the court/judge in the context of insolvency and the necessity of its independence at the level of specialization in this field.
Research methods such as historical, comparative, descriptive, and others were used during the work.
The purpose of the research topic is to study the role, independence and rights, and duties of the judge in insolvency.
The research topic is the study of Georgian and foreign legislation on insolvency within the framework of the judge/court.
The object of the research is the study of the rights and duties of the court/judge.
Admissibility of Insolvency Petition by Court
Every action is committed to achieving the appropriate result. While applying, the applicant is focused on the court’s acceptance of the application. The appropriate result will be obtained when the applicant considers the reservations defined by the law and properly submits the application to the court. In particular, the declaration of admissibility of the application for insolvency will be made by the court. Otherwise, the court will refuse to declare the application admissible.
To initiate the rehabilitation regime, the court shall conduct a kind of “investigative” procedure to determine whether the debtor is, in fact, insolvent. This investigation requires an insolvency test. The court discusses the admissibility of the application for insolvency within the time limits established by law, which are different depending on the applicant’s status.
Since the application has been submitted in accordance with the law and the court considers that it meets the formal requirements, and the debtor is insolvent or facing imminent insolvency, it will issue a ruling on the admissibility of the application and the opening of the rehabilitation regime.[1] The mentioned issue is similarly regulated by German legislation. The application filed by the creditor or the debtor must be based on insolvency or imminent insolvency, verified by a judge, to start the proceedings.[2] According to the new law, the court has a 7-day deadline for the application filed by the debtor and a 10-day deadline for the submission by the creditor, after the creditor presents the document confirming the delivery of the court order to the debtor.[3] The Law “On Insolvency” of 2007 provided for the submission of the latter before the filing of the application, for which a 5-day period was determined, and it could be extended by a court order for 10 days.[4] The court had a 5-day deadline for accepting the application filed by other applicants.[5] Setting a 5-day deadline for the judge was called unreasonable by Professor Roin Migriauli, who spoke in his article about the mentioned issue in 2013. He believes that the given time is not enough to make a decision.[6]
If we consider that our judicial system suffers from a lack of judges, is characterized by many cases, and not insolvency judges. Still, judges from other branches of law consider insolvency law cases, 7 and 10 days will not be enough to study the factual circumstances stated in the application, especially the basis of insolvency given in the application, and to make appropriate decisions. As the practice of the previous law showed, five days were not enough. It is regrettable that the new law did not consider this problem, failed to assess the dangers that an unreasonable deadline can cause, and refused to make appropriate changes. In my opinion, the new law should at least consider the deadline of 1996 law “On Bankruptcy”, according to which the court would review the application within 45 days.[7] The differentiation of application deadlines by the legislator in accordance with subjects is an important innovation, which shall be positively evaluated, considering the risks and responsibilities accompanying the application submission. Also, submitting an application by the creditor requires a special assessment because they do not have access to complete information about the debtor, which requires additional effort and time from the court. This all confirms the opinion that the terms established by the current law for considering the application are not enough.
The court in the proceedings of insolvency
The admissibility of the application is interesting and distinctive as the judge’s involvement in the process begins at this stage. Accordingly, in the cases and within limits provided by the law, the judge starts to implement in practice the rights and duties assigned to him/her.
Special attention should be paid to the role and involvement of the judge. First, since the 1996 law, their powers have changed. Accordingly, their role has a different character depending on the content of the norms of the law. For example, if we consider the rights and duties of a judge under the Bankruptcy Act 1996, their role was divided into two parts: making an order in judicial[8] and extra-judicial[9] rehabilitation to start the rehabilitation regime.
It is believed that the functions of the bankruptcy court were minimized during extra-judicial recovery. This is because it only carried out legal supervision, and the course of rehabilitation and its development were not the subjects of the court’s interest. Court supervision meant bringing the existing private legal dispute between the debtor and the creditor into the legal framework and creating the necessary legal guarantees to settle the dispute.[10]
In contrast to extra-judicial rehabilitation, judicial rehabilitation was characterized by the active involvement of the court. The court’s involvement in implementing judicial rehabilitation was manifested in accepting and approving the application for bankruptcy settlement, accepting settlement proposals, and developing the proposal by the court itself.[11] The latter can be considered a special fact of autonomy in implementing the rehabilitation regime. Therefore, in accordance with the Civil Procedure Code, the course of the proceedings in the court is based only on the principles of disposition, competition, and the implementation of justice by the court on the principles of equality of citizens. Accordingly, the course of the proceedings and the opinions related to it are perceived as a means of realizing the rights of the parties and not as a means of realizing the rights of the judge.
We know that usually, in the process of civil cases, the court is actively involved. Its powers in conducting the proceedings of insolvency are different and small. The difference from civil law proceedings is due to the specificity of insolvency. The difference manifests from the application preparation to its acceptance by the court and the issuing of a decision on the opening of the rehabilitation regime.[12]
Although insolvency proceedings are different from civil contentious proceedings, the judge’s activity was manifested in the presiding, which meant ensuring the equality of the parties. Actually, it is considered that - “the role of the court is diminished in individual cases and is limited only to the formal approval of decisions”,[13] however, the same opinion should not be applied to the development of the court’s sentence, at least for the equality of the parties. In the legal literature, there is an opinion that "the promotion of separate groups already means inequality“.[14] If we consider that the court should be actively involved in the proceedings of insolvency, in particular, in the rehabilitation regime, it can be considered favorable for the protection of the equality of the parties to propose a sentence with the active involvement of the parties, which implies the reconciliation of the parties, under the norm of the Civil Procedure Code. [15] The law “On Rehabilitation and Collective Satisfaction of Creditors’ Claims” does not envisage the drafting of any proposal by the court. The word that became the leitmotif of the law: equality, was ensured by the legislator in this context as well, and in case of remaining in management for the debtor, the approval of the project of the rehabilitation plan prepared by him/her depends on the creditors and also provides for the submission of proposals by the creditors.
“The Bangalore Principles of Judicial Conduct can be considered as one of the sources of sharing the mentioned opinion, according to which - “A judge should not make any comments on a case he/she is conducting”.[16] According to the rules of judicial ethics of Georgia, - “A judge must render justice without showing any preconceived notions”.[17] While drawing up a reconciliation proposal meant determining the satisfaction of the order of creditors, which is a matter to be determined by the parties to the regime. In my opinion, the judge’s involvement in the mentioned process and the existence of any of his/her opinions created a basis and doubt in favor of one of the parties or vice versa. Accordingly, I believe that the norms established by the new law ensure the increase of the standard of independence of the judge and the transparent course of the process between the parties, the means of providing of which are guaranteed, as by the mentioned, as well as by other normative-legal acts.
Finally, it can be said that implementing the extra-judicial rehabilitation regime guarantees the interests of the parties and their protection, at least until the Supreme Council of Justice will not raises the field of insolvency to the proper height and will not equalize the economic, financial, labor and international importance of the area with other narrow specialization fields in the court. In particular, by creating an apparatus by judges specializing in insolvency law, which will be staffed directly with judges who know the field of insolvency and not according to the existing practice when judges dealing with commercial, contractual, and other matters consider insolvency cases. In this case, the problem is not only the independence of the field but also the overloading of the general courts of Georgia. There are frequent cases when one judge has more than 300 cases that have to be heard. In such conditions, the deadlines established by the law are very long, which carries a special risk for insolvency cases. Similar to my opinion, the European Court explains the following to eliminate the mentioned problem: - “It is necessary to employ a sufficient number of judges to avoid overloading them with cases and to finish in a reasonable period the cases already assigned to the judges, regardless of their volume”.[18] The European Charter assigns responsibility to the state for hearing the case within a reasonable period - “the state is obliged to ensure that judges have the necessary means for the proper performance of their duties and in particular for hearing cases within a reasonable period of time”.[19]
I believe that if the talks of judicial overloading over the last decade had not been in vain and had been given the proper attention, time, and effort, we would not have seen the dire consequences of the Insolvency Procedure Act in the form of more bankruptcy cases in comparison with the rehabilitation regime. The issue of specialization and independence of the field remains a challenge in the judicial system within the framework of the new law, which requires a radical change from a practical, normative, or scientific point of view.
Implementing the mentioned issue may cause a difference of opinion and raise the question of how to select the insolvency judges by election or appointment?
The organic law of Georgia “On General Courts” recognizes the election and appointment of judges. According to the law, the judge of the Supreme Court is elected by the Parliament of Georgia,[20] and judges of appeal and district (city) courts are appointed by the High Council of Justice of Georgia.[21] Considering that the hearing of insolvency cases throughout the country only occurs in Kutaisi and Tbilisi City Courts, the competence to appoint judges is uniquely the prerogative of the High Council of Justice. Accordingly, an insolvency judge appointed by the Council shall meet all the requirements stipulated by the law, including passing the qualifying examination, which involves the basic legislation of the field.[22] Except for civil law, the branches of law given for examination have very little connection with the law of insolvency. Also, it is worth noting that the law regulating insolvency proceedings and the fields close to it, such as business and tax law, are not part of the exam topic. Accordingly, I can say that the qualification exam for judges cannot ensure the training of insolvency judges according to the current standard, and their passing of the exams is inappropriate under the current standard. In addition to the knowledge of legal norms, in my opinion, an insolvency judge should have a basic understanding of business administration and management. All this is necessary, so the judge has an accurate idea of business management, risks, income, expenses, etc. To support this point, a quote from the opinion of the Consultative Council of European Judges (CCJE) can be cited: “Where judges are appointed or may be appointed from a group of experienced practitioners, the need for examinations is doubtful, and the basis for appointment should be more practical skills and consultation with others, who have direct information about the relevant candidate’s work experience”.[23]
Conclusion
As a result of the summary of the paper, the following can be concluded:
The time limits established by the law for the court to discuss the admissibility of the application for insolvency, if the debtor is insolvent/faced with imminent insolvency, is not reasonable.
It is necessary to create a judicial apparatus specializing in insolvency, which will be staffed by judges who have the
Knowledge in the field of insolvency.
In my opinion, the question of how to select judges of Insolvency, by election or by appointment, the practice of other countries should be shared, and only passing the exam should not be the criterion for evaluating the judge’s knowledge and qualifications.
If it is a matter of principle that the judges in the field of insolvency shall pass the exam, I think that the judges should be evaluated in such fields that have a close connection with the field of insolvency, because the qualification exam of judges according to the current standard cannot ensure the proper training of the judges of insolvency.
Considering all the mentioned above, it would be correct to say that in the system of general courts, it is necessary to establish an independent judicial apparatus in the field of insolvency, for judges to pass the qualification exam with appropriate specialization and in case of failure to pass the exam, to select appropriately qualified judges and to set a reasonable time limit for the court to consider the application.
Bibliography
used literature
ISET, Regulatory impact assessment of selected issues under the rehabilitation and collective satisfaction of creditors bill, (2019) Final Report. https://info.parliament.ge/file/1/BillPackageContent/27794
Lexology GTDT, INSOLVENCY LITIGATION France, Germany, Spain, United Kingdom and 1 more, Generated 21 December 2021. https://www.lw.com/admin/upload/SiteAttachments/Insolvency%20Litigation.pdf
Ketiladze M., (2022) The role of the court in accepting the application for the rehabilitation regime, Tbilisi Humanitarian Education University III online international scientific-practical interdisciplinary conference.
Migriauli R., (2013) Bankruptcy Law Critics, Newspaper: Banks and Finances.
Migriauli R., (2017) Introduction to Bankruptcy and Insolvency Law, 3rd Revised Edition, Publishing House: World of Lawyers, Tbilisi.
Meskhishvili K., Batlidze g., Amisulashvili N., Jorbenadze S., (2021) Insolvency case production Basics According to the Law “On Rehabilitation and the Collective Satisfaction of Creditors’ Claims”, publishing house: GIZ, Tbilisi. http://lawlibrary.info/ge/books/GIZ_Insolvency-reader_2021.pdf
Khubua G., (2004) Theory of Law, Publisher: Meridian, Tbilisi.
Normative material
Law on Bankruptcy Proceedings 1996. https://matsne.gov.ge/ka/document/view/652?publication=8
Bangalore Principles of Judicial Conduct 2002. https://www.supremecourt.ge/files/upload-file/pdf/aqtebi15.pdf
Civil Procedure Code of Georgia 1997. https://matsne.gov.ge/ka/document/view/29962?publication=153
Insolvency Proceedings Act, 2007. https://matsne.gov.ge/document/view/4993950?publication=0
Conclusion #1 of the Consultative Council of European Judges (CCJE) (2001) for the attention of the Committee of Ministers of the Council of Europe on the independence of the judicial corps and the standard of inadmissibility of the termination of the authority of judges.
European Charter on the Status of Judges. https://www.supremecourt.ge/files/upload-file/pdf/mosamartleta.qcevis-wes1.pdf
Explanatory card on the draft law of Georgia “On Rehabilitation and Collective Satisfaction of Creditors’ Claims, 2020. https://info.parliament.ge/file/1/BillReviewContent/245931
Judicial ethics rules of Georgia. http://dcj.court.ge/geo/კანონმდებლობა/ეთიკის_წესები
Law “On Rehabilitation and Collective Satisfaction of Creditors’ Claims”, 2020. https://matsne.gov.ge/document/view/4993950?publication=0
Organic law of Georgia “On General Courts”. https://matsne.gov.ge/ka/document/view/90676?publication=47
Recommendation of the Committee of Ministers #R (94) 12, Explanatory card for member states on the independence, efficiency and role of judges.
Footnotes
[1] Law “On Rehabilitation and Collective Satisfaction of Creditors’ Claims”. 47.4. [Last Viewed Date: December 31, 2022]
[2] Lawyer for Insolvency Law: German Proceedings. <https://se-legal.de/insolvency-lawyers-germany/?lang=en&fbclid=IwAR0UdnHpQ-S1c3Tmojw3LXsyYlntG22UerEeoLBVs2MoAVo6l8so4QlgHnM>
[3] Law “On Rehabilitation and Collective Satisfaction of Creditors’ Claims”. 47.1. [Last Viewed Date: December 31, 2022].
[4] Law “On Insolvency Proceedings”. Article, 22.2. [Last Viewed Date: December 31, 2022].
[5] Ibid. Article, 19.1. [Last Viewed Date: December 31, 2022].
[6] Migriauli R., To Critics of the Bankruptcy Law, 2013. Newspaper: Banks and Finances.
[7] See the law “On Bankruptcy Proceedings”, 7.1. [Last Viewed Date: December 31, 2022]
[8] Note: The active role of the court was typical for judicial rehabilitation. In particular, accepting, approving, etc. bankruptcy settlements.
[9] Note: Extra-judicial rehabilitation was carried out with minimal court involvement. Under the law “On Bankruptcy Proceedings” of 1996, only the debtor was entitled to request a postponement of the opening of the bankruptcy proceedings to develop a rehabilitation plan. The postponement to be achieved, the debtor had to prove to the court the possibility of rehabilitation. The role of the court was revealed in the latter’s decision to postpone the opening of the bankruptcy proceedings, considering the rehabilitation to be expedient. See more law “On Bankruptcy Proceedings” of 1996, Article 10.
[10] R. Migriauli, Introduction to Bankruptcy and Insolvency Law, 3rd Revised Edition, Publishing House: World of Lawyers, Tbilisi, 2017. p. 239.
[11] The law “On Bankruptcy Proceedings”, Article 23. [Last Viewed Date: December 31, 2022]
[12] Ketiladze M., The Role of the Court in Accepting the Application for the Rehabilitation Regime, III Online international scie