Law and World (E-Journal) / სამართალი და მსოფლიო
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უძრავ ნივთებზე უფლებების შეძენა თავდაპირველი მესაკუთრის გვერდის ავლით, კეთილსინდისიერების პრინციპის დაცვა თუ თავდაპირველი მესაკუთრის ინტერესის უგულველყოფა
Get PDFCollision of primer owners’ interests and the interest of Acquirer in Good Faith is one of the most important problem in modern civil law. This issue was also discussing by constitutional court of Georgia. Constitutional court has made a very essential and important decision about this problematic issue.7 Despite this, above mentioned problem was not totally solved by constitutional court
PRACTICAL RECOMMENDATIONS FOR EFFECTIVE JUSTICE IN GEORGIA
Get PDFOne of the most important sources of law is case law. Legal norms are like Ariadne’s thread for judges and they should come to the fair decisions in every problematic situation by this thread. The court is a body through which legal norms become alive and that’s why, court decisions are important in every legal system. Effective and uniform case law is the main and compulsory element of every democratic country
უცხოური სამართლის კვალიფიკაციის საკითხი საერთაშორისო კერძო სამართალში
Get PDFForeign law lies at the heart of the Private International Law. After all, the true conflict of law cannot be resolved unless and until the content of the foreign law is established. The article discusses issues concerning qualification of the foreign law and different viewpoints about it. The foreign law must be provided as a fact, well known both in common law countries, as well as throughout the Continent. During the last century this “fact” theory has lost much of its popularity in civil law countries, while in the UK and in other common law jurisdictions it still dominates over cases, legislation and literature discussions
პირადი ცხოვრების საიდუმლოებასა და სამართალწარმოების საჯაროობას შორის ღირებულებითი კონფლიქტი სამოქალაქო საპროცესო ურთიერთობებში
Get PDFThe resolution of conflict of values between public and private interests is particularly relevant in civil procedural relations. Consequently, it is necessary to properly assess this conflict and find appropriate ways to resolve it. Since the right to a public hearing is not an absolute right, it may be restricted for legitimate purposes, including the secrecy of private life. However, the public interest might be so high in certain cases that it exceeds the obligation of confidentiality. The point is that the conflict of private and public interests is resolved considering the specific circumstances, which in each case are different but relate to the weighing of the good and the principle of proportionality
COURTS OR THE LEGISLATURES? MARIJUANA POLICY IN GEORGIA AND THE UNITED STATES
Get PDFWho is to decide? This is the fundamental question facing a democratic republic. A separation of powers is widely accepted in western democracies with legislatures making laws, executives implementing the law, and judges interpreting and applying laws to actual cases and controversies brought before them. But when does the judicial role depart from judging and impermissibly lurch into the realm of policymaking which most people agree is a legislative function? This article examines such questions in reference to recent experience in the Republic of Georgia and the United States regarding the legal status of marijuana. In both countries courts and legislatures have taken decisive and controversial actions regarding the status of cannabis in society. But in so doing, have the judicial and legislative branches respected separation-of powers-principles, or have the lines been the two branches become blurred
გამოხატვის თავისუფლების შეზღუდვა სასამართლოს ავტორიტეტისა და მიუკერძოებლობის დასაცავად (სტრასბურგის სასამართლოს იურისპრუდენციის მიმოხილვა)
Get PDFThis Article concerns the issue of conflict of two important values – freedom of expression, which is one of the pillars of a democratic state, and the public interest in protection of the authority and impartiality of the Judiciary. The Article demonstrates the particular importance of the mentioned topic for Georgia where the society, in general, has easily learned how to enjoy fundamental human rights and freedoms, however, it still has not developed the corresponding legal culture – to always keep in mind the corresponding obligations and responsibilities inherent to each fundamental freedom; and culture not to ignore other legitimate interests and seek the balance between the conflicting values . The Article overviews respective case law of the European Court of Human Rights and the Court’s approaches in two main directions – the scope of admissible criticism towards judiciary, mostly involving judicial authority issues, and the problem of media coverage of ongoing cases, involving impartiality and other issues. There will be analyzed not only those judgments where the Court found justifiable the restrictions imposed on the freedom of expression for the purposes of the protection of the authority and impartiality of the judiciary, but also those ones where Court decided otherwise and found a violation of Art. 10 of the ECHR. The Article includes almost all main concepts, factors, principles, proetcontra proetcontra arguments used by the Court while assessing the balance reached by national authorities in the cases concerning court criticism, such as: doctrine of admissible criticism; difference between the criticism of the court system and the personal assault of particular judges; distinction between a healthy criticism from the outside forces that courts should benefit from, and classical cases of contempt of court; differences between value judgment and proof of facts; obligation to provide a minimum factual basis even for the value judgments; importance to maintain the authority of the judiciary and the public trust; specific issues of the court criticism conducted by a lawyer considering their role in the administration of justice; judicial self-restrain and lack of power to respond to the criticism, etc. In addition, relevant approaches and standards are provided with regard to the second issue, concerning media coverage of ongoing cases. The Author agrees with the ECtHR’s position that parallel pseudo-trials of ongoing cases operated by newspapers or TV shows entails a great risk of violation of presumption of innocence, “prejudgment“ of the cases, influence over the judges and juries and puts into question the public perception that courts are the only proper forums for resolving legal issues. Respectively, usurpation of the court’s role by media should be avoided. The Article indicates that these approaches have roots in English Common law, according to which contempt of court might be committed by publication of material that has a potential to influence in advance the formation of a public opinion on legal merits of a pending case
მოწმის დაკითხვის წესი თანამედროვე ქართულ სამართალში
Get PDFThe research discusses the procedure of witness examination and importance of witnesses in criminal proceedings. The article comprehensively analyzes witness questioning and examination procedures. The author suggests practical recommendations to be considered in the process of witness examination. The paper includes critical evaluation of the procedural code and the authors’s recommendations for the purposes of improving system
სხეულისა და ჯანმრთელობის ხელყოფისთვის მიყენებული არაქონებრივი ზიანის ანაზღაურება
Get PDFCompensating the immaterial damage is a very problematic issue, since this type of damage is invisible and might be difficult to prove. It is also interesting to look at the terminology of the case, as the fact that the both – moral and non-pecuniary damage are used in jurisprudence, causes disagreement. The aim of the given work is to establish sense of immaterial damages, basis of civil justice responsibility for immaterial damages and compensation for such damages due to bodily injury and damage to health. Problematic issues of a non-pecuniary damage will be examined by using normative-dogmatic and comparative legal methods, as well as, by analysis of visions of the leading scholars and that of case law. It is recognized that the law protects absolute human rights, which are closely linked to personal non-property rights, resulting in immaterial damage. The analysis of Georgian civil law has illustrated that the principle of strict determination of damages is in force, in particular, according to paragraph 1 of the Article 413 of the Civil Code, non-pecuniary damage may be claimed only in the cases specified in law in the form of reasonable and just compensation. However, compensation for non-pecuniary damage must be taken into account, as restitution is excluded in this case and monetary compensation serves as the alleviation of suffering of a victim. The recommendation to extend the responsibility to delinquency is also presented with this regard
დამნაშავის შეწყალება ქართულ სისხლის სამართალში - გადასინჯვის მცდელობა
Get PDFThe concept of pardon has long been an important matter of criminal law. But the most topical it becomes during presidential elections in Georgia. Some candidates openly promise to pardon specifi c criminals. These questionable promises can on the other hand serve as a push forward for legal thought and raise a question: considering obvious risks (abuse of power), does the concept of pardon still respond to modern legal standards? Mostly the matter is being approached from the point of presidential powers (Constitutional law). But as an inherent part of criminal law pardon should be rethought through the prism of the goals of punishment which are well defined both in legal science and legislation of Georgia, namely: restoration of justice, prevention of new offence, re-socialization of an offender. Obviously pardon helps to achieve the goal of re-socialization and maybe prevention. But the very same can be achieved by using parole which is much stricter regulated and holds much smaller probability of abuse of power. Despite obvious risks there is still a good reason not to abolish pardon completely. Even hypothetical chance to be pardoned serves as a high hope for a convict. Hope is one of the most important elements that encourages a convicted criminal to fi nd his/her way back to society, elimination of which might definitely cripple his/ her faith making the goal of re-socialization less achievable than ever
ადამიანის უფლებათა საყოველთაო დეკლარაციის როლი და მნიშვნელობა ეროვნულ და საერთაშორისო სამართალში
Get PDFIn 2018 the world celebrated the 70th anniversary of the Universal Declaration of Human Rights, the landmark international document in which the UN Member States agreed and solemnly proclaimed fundamental human rights and freedoms as a “standard to which all nations and states should strive to achieve”. The most debatable and ambiguous issue is the determination of legal status of the Declaration. Considering the fact that this document was adopted by the UN General Assembly in a form of the resolution, it has a recommendatory character. However, over time the Declaration has undergone certain legal transformation regarding the permanent development and refinement in the process of concluding of legally binding international human rights treaties that affected both domestic and international law. Taking into account the moral significance of the Declaration, as well as its the substantial contribution in the adoption of international and regional human rights treaties, national legislation and judicial practice, the author of the present article comes to the conclusion that the Declaration should be recognized as a document including norms of the customary international law. The author also concludes that in modern world, when a number of states have not still ratified the main international human rights treaties, the provisions of the Universal Declaration should be conceived for them as binding norms of customary international law. Such outcomes are established on the basis of the national judicial practice of sovereign states and the practice of the International Court of Justice that are analyzed in the present article