Law and World (E-Journal) / სამართალი და მსოფლიო
Not a member yet
437 research outputs found
Sort by
The Scope of Manufacturer Civil Liability Exemption Due to Risks of Scientific Advancement
Full text linkManufacturers may, under certain conditions, avoid civil liability by invoking the risks associated with scientific advancement as grounds for exemption. This defense requires proof that at the time the product was introduced into the market, prevailing scientific knowledge did not permit the identification of the defect. Originally introduced through the 1985 European Directive and later incorporated into French legislation via Law No. 98-389 on defective products (subsequently amended by Order No. 2016-131 concerning the reform of contract law, general regime, and proof of obligations), this provision has not yet been adopted in Algerian civil law. Even after the 2005 amendment to Algeria’s civil code, which introduced Article 140 bis on manufacturer liability, the Algerian legal framework, including its consumer protection laws, makes only implicit references to this exemption. Accordingly, The Algerian legislator should determine whether scientific advancements justify exemption, Accordingly, the Algerian legislator should adopt a stance on the risks posed by scientific advancements and the extent to which they can be considered grounds for exemption from liability. This is in line with modern legislations that substantiate this defense, as well as French jurisprudence, which has emphasized the necessity of relying on the risks of scientific advancement to absolve the producer from liability. This is based on the premise that disregarding this defense would hinder development and progress, ultimately obstructing industry, given the relativity and continuous evolution of scientific knowledge. To address these various risks, a comprehensive compensation system supported by insurance companies should be established.
Keywords: Scientific Development Risks, Manufacturer Liability, State of Scientific Knowledge, Duty of Traceability.
Introduction
Technological advancements have catalyzed substantial transformations across industrial sectors, leading to increased consumer reliance on a wide range of products. While these products aim to enhance the quality of life, they also carry potential risks—both apparent and latent—that can directly endanger consumers’ health and financial stability. In response, legislators have enacted civil liability frameworks aimed at balancing the interests of manufacturers and consumers. However, as these liability frameworks have occasionally proven insufficient in providing robust protection to affected parties, supplementary civil liability principles have emerged. These principles, tailored specifically for defective products, strive to ensure adequate recourse for affected consumers, with compensation remaining a central objective.
Despite these evolving frameworks, manufacturers still retain the right to mitigate liability through established defenses under general principles of law. Among these is the scientific development risk defense, which allows manufacturers to argue that, at the time of distribution, scientific and technical knowledge did not allow for the identification of product defects. This defense has become increasingly significant as technological advancements integrate scientific knowledge into production processes across diverse industries. While these advancements have undeniably enhanced convenience and efficiency, they have also introduced unforeseen risks that manufacturers cannot entirely predict, even when fulfilling all legal obligations. Consequently, legal scholars and courts have recognized the need to institutionalize this defense within legislative frameworks, thereby acknowledging the limitations posed by scientific unpredictability.
This study seeks to examine an evolving aspect of civil liability—namely, the exemptions and limitations on liability imposed due to the uncontrollable risks arising from continuous scientific progress. The central research question investigates the extent to which manufacturers can invoke scientific development risks to negate civil liability.
The methodological approach of this study is analytical, focusing on an examination of relevant legal texts and a comparative analysis of French and Algerian law, recognizing that many of the statutes governing this type of liability have origins in French legal precedents.
1. The Concept of Scientific Development Risks
This section elucidates the concept of scientific development risks, structuring the analysis into two parts: first, a definitional framework for scientific development risks, and second, an exploration of relevant legislative perspectives.
1.1. Definition of Scientific Development Risks
The invocation of scientific development risks as a defense to negate civil liability is a relatively recent defense within product liability law. This defense is predicated on the manufacturer’s inability to foresee certain defects due to the prevailing limitations of scientific and technical knowledge at the time of the product’s circulation. To delineate this concept, this part is divided into two subsections: the doctrinal interpretation of scientific development risks and the legal definition.
1.1.1. Jurisprudential Definition of Scientific Development Risks
In legal scholarship, multiple terms have been employed to characterize this defense, including “developmental risks,” “technological advancement risks,” and “scientific development risks”.[1] Hassan Abdelrahman Quddous conceptualizes these risks as stemming from a deficiency in scientific and technical knowledge that precludes the manufacturer from identifying a product’s latent defects at the time of distribution, thereby obstructing an anticipatory understanding of its inherent risks.[2] In contrast, Ph. Le Tourneau critiques the nomenclature “development risks,” arguing that it is not the risk itself that constitutes a defense but rather the latent defect undetectable at the point of market introduction.[3]
Further academic definitions regard scientific development risks as those potential hazards that remain indiscernible until after the product has been commercialized—a situation exacerbated by the accelerated evolution of scientific and technological knowledge. This rapid innovation frequently results in products or treatments with delayed adverse effects that only become evident in subsequent stages of use.[4] Notably, “scientific development risks” do not imply the inherent hazards of innovation per se; rather, they refer to the subsequent discovery of risks through advancements in scientific understanding.[5]
1.1.2. Legal definition
The legal foundation of scientific development risks as an exculpatory defense first emerged in the 1985 European Product Liability Directive, where Article 7 states that “the producer shall not be liable if it proves that the state of scientific and technical knowledge at the time the product was put into circulation was insufficient to detect the defect”. French civil law enshrines this defense under Article 1245-10 of the Civil Code, which specifies that “the producer is strictly liable unless it proves… that the scientific and technical knowledge available at the time of marketing was inadequate to reveal the defect”.
Several legislative initiatives have subsequently institutionalized this defense. For example, J. Ghestin’s 1988 proposal and the 1993 CATALA project supported this exculpatory principle, highlighting the necessity for a post-market traceability obligation, requiring manufacturers to monitor potential latent defects and notify consumers should such risks be identified.
The European Court of Justice (ECJ) further refined the scope of this definition in a 1997 ruling, stipulating that scientific development risks should be assessed based on global scientific and technical knowledge rather than being confined to national or sector-specific standards. German jurisprudence also addresses scientific development risks, particularly in the context of pharmaceuticals, under the Pharmaceutical Products Act of August 24, 1976, mandating safeguards against undiscovered adverse effects in medicinal products.
The concept of “scientific development risks” holds particular pertinence in the pharmaceutical sector, where medicinal products—despite their regulatory compliance and adherence to pharmacovigilance requirements—may later be discovered to have unforeseen side effects. The thalidomide tragedy is a paradigmatic case: marketed initially by a German pharmaceutical company as a safe anti-nausea drug for pregnant women, thalidomide was later found to cause severe congenital disabilities. Although initially compliant with scientific safety standards, its latent risks only became apparent through post-market surveillance and continued scientific evaluation. This incident led to the drug’s withdrawal from the market and prompted amendments in German law, excluding pharmaceutical products from the scientific development risk exemption under the Pharmaceutical Products Act of August 24, 1976.
1.2. Legislative Stances on Scientific Development Risks
The debate surrounding the inclusion of scientific development risks as a defense within the framework of the European Directive has been extensive, with Germany leading in its adoption and other legal systems subsequently following suit. This section provides a comparative analysis of the French and Algerian legislative responses to scientific development risks.
1.2.1. The French Legislative Stance
France initially hesitated to recognize scientific development risks as grounds for exemption from manufacturer liability, which delayed its incorporation of the European Directive until 1998[6]. The French Parliament expressed reservations, particularly after the Bovine Spongiform Encephalopathy (BSE) crisis, or “mad cow disease,” raised public concerns about product safety. Nevertheless, economic and scientific pressures, combined with significant lobbying from insurance companies, ultimately swayed the government to adopt this exemption. As a result, Article 1386-11-4[7] of the French Civil Code now provides manufacturers the opportunity to evade liability by demonstrating that, at the time of the product’s release, the state of scientific and technical knowledge did not allow for defect detection. This provision, however, has not been without controversy, as some critics argue it undermines the objective nature of product liability.[8]
Article 1386-11-4 specifically stipulates: “The producer shall be liable by law unless it proves that the state of scientific and technical knowledge at the time of the product’s release did not permit the discovery of the defect”. This provision closely mirrors Article 7 of the European Directive. Notably, this defense cannot be invoked in cases involving damage to human organs or products derived from human tissue, as clarified by Article 1386-12,[9] a distinction that will be discussed in greater detail in Section Two.
Through this legislative move, the French legislator introduces an innovative foreign cause for liability exemption, diverging from traditional conceptions of exonerative causes. This exemption is accessible to any “producer” as defined in Article 1386-6 of the French Civil Code, encompassing manufacturers of final products, component manufacturers, and other professionals in the supply chain. Conversely, entities outside the scope of “producers,” as specified in Article 1386-3—such as real estate developers and sellers of construction real Estate, cannot invoke scientific development risks as a defense, as their liability is governed by Articles 1792-6 and 1386-1.
Under Article 1386-12-2 of the French Civil Code.[10] manufacturers are precluded from using scientific development risks as a defense if they fail to notify consumers, by all possible means, about latent product risks once advancements in technical knowledge enable the identification of such risks or necessitate a product recall. Additionally, Article 1386-12-1[11] mandates that the defense is void if the manufacturer has not taken sufficient measures within ten years of the product’s release to mitigate potential adverse effects.
These provisions impose an obligation of traceability on manufacturers, requiring continuous monitoring of scientific developments relevant to their products. This obligation reflects the precautionary principle increasingly prevalent in contemporary liability law, underscoring the duty of vigilance and proactive risk management expected of modern manufacturers.[12]
Therefore, the rationale for the French legislator’s adoption of this provision and the distinction made between defects that appear subsequently is aimed at clarifying whether scientific development risks constitute valid grounds for liability exemption. However, this approach appears to lack soundness.[13]
1.2.2. The Algerian Legislative Stance
The Algerian legal code does not expressly incorporate the defense of scientific development risks within its civil liability provisions, as amended in 2005. However, the acknowledgment of such risks is implied within certain executive decrees. Specifically, Article 9 of Executive Decree No. 97-37[14] articulates that “considerations related to technical and/or technological advancement may necessitate adjustments to the list of substances authorized for use in cosmetics manufacturing”.
This stipulation suggests that Algerian legislation recognizes the impacts of scientific and technological advances on regulatory frameworks, albeit with certain limitations:
The regulation is confined to the cosmetics and personal hygiene sectors.
It specifically addresses the list of substances authorized or prohibited in the production of cosmetics, thus not extending as a universal principle applicable across all product categories.[15]
Further legislative nuances regarding the acknowledgment of scientific and technological risks are delineated in Article 6[16] of Executive Decree No. 12-203, dated May 6, 2012, which sets forth safety standards for consumer products. This article mandates that “the conformity of a good or service with mandatory safety requirements must be assessed against the potential risks to consumer health and safety”. This assessment must account for:
Applicable regulations and standards,
The prevailing state of knowledge and technology.
Additionally, Article 12 of Executive Decree No. 91-04[17] enforces that “the sale of any materials intended for contact with food is prohibited unless manufactured according to good manufacturing practices”.
These provisions underscore that the term “good” in the context of manufacturing practices implies a requirement for compliance with sophisticated scientific standards, not merely conventional norms.
2. Limitations on Liability Exemption Due to Scientific Development Risks
The adoption of scientific development risks as grounds for negating a manufacturer’s civil liability is constrained by key legislative exceptions aimed at protecting consumer welfare, especially with regard to products posing substantial health risks. Germany was a pioneer in articulating these limitations through a landmark ruling by the Federal Court of Justice, most notably encapsulated in the Hühnerpest decision.[18] This section examines these specific exceptions in detail.
2.1. Products Related to the Human Body and Derivatives
Liability exemptions for products associated with the human body or derived from it are strictly defined, reflecting a legal doctrine that mitigates risks associated with these biologically sensitive products. This part first outlines the scope and definition of such products and then analyzes the applicability of the exemptions in this context.
2.1.1. Definition of Human Body Products and Derivatives
The French legislator delineates products related to the human body in Article 793, paragraph one of the French Public Health Code.[19] However, this legislation does not offer an exhaustive list, leading to interpretive challenges regarding which components are included under the definition of human body elements. Under French law, such products encompass all anatomical components, including cells, bones, tissues, and blood.[20]
Derivatives of human body products generally consist of genetically engineered materials produced through biotechnological processes, primarily utilized in pharmaceutical manufacturing. Within the broader legal framework, these derivatives are effectively treated as medications.[21]
2.1.2. Scope of the Exemption
Article 1245-11 of the French Civil Code explicitly provides that “the producer cannot invoke the exemption provided in clause four of Article 1245-10 when the damage arises from an element of the human body or its derivatives”.[22] This framework was first institutionalized in Germany and reaffirmed in the Contargan case (Thalidomide), where a pharmaceutical caused congenital deformities in unborn children. Initially, the teratogenic effects of the drug were not evident, but as adverse effects emerged, the manufacturer was legally compelled to compensate the affected parties.[23]
In addition, Article 16, paragraph one, of the French Civil Code underscores that the human body and its elements are not subject to proprietary rights. This principle was reinforced by the French Court of Cassation in its ruling following the contaminated blood scandal,[24] where it held that an intrinsic defect in blood, even if undetectable, does not justify an exemption from liability.[25]
French legislation makes no distinction between products directly extracted from the human body (e.g., blood, tissues, and cells) and those subject to laboratory modification. Certain biologically derived products, such as insulin,[26] are classified as medications, raising questions regarding whether these products qualify as human body derivatives, thereby excluding manufacturers from invoking scientific development risks as grounds for exemption.
The enactment of the Law of February 26, 2007, and Directive of April 26, 2007, classified various human-derived products as pharmaceuticals under Article 5121-3 of the French Public Health Code. Exceptions were established for organs, tissues, cells, and labile blood products—defined as those with a shelf life not exceeding one year.[27]
In its jurisprudence related to the contaminated blood case, the French Court of Cassation upheld that “an internal defect in blood, even if undetectable, does not constitute grounds for liability exemption”. Nevertheless, pharmaceutical producers continue to benefit from liability exemptions. Article 1386-12-1 further specifies that producers cannot absolve themselves of liability by invoking scientific development risks if the damage arises from an element of the human body or its derivatives. This clause applies, for instance, to cases involving the removal and use of human organs by blood transfusion centers, sperm banks, and organ transplant centers, a principle affirmed by the French Court of Cassation on July 9, 1996.
The French Minister of Justice presented a proposal to the National Assembly advocating for the exclusion of pharmaceutical products from the scientific development risk exemption. Although this proposal initially passed in the preliminary voting stage, it was ultimately rejected in the final vote. Nonetheless, the Assembly approved the exclusion of human body components and their derivatives from the scope of the scientific development risk exemption.
2.2. The Obligation of Traceability
The legislation mandates a traceability obligation for manufacturers, compelling them to monitor their products post-distribution when subsequent scientific and technical knowledge uncovers emergent risks that could harm consumers. Failure to fulfill this obligation triggers manufacturer liability. This responsibility, known as l’obligation de suivi, is integral to modern product liability law.
2.2.1. Definition of Traceability Obligation
The French legislator has established a continuous monitoring duty[28] for manufacturers, which is an extension of the precautionary principle articulated in the Algerian law. Specifically, Article 3, paragraph 6 of Algeria’s Law No. 06-10[29] states: “The precautionary principle obliges that the absence of current technologies, due to the state of scientific and technical knowledge, should not delay the implementation of cost-effective, proportionate measures to prevent significant environmental damage”. This principle, although primarily applied in environmental protection contexts in Algeria, has broader implications in product safety under French law.
This traceability obligation compels manufacturers to keep track of their products post-market in light of evolving scientific and technical information that may reveal new risks.
The Algerian legislator provides a comprehensive definition of traceability in Article 5 of Executive Decree No. 12-203,[30] which states: “Traceability is the process that enables the tracking of a product’s movement through production, packaging, and importation, while also identifying the producer, importer, intermediaries in distribution, and final purchasers through documentation”. In the service sector, traceability is similarly defined as “the documentation of each stage of service provision for the consumer benefiting from it”.
2.2.2. The Traceability Obligation in French Lawtainable Urban Planning Results
The approach of the French legislator to the traceability obligation can be understood in two distinct stages:
Pre-2004 amendments under Law No. 98-389 addressing defective products.
Post-2004 amendments to the French Civil Code.[31]
A. Traceability Obligation under Law No. 98-389 on Defective Products
Law No. 98-389 established an early form of the traceability obligation in Article 1386-12, paragra
DIGITIZATION OF LEGAL AID SERVICES AND CRIMINAL JUSTICE TO THE DETAINEES IN INDIA
Full text linkThis paper presents a micro-study of the scheme of legal aid services and the impact of its digitization on the administration of criminal justice in India based on the case study of the District Legal Services Authority (DLSA) of Surguja at Ambikapur in Chhattisgarh State (India). This DLSA has been found to suffer from proper empanelment, allotment and monitoring of criminal defense counsels to the detainees. The empanelled defense counsels have been reluctant to pursue the case of detainees at the bail and trial stages. Resultantly, fair criminal trial according to the due process of law has been compromised, the fundamental guarantee to free defense counsel has been threatened and public trust in the criminal justice system has been deteriorated. Heeding the reports and judicial directions, the Union Ministry of Law and Justice has introduced the digitization of legal aid services of all authorities and committees established under the NALSA Act, 1987. The website portals and mobile applications have been brought upon to facilitate the beneficiaries to apply for free legal aid and know about actions taken therein. Nonetheless, these endeavours have been found inadequate in the mission of administration of criminal justice particularly for the detainees.
Keywords: Digitization of Legal Aid services, empanelment, allotment and monitoring of criminal defense counsels, fair criminal trial, due process of law, detainees
Introduction
The criminal justice system of every democracy is composed of four typical government institutions such as police, prosecution, court and prison across the world. These institutions are established, maintained and administered by the State. The State decides the legal frameworks to dispense criminal justice within its territorial limits. Eventually, the State organization holds extraordinary positive and negative actions in the domain of criminal justice; positive actions of the State connote the exercise of reformative powers by the State to uphold the due procedure of law that protects the rights of accused persons in criminal matters, whereas, negative actions of the State refer exercise of coercive powers by the State in the criminal matters[1] that invades the liberty of the accused persons.[2] The accused person is the epicenter of the jigsaw puzzle from the beginning till the end in a criminal proceeding.[3] The due procedure of law emanates indispensable set of rights to an accused person that protects his liberty and human dignity before the criminal justice institutions across the world including India. An arrested person shall have right to be informed about the grounds of such arrest before his detention in custody and right to consult and defended by a legal practitioner of his choice,[4] and right to be produced before the Magistrate within 24 hours.[5] Deprival of any of these rights would turn the detention unlawful and ensue right to the accused person to be compensated from the State.[6] Right to be presumed innocent until guilt is proved,[7] trial by competent-impartial-open courts[8]and equal opportunity to be defended through a lawyer of his choice or State sponsored criminal defense lawyer[9] are another sets of rights of accused persons. Practically, as far as the exercise of right to defense of an accused person is concerned, he gets limited opportunity[10] as compared to mighty prosecuting wings of the State on the plot of the criminal proceedings.[11] The prosecuting State appoints and maintains ten-fold organized, experienced and trained paid prosecution lawyers to plead against the accused.[12] Only those accused persons may enjoy the universally articulated and municipally guaranteed rights relating to criminal justice who have sufficient means to hire a lawyer of their choice for defense. But an accused who has no sufficient means to hire experienced and trained attorneys to speak for their causes receive gross ignorance on the plot of criminal justice. It takes him in a dock position[13] where he is unaware of the complex procedure and legal language of the court[14] and to understand courtroom rituals and formalities.[15] This scenario becomes meagre when such an accused person is detained in prison and facing a criminal trial. To uphold fair criminal trial according to due process of law and commitments of the International Covenant on Civil and Political Rights (hereafter ICCPR), criminal defense lawyers at the State’s cost are allotted to the detainees in India either by order of the court or at the request of detainees to the Legal Services Institutions (hereafter LSIs) established under the National Legal Services Authorities Act, 1987 (hereafter NALSA Act).
The District Legal Services Authorities (hereafter DLSAs) play a vital role in offering free legal services to the detainees because the pendency of criminal cases in District and Taluka criminal courts is significantly higher than in other courts in India. Table-I is produced to understand this scenario:
Separate data regarding a number of defense lawyers allotted to the detainees by order of the court or at application of detainees has not been displayed either by the National Legal Services Authority (hereafter NALSA), the State Legal Services Authorities (hereafter SLSA) or DLSAs. Further, the LSIs have not published the list of criminal panel lawyers and retainer lawyers. As such, it becomes difficult to present a categorical description of legal services provided to the detainees by the Surguja District Legal Services Authority to assess the convenient access of detainees to the DLSA to get defense lawyer of their choice in criminal trials.
State-sponsored legal aid to detainees has been recognized as an indispensable part of criminal justice administration across the world. It is a recognized human right as well as a fundamental right of detainees in democratic countries like India. State-sponsored legal aid to the detainees ensures the administration of fair criminal trial and due process of law. Notwithstanding the statutory scheme of legal aid services, Indian legal aid services have always been a serious topic of debate. A transparent and accountable mechanism for the appointment and allotment of lawyers is one of the issues, whereas monitoring such lawyers is another issue that has to be taken care of.
This paper aims to assess the functioning of Surguja District Legal Services Authority to empanel, allot and monitor legal aid lawyers to the detainees. This paper will also investigate the impact of the digitization of DLSA’s legal aid services on dispensing criminal justice to detainees. This paper has been divided into five sections. Section-1 is the introduction, section-2 is the origin and development of state-sponsored defense counsel, section-3 describes the empanelment and allotment of defense lawyers to the detainees by the DLSA, section-4 is the interview of officers of DLSA, Legal Aid Counsels (LACs) and beneficiaries of Surguja district (Chhattisgarh State of India) to assess the impact of digitization on the functioning of DLSA, and section-5 is the conclusion and suggestions.
1. STATE SPONSORED DEFENSE COUNSEL: ORIGIN AND DEVELOPMENT
The criminal trial procedure has traversed from three phases in juridical history. The criminal trial began with the accusatorial system in almost all countries, the then inquisitorial system appeared in the second phase, and nowadays, in the third phase, a mixed system is in operation.[16] The Anglo-American criminal trial procedure is accusatorial/ adversarial, and the inquisitorial criminal trial procedure is followed in the European continental countries except UK.[17] In the accusatorial/adversarial system the judge has no authority to decide its jurisdiction or obtain proofs on his initiatives instead he has to superintend the combats and rely inactively on the averments of the prosecution and defense to determine the criminal liability.[18] The prosecution and defense are private acts of the parties in this system. On the other side, the prosecution and detention are exclusively entrusted to the State agencies, and the State appointed judge actively participates in the inquisitorial system to discover the perpetrator bringing personal inquiries besides evidence produced by the parties.[19] The secret inquires are conducted, and torture is resorted upon the accused person to gather evidence against him. This system deprives the accused person of his right to defend himself. Nowadays, most criminal justice systems worldwide have adopted a mix of these two criminal procedures, borrowing the best elements from each. The accusation has been made over to the public prosecutors from the parties and judges. Judges are prohibited either to stay inactive or become proactive in the criminal trial procedures. They have been made duty bound to commence preliminary inquiry to assert the veracity of the case before arriving at the administrative-type decisions, and rationally apply their wisdom to the admissibility or inadmissibility of evidences produced before them. Initially, India inherited Anglo accusatorial/ adversarial criminal trial procedures, but later on, it switched to the mixed criminal trial procedure system.
Thus, progress in judicial civilization has created permanent prosecutorial organs of the State, such as public prosecutors, authorized them to prosecute the accused person in the criminal courts on behalf of the general welfare, and made victim parties secondary to prosecuting the accused person.[20] The accused has been brought into direct and unequal confrontation with the tenfold experienced State prosecutor. With the rise of criminal justice canons, the State sponsored defense lawyers for indigent detainees, and the State funded free defense lawyers for the detainees became integral parts of a fair trial and due process of law.
State-sponsored free legal aid to poor detainees is a universally recognized human right and municipally guaranteed fundamental and legal rights. Legal aid is an essential precondition for the exercise and enjoyment of a number of human rights, and it is an essential component of a fair and efficient criminal justice system founded on the rule of law to safeguard fairness and public trust in the administration of criminal justice.[21] Justice Black had underlined the necessity of legal aid in the Gideon v. Wainwright[22] that poor persons who cannot hire a lawyer and have been brought before the adversarial system of criminal justice cannot be assured equality before the law and a fair trial unless a defense counsel is provided to assist him. Free legal assistance has been recognized as an essential component of the right to a fair trial in several international and regional human rights treaties viz. under article 14 (3) (d) of the ICCPR, 1966; under article18 (3)(d) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families; under article 6 (3)(c) of the European Convention on Human Rights and under article 8(2)(e) of the American Convention on Human Rights.
At the early stage of criminal trial systems, accusation or defense was purely private action. With the transformation in the judicial system, the concept of ‘social accusation’ and ‘social defense’ grew up. The former Soviet Union, for example, acknowledged the scheme of ‘social accusation’ as well as ‘social defense’ of accused persons by their colleague coworkers depending upon their depreciation and appreciation of the accused’s moral character.[23] It began recognizing the public’s interest in criminal trials equally on accusation and defense levels. Statutorily, the State-sponsored legal aid scheme for poor litigants dates back to 1851 in France through enactment in the modern sense. The legal aid schemes for poor litigants grew around the world in the twentieth and twenty-first centuries. The French enactment of 1801 enumerated the eligibility of beneficiaries under this programme. Corresponding to the French scheme, Italy (in 1865) and Germany (in 1877) also brought similar programmes allowing judges to appoint defense counsels to impoverished defendants.[24] Before the mid-nineteenth century, the legal aid to the poor litigants was purely charity. The French reform in 1972 substituted State-funded legal aid to the poor litigants for bare charity.[25] The UK enacted the Poor Prisoners’ Defence Act, 1903, empowering the courts to grant legal aid to indigent prisoners at committal proceedings. Further, the Poor Prisoners’ Defence Act of 1930 removed this requirement and reserved the grant of legal aid by the courts in the ‘interest of justice’ only. On the recommendation of the Rushcliffe Committee (1944), the Legal Aid and Advice Act of 1949, has added a ‘means test’ into the ‘interest of justice.’ On the recommendation of the Widgery Committee Report on legal aid in criminal proceedings (1966), the Legal Advice and Assistance Act of 1972 established a duty-solicitor scheme in the lower courts to provide legal aid to poor defendants at the courts’ discretion. The legal aid scheme was further strengthened in the UK by the Legal Aid Act of 1974 and the Legal Aid Act of 1982. The Legal Aid, Sentencing and Punishment of Offenders Act, 2012 (LASPO) is the recent Act in the UK under which the legal aid scheme is governed.
The criminal justice administration in India is a State subject.[26] Nevertheless, article 39A of the Indian Constitution directs the State to make the policy by law to provide ‘free legal aid’ to needy persons at the expense of the State. In the M.H. Hoskot v. State of Maharashtra,[27] Justice Krishna Iyer observed that providing free legal aid is the State’s duty, not the Government’s charity. The State shall appoint competent counsel to the prisoner if he cannot engage a lawyer on reasonable grounds such as indigence or in communicado situation for the ends of justice. Such lawyer shall be paid such sum as the court may equitably fix. In the Hussainara Khatoon v. State of Bihar,[28] Chief Justice P.N.Bhagwati has ruled that the grounds and procedure to deprive a person of his life or liberty should be \u27just, fair and reasonable’. Emphasizing upon article 39A, he further observed that the free legal services to the poor and the needy are an essential element of any ‘just, fair and reasonable’ procedure; it must be held implicit in the guarantee of Art. 21. In the Khatri v. State of Bihar,[29] Chief Justice P.N.Bhagwati has ruled that the right to free legal services is an essential ingredient of just, fair and reasonable procedure for a person accused of an offence, and it is implicit in the guarantee of Article 21. The State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided that the accused person does not object to appointment of such lawyer. The State cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative hardships. In the State of Maharashtra v. Manubhai Pragaji Vashi,[30] the Supreme Court has made it quite clear that it is now well-established rule of law that the failure to provide free legal aid to an accused at the cost of the State, unless refused by the accused, would vitiate the trial.
On the recommendations of Justice Iyer Committee on Legal Aid (1973) and Justice Bhagawati Committee for Implementing Legal Aid Schemes, the Parliament of India has enacted the National Legal Services Authorities Act of 1987. This Act has constituted permanent legal services institutions viz. the NALSA, the SLSA, the DLSA, the Taluka Legal Services Authority (TALSA), the Supreme Court Legal Services Committee (SCLSC) and the High Court Legal Services Committee (HCLSC). The procedure for the empanelment and allotment of legal aid counsels by these institutions has been described under the NALSA Act, 1987. Section 12 of this Act spells ‘means test’ for the beneficiaries, which under clause (g) includes detainees eligible for State-sponsored defense lawyers without any discrimination as to caste, sex, income or nature of the offence charged with.
2. EMPANELMENT AND ALLOTMENT OF DEFENSE COUNSEL BY THE DLSA
To empanel lawyers at the DLSA for a maximum period of three years,[31] the DLSA has to invite applications, accompanied with proof of the professional experience and preference of type of cases to be entrusted with,[32] from legal practitioners not having less than three years experience at the bar.[33] These applications are scrutinized and selection of the panel lawyers for the District and Taluka level is made by the Executive Chairman or Chairman of the DLSA in consultation with the District Attorney or Government Pleader and the Monitoring and Mentoring Committee at the DLSA.[34] While selecting panel lawyers, the Executive Chairman or Chairman of the DLSA has to consider competency, integrity, suitability and experience of lawyers[35] as well as representation of the Scheduled Castes, the Scheduled Tribes, women and differently-abled lawyers in the panel.[36] This list of panel lawyers is further approved by the Executive Chairman of the State Legal Services Authority.[37] The Executive Chairman or Chairman of the DLSA has to maintain separate panels for dealing with different types of cases like Civil, Criminal, Constitutional Law, Environmental Law, Labour Laws, Matrimonial disputes, Juvenile Justice, etc.[38] However, the Member-Secretary or Secretary of the DLSA may assign a case to a panel lawyer other than for which he has been empanelled.[39] For a period fixed by the Executive Chairman of the SLSA, and with his consultation, the chairman of DLSA may designate maximum ten Retainer Lawyers out of the panel lawyers at honorarium of minimum fifteen thousand rupees per month in addition to the honorarium or fee payable to him for the cases entrusted by the DLSA.[40] A panel or retainer lawyer may be withdrawn or may withdraw from a case by order of the Member-Secretary or Secretary of the DLSA.[41] Performance of panel lawyers has to be supervised by the Monitoring and Mentoring Committee at the DLSA[42] and they should be periodically trained as per modules prepared by the NALSA and the SLSA.[43]
As far as allotment of criminal defense lawyers is concerned, the DLSA does it either by order of the court or at the request of the accused person. The accused person gets defense lawyer from the DLSA in Sessions trial and Magistrate trial by order of the concerned court if he is not represented by a lawyer and the court is satisfied that he has no sufficient means to engage a lawyer.[44] On the other side, on its satisfaction that there is prima facie case to defend,[45] the DLSA allocates defense lawyer at the request of accused person who is a member of Schedule Caste of Schedule Tribe, a woman or child, disabled, in custody, or having annual income less than rupees nine thousand.[46] The Indian scheme of defense counsel to the detainees makes no distinction as to his caste, sex, age or annual income. He is entitled to a defence lawyer from the DLSA. If any detainee is applying to the DLSA for defense counsel, the DLSA has to provide him skilled defense counsel of his choice without inquiring his caste, sex or annual income. The detainee has the right to replace defense counsel from the DLSA if he is complaining that the previously allotted counsel is not satisfactorily defending his case.
3. IMPACT OF DIGITIZATION ON DLSA: INTERVIEW OF OFFICERS, LACs AND BENEFICIARIES OF SURGUJA (CHHATTISGARH STATE OF INDIA)
An intensive interview of the DLSA’s officers, Legal Aid Counsels (LACs), and beneficiaries of Surguja district has been conducted in this research work to assess impact of digitization on functioning of DLSA to dispense criminal justice to detainees. The size of sample chosen for this work is 67, which includes officers, LACs, and beneficiaries as target group. Separate questionnaires have been designed and served to these target groups.
3.1 INTERVIEW OF OFFICERS OF THE SURGUJA DLSA AT AMBIKAPUR
The chairperson and secretary of Surguja DLSA rightly refused to fill out the questionnaire; however, they participated in an oral interview. One clerk of Surguja DLSA has filled out the questionnaire. They were questioned about the procedure of appointment of LACs and Retainer Counsels (RCs), allotment of defense counsels to the detainees, monitoring of defense counsels and use of digital technologies to execute mandates of the NALSA Act, 1987. We get very shocking results. They said they invite applications for empanelment of LACs through the district bar only. They don’t invite applications from interested lawyers through advertisement publishing on their websites or newspapers. They consider applications forwarded by bar only, not individual applications. They don’t entertain interviews of applicants. They don’t look into lawyers’ commitment to social justice. Empanelment of lawyers is done very casually under the pressure of the district bar association. They give the least weight to new advocates with at least three years of bar experience. They appeared very reluctant about the appointment of RCs. They accepted that they don’t classify RCs and LACs according to expertise in civil, criminal and revenue matters and do allotment of defense counsels to the detainees without considering the choice of the detainees and expertise area of the counsels. They don’t accept online applications filed through the website or the Nyay Bandhu mobile App recently launched by the Ministry of Law and Justice of the Government of India. The DLSA website is non-functional for online applications, and DLSA o
Development in Parliamentary Oversight of Government Work in Light of the 2020 Constitutional Amendment (Algeria)
Full text linkIn most comparative law systems, the role of parliament is not limited to issuing various types of legislation and improving the legislative framework. It goes beyond its fundamental function of legislating to include another important role: oversight, specifically the restraining role over the actions of government members in certain cases defined by the Constitution. Parliament exercises this oversight role alongside its legislative function. It is also important in maintaining public interest and evaluating the government’s work by questioning its members on the progress and execution of agreed-upon projects.
Referring to the Algerian system, we find that the Algerian Parliament, which consists of two chambers—the National People’s Assembly (APN) and the Council of the Nation—exercises oversight over the government’s actions. The first chamber, the APN, primarily does this. Consequently, this type of oversight may sometimes lead to political accountability, which can result in either the resignation of the Prime Minister or the dissolution of the first chamber of parliament. These mechanisms include the motion of censure and the interpellation process.
Keywords:Parliamentary oversight, political responsibility, public policy statement, oversight petition, no-confidence, questioning.
Introduction
The function of the parliament is embodied in two main roles: legislating laws and parliamentary oversight of the government’s actions. The latter, parliamentary oversight, has become a central concept in any democratic political system. Some even consider it more important than legislative work because it embodies the principle of the people’s sovereignty and their right to oversee the actions and management of state institutions, thereby protecting individual rights and freedoms. This type of oversight has been constitutionally affirmed to ensure and entrench the legitimacy of the executive authority’s practices.
Parliamentary oversight refers to the parliament’s authority to investigate the actions of the executive authority to ensure the proper implementation of laws, identify errors, and hold those responsible accountable. It also refers to the legislative authority’s power to investigate the actions of the executive apparatus in order to uncover any improper execution of general rules in the state, identify those responsible, and question them.
Referring to the Algerian Constitution of 2020,[1]we find that it acknowledges the parliament’s authority to oversee the government’s actions through various means and mechanisms. These include tools that do not result in political responsibility for the government, such as questions and investigative committees, and others that do result in political responsibility, such as the motion of censure and the interpellation. The latter is a new addition to the 2020 Constitution, as it was previously among the tools that did not entail political responsibility for the government.
The importance of parliamentary oversight lies in ensuring the proper implementation of the government’s action plan, according to what was presented at the start of the government’s work, to ensure that the government does not deviate from the proposed plan. Parliamentary oversight aims to rationalize the government’s domestic and foreign policies and ensure they serve the public interest.[2]
Based on the above, we may ask about the effectiveness of the innovations introduced by the 2020 constitutional amendment in government oversight.
To address the abovementioned issue, we will rely on the descriptive method to outline the necessary definitions and the various mechanisms used in parliamentary oversight. Additionally, we will use both historical and comparative approaches concerning the successive Algerian constitutions and their amendments by highlighting the previously used method and how it has evolved under the 2020 Constitution.
To answer the posed issue, we will follow a dual approach by addressing the following:
- First Chapter: The role of the parliament in monitoring the government’s plan and discussing the general policy statement.
- Second Chapter: The impact of the motion of censure and interpellation on establishing the government’s responsibility.
1. The Role of the Parliament in Monitoring the Government’s Plan and Discussing the General Policy Statement
The parliament plays an important role by exercising its parliamentary oversight over the government’s actions, ensuring that they align well and consistently with what was previously declared in the government’s action plan or program through its approval (First Requirement) and by discussing the general policy statement one year after the presentation of the government’s action plan (Second Requirement).
1.1. Presenting the Government’s Plan to the Parliament and the Impact of Its Discussion
The Algerian constitutional system mandates that the government’s action plan or program, depending on the situation, must be presented to the parliament after being reviewed by the Council of Ministers for approval (First Subsection). Consequently, when presented to the parliament, or more specifically to the members of the People’s National Assembly, it will be subject to discussion, which may conclude with either its approval or rejection (Second Subsection).
1.1.1. The Government’s Action Plan or Government Program
After the President appoints the Prime Minister or Head of Government, depending on the case, and the members of the government,[3] the latter prepares its action plan or program, as appropriate. This plan is of significant importance because it represents the comprehensive strategic framework for all executive sectors, defining how they will operate and manage their activities.[4] Once prepared, the Prime Minister or Head of Government presents it to the Council of Ministers for approval, as stipulated in Article 105 of the 2020 Constitutional Amendment. This procedure constitutes the first official action undertaken by the government and represents the standard practice for initiating its activities. This mechanism is crucial because the action plan represents the general strategic framework that includes all sectors and outlines how they will operate and manage their activities, thus requiring parliamentary approval.
It is important to note that after the 2020 constitutional amendment, the government’s action plan varies according to the parliamentary majority. If it pertains to the Prime Minister, the action plan aligns with the presidential program. Conversely, if it pertains to the Head of Government, the action plan aligns with the parliamentary majority’s program.
After the Prime Minister or Head of Government presents the government’s action plan to the Council of Ministers, it is then submitted to the People’s National Assembly for approval, as stipulated in Article 47 of Organic Law No. 16-12 regulating the relationship between the People’s National Assembly and the Council of the Nation.[5]The Prime Minister is required to present it within 45 days of their appointment. The People’s National Assembly will conduct a general discussion to review the plan, and discussions can only begin after seven days from notifying the deputies about the plan. According to Article 49 of Law No. 16-12, the action plan must be voted on within ten days of its presentation. Once approved, it is submitted to the Council of the Nation for further approval, as Article 106 of the 2020 Constitutional Amendment outlines.
If the People’s National Assembly rejects the plan, the Prime Minister or Head of Government must submit their resignation to the President, according to Article 107 of the 2020 Constitutional Amendment. The President will then appoint a new Prime Minister to prepare and present a new action plan as previously described. If this new plan is not approved by the People’s National Assembly again, the Assembly will be dissolved automatically, as provided in Article 108 of the 2020 Constitutional Amendment. If the plan is approved, the Prime Minister must implement it, as Article 109 states: “The Prime Minister shall implement and coordinate the action plan approved by the People’s National Assembly”.
The same applies to the Head of Government if the legislative elections result in a parliamentary majority, as provided by Article 110 of the 2020 Constitutional Amendment, which states: “If the legislative elections result in a parliamentary majority different from the presidential majority, the President of the Republic shall appoint a Head of Government from the parliamentary majority and task them with forming a government and preparing the parliamentary majority’s program. In all cases, the President of the Republic shall present their government program to the Council of Ministers and then submit it to the parliament according to the conditions specified in Articles 106 (paragraphs 1, 3, 4) and Articles 107 and 108”.
1.1.2. Discussion of the General Policy Statement
The general policy statement, presented by the Prime Minister or Head of Government, constitutes the second major action undertaken by the government. It demonstrates the government’s commitment to implementing the action plan submitted upon its appointment and serves to oversee the government’s activities.
Thus, parliamentary oversight of the government’s plan is not sufficient on its own; there must be subsequent oversight after a period of time following the plan’s approval. This involves monitoring the actual performance of the executive work in light of the agreed-upon plan through the government’s annual report to the parliament on its general policy.[6]
The general policy statement submitted to the parliament serves as a tool to inform it about the program’s implementation from the previous year and what is currently underway. It highlights the challenges faced by the government, the goals it aims to achieve in the future, and potential obstacles that may arise.[7]
Consequently, the general policy statement allows the parliament to review the facts and difficulties facing the implementation of the government’s action plan that was previously approved. It provides a means and a mechanism for the parliament to oversee the government’s activities.
According to Article 111 of the 2020 Constitutional Amendment, the constitutional founder has mandated that the general policy statement be presented for discussion in the People’s National Assembly within a specific period of one year, starting from the date of approval of the government’s action plan by the Assembly. This period enables the Assembly to provide an annual evaluation of the government’s work and assess the government’s adherence to the action plan. This requirement was also established by the constitutional founder[8] in the 2016 Constitution[9] under Article 98: “The government must present an annual statement on its general policy to the People’s National Assembly.” It was similarly outlined in the 2008 Constitutional Amendment and the 1996 Constitution.[10]
It is a sufficient period for the People’s National Assembly to monitor the progress in implementing the plan. If the constitutional founder had not set this period, the presentation of the general statement would have depended solely on the government’s will, making it difficult for the Assembly to track and evaluate the government’s work.
Accordingly, the Prime Minister presents the general policy statement, which provides an outline of his government’s achievements, leaving the finer details to the written statement handed over to the members of parliament. This is according to Article 111 of the 2020 constitutional amendment, which mandates this procedure before the first chamber of parliament while making it optional before the second chamber. The article states: “The Prime Minister or Head of Government, as the case may be, may present a statement on general policy to the Council of the Nation.” However, presenting it before the second chamber has become customary, thereby establishing a constitutional norm that necessitates its presentation.
Thus, the obligation to present the general policy statement to the members of the first chamber is self-evident, while the freedom to present it to the second chamber members is granted. The obligatory and optional nature of the two chambers can be explained by the potential consequences of filing a censure motion. Therefore, it can only be used by the chamber that can be dissolved by the President of the Republic, which is the People’s National Assembly, while the Council of the Nation, which cannot be dissolved, is deprived of this right.[11]
1.2. Following the Discussion of the General Policy Statement with a Motion
The importance of discussing the general statement lies in its consequences, whether represented by the issuance of a motion of support and approval from the People’s National Assembly (First Section) or a motion expressing its dissatisfaction and disapproval (Second Section).
1.2.1. Issuance of a Motion of Support and Approval
After the discussion on the general policy statement, the discussion may be accompanied by the proposal of one or several motions concerning the general policy statement. For these motions to be accepted, they must be signed by 20 deputies and submitted to the office of the People’s National Assembly.
Article 51, paragraph 03, of Law No. 16-12 states, “The general policy statement shall result in a discussion on the government’s work, which may be concluded with a motion”.
The motion must be submitted by at least 20 deputies to the office of the People’s National Assembly within 72 hours following the end of the deputies’ interventions in the discussion.
1.2.2. Motion of Censure
The motion issued by the People’s National Assembly can also express their dissatisfaction with the general policy statement by including a range of criticisms, observations, and revealing contradictions. In this case, the motion does not have any legal effect and can be considered a warning to the government about its failure to adhere to what was presented during the outline of its plan. It also indicates the possibility of holding the government politically accountable if it is followed by another procedure, which is filing a motion of censure.
2. The Impact of a Motion of Censure and Interpellation on Determining Government Responsibility
The government’s political responsibility is determined if the discussion of the general policy statement is followed by submitting a motion of censure, or as it is called in some Arab countries, a motion of no-confidence, according to the legal conditions for its determination (First Requirement). Additionally, the constitutional founder introduced the procedure of interpellation as another mechanism for establishing the political responsibility of the government (Second Requirement).
2.1.Motion of Censure
After members of the People’s National Assembly submit a motion expressing dissatisfaction with the proceedings of the discussion on the general policy statement, in cases of serious overreach and the government’s failure to achieve what was planned in the government program submitted a year before the discussion of the general policy statement, the motion of no-confidence or dissatisfaction can be followed by the submission of a motion of censure (First Section), according to the conditions (Second Section) and procedures (Third Section) specified in the constitution, additionally, the Prime Minister may intervene and request a vote of confidence from the People’s National Assembly after the submission of the motion of dissatisfaction (Fourth Section).
2.1.1.Definition of a Motion of Censure
A motion of censure is considered the second outcome or effect resulting from the discussion of the general policy statement, as a measure taken by the deputies to pressure the government and force it to resign.[12] It is the inevitable result of the People’s National Assembly’s dissatisfaction and disapproval of the government’s work, holding it politically accountable.
The Algerian constitutional founder linked the activation of this mechanism to two main actions: the government’s action plan and the annual general policy statement, through either disapproval of the government’s action plan or voting on a motion of censure, or through disapproval of a request for a vote of confidence submitted by the government, known as a vote of no confidence.[13]
The Algerian constitutional founder established this mechanism under the 1989 Constitution and the 1996 Constitution with subsequent amendments, as outlined in Article 161 of the 2020 constitutional amendment: “The People’s National Assembly, during the discussion of the general policy statement or following an interpellation, may vote on a motion of censure targeting the government’s responsibility”.
It should be noted that throughout the past years of constitutional experience, there has been no reference to any parliamentary initiative to submit a motion of censure or to threaten the government with the necessity of requesting a vote of confidence. Many successive governments in Algeria have refrained from presenting the annual general policy statement. For instance, the President terminated the duties of Ahmed Ouyahia’s government on September 3, 2012, without the government presenting an annual general policy statement.[14]
The constitutional founder’s linkage of the submission of a motion of censure to the annual general policy statement is due to his desire to achieve a form of institutional stability and to avoid political crises resulting from frequent government changes. The constitutional founder believed that this stability could be achieved by granting the government an annual immunity, enabling it to act calmly and steadily without fear of the effects of a motion of censure being submitted on every occasion, triggering its political accountability. However, this situation somewhat changed in the 2020 Constitution, when the legislator expanded the chances of triggering the government’s political accountability by adding interpellation as another procedure that also triggers its political responsibility.
2.1.2.Conditions for Submitting and Discussing a Motion of Censure
Article 161 of the constitutional amendment states: “The People’s National Assembly may, during its discussion of the general policy statement or following an interpellation, vote on a motion of censure targeting the responsibility of the government.”
The motion of censure must be signed by at least one-seventh (1/7) of the total number of deputies in the People’s National Assembly, a quorum specified in the second paragraph of Article 161, which states: “This motion shall not be accepted unless it is signed by at least one-seventh (1/7) of the deputies.”
This same quorum is reiterated in Article 59 of Organic Law 16-12. Once the required legal number of signatures is obtained, the process of submitting, publishing, and distributing the motion of censure follows, as outlined in Article 60 of the Organic Law. A representative of the motion’s sponsors handles the submission, after which the text of the motion is published in the Official Journal of Parliamentary Debates and voted upon. This ensures that it complies with the relevant legislative texts. The motion must also be posted and distributed to all deputies to inform them in preparation for the discussion and vote.
The motion of censure is then discussed before being put to a vote. The Algerian legislature has specifically designated the parties involved in the discussion, namely the government’s representative (upon its request), a representative of the motion’s sponsors, any deputy who wishes to speak against the motion, and any deputy who wishes to support the motion. The discussion is limited to these parties because they are directly concerned with the oversight relationship initiated by the motion. Other deputies’ interventions may sway the outcome in favor of either the government or the motion’s sponsors, making the discussion a crucial arena for determining the result and impact of the vote on this mechanism.[15]
It is important to note that a deputy is not allowed to sign more than one motion of censure, a requirement clarified in Article 59 of Organic Law No. 16-12, although it does not specify whether this applies to the entire legislative term or just within a single year.
The quorum required for the censure motion is relatively easy to meet if the government’s statement fails to fulfill the promises and expectations outlined in its action plan. However, this percentage is higher compared to some other systems, such as in France, where the quorum required for a motion of censure is one-tenth (1/10) of the deputies.[16]
The constitutional founder set a deadline of three days before the vote, starting from the date of the motion’s submission, according to Article 162, paragraph 2 of the 2020 constitutional amendment. This period is sufficient for the government and its supporters to conduct necessary communications within the parliamentary bloc to undermine the effectiveness of the motion of censure by persuading undecided deputies to support the government. It also facilitates consultation and coordination among deputies.
2.1.3. Procedures for Voting on a Motion of Censure
After the discussion of the general policy statement and its follow-up with a motion of censure, provided that the legal conditions are met, such as having it signed by at least one-seventh of the deputies in the People’s National Assembly, the vote on the motion cannot commence until after three days from the date the proposal was submitted to the Office of the People’s National Assembly.
The constitutio
Implications of Digitalization and AI in the Justice System: A Glance at the Socio-legal Angle
Full text linkThis research paper critically explores the digital transformation of justice systems, applying the theoretical frameworks of “Law and Society” and “Legal Realism” to analyze the socio-legal implications of this shift. As digital technologies increasingly permeate the judicial landscape, they bring opportunities and challenges. The “Law and Society” theory, which views law as a social phenomenon shaped by cultural, economic, and political factors, is crucial for understanding how digital tools can redefine accessibility and inclusivity within the legal system. Conversely, “Legal Realism” focuses on the practical outcomes of legal processes, emphasizing the importance of assessing the real-world effectiveness of these digital tools. This paper discusses the potential benefits and significant challenges posed by digital justice systems, such as disparities in technological adoption and the risk of exacerbating existing inequalities. This study highlights the operational efficiencies gained and the barriers encountered by examining digital initiatives across various jurisdictions. It provides a nuanced view of how digitalization can bridge and widen legal access gaps, emphasizing the need for a balanced approach that considers both technological advancements and their socio-legal impacts. This analysis aims to contribute to the discourse on modernizing justice systems in a way that is equitable, effective, and reflective of contemporary societal needs.
Keywords: Justice, digital transformation, artificial intelligence, socio-legal impact, realism, law and society.
Introduction
In the midst of a rapidly evolving global landscape, the relentless march of technology stands as a beacon of both transformation and challenge.[1] Worldwide judicial systems are adopting digital technology to make civil and commercial legal processes more effective. Evidence shows that these digital tools increase efficiency, transparency, and access to justice.[2] The success of digital technology in improving judicial systems depends on its strategic use. When used correctly, it can strengthen the rule of law, protect human rights, and make justice systems more efficient.[3] Technology can both support and undermine justice and human rights. It’s crucial to understand its benefits and risks to ensure it promotes justice, human rights, and the rule of law. Despite global efforts to digitize judicial systems, challenges in technology, law, culture, and training often slow down progress.[4] In 2020, the pandemic caused many courts to close, disrupting judicial systems. This led to a quick and significant turn to technology to keep justice services running. The crisis sped up the digital upgrade of the justice sector, with governments implementing online applications, digital procedures, and virtual courts. This rapid change renewed calls for global modernization and digitization of justice services.[5] The pandemic highlighted the lack of technology in judicial systems around the world. However, some systems adapted well, depending on their readiness for digital change. In contrast, poorer countries, especially in Africa, suffered more due to their lack of technology, poor communication, and limited internet access.[6] As a result, the justice sector in some countries came to a complete halt.[7] Talking about digitizing the justice sector is pointless without first setting up the needed infrastructure, which is key to digital transformation. Recognizing the need to digitize, especially for handling court files, documents, filing lawsuits, and paying fees, is essential for making progress.[8] The main challenge for the justice sector is achieving smooth cooperation between different judicial bodies within the same area. This goal can’t be reached without using integrated e-government services.[9] The use of AI (artificial intelligence) in legal processes has significantly improved the speed and accuracy of legal services.[10] Law firms and legal offices now widely use AI tools, marking a significant trend. However, using these smart tools raises complex issues, including concerns about privacy, bias, accuracy, and ethics.[11] AI’s use in criminal cases shows it can quickly process vast amounts of data, making decision-making smoother. This not only makes the legal system more efficient but also cuts down on costs, greatly advancing the move towards automating legal decisions digitally.[12] AI and machine learning are greatly improving legal research, making it faster and more accurate. This helps lawyers provide better, quicker services. The shift towards AI in law is changing the field, highlighting the need for lawyers, both new and experienced, to learn about AI tools.[13] Despite the significant attention that digital transformation and artificial intelligence (AI) have received in the context of the justice sector, existing literature predominantly focuses on isolated aspects of this phenomenon.[14] Studies have extensively explored the technological advancements in legal proceedings and the potential of AI to disrupt traditional legal practices.[15] However, there remains a conspicuous gap in comprehensive analyses that bridge the dual impact of digital transformation and AI integration, especially in the wake of the global pandemic which has acted as a catalyst for rapid technological adoption.
This research paper critically examines the digital transformation of justice systems through the dual theoretical lenses of “Law and Society” and “Legal Realism”. These theories are instrumental in dissecting the interactions between law, technology, and societal needs, offering a nuanced perspective on the implications of digital tools within legal contexts.
The “Law and Society” theory posits that law is a social phenomenon shaped by various cultural, economic, and political factors. This perspective is crucial for understanding how digital technologies can redefine the accessibility and inclusivity of the legal system, making it imperative to consider the societal contexts in which these technologies are deployed. On the other hand, “Legal Realism” argues that the law is what the law does in practice, emphasizing the real-world outcomes of legal processes. This theory highlights the need to evaluate the practical implications of digital tools in justice delivery, focusing on their effectiveness in actual legal settings rather than theoretical ideals.
These theoretical frameworks are chosen because they allow for a comprehensive analysis of both the potential benefits and the complex challenges digital justice systems pose. They help unpack the dynamic relationship between evolving technologies and established legal practices and how this relationship impacts legal systems’ structure and the societal outcomes they produce.
The paper progresses by applying these theories in a detailed examination of digital initiatives across various jurisdictions. It assesses the operational efficiencies gained, the barriers encountered, and the disparities in technological adoption across different socio-economic landscapes. Through a critical analysis, this study also explores how digital justice can bridge and exacerbate legal access gaps, underscoring the dual edge of technological integration in legal systems.
In sum, this introduction sets the stage for a deep dive into the transformative role of digitalization in justice systems, guided by robust socio-legal theories illuminating the complexities and imperatives of adapting to a digital legal era. By integrating these theories into our analysis, the paper aims to provide a balanced view that not only celebrates technological advancements but also critically addresses the socio-legal implications accompanying the digital transformation of justice.
1. The Imperative Role of Digitalizing Justice for Modern Legal Systems
The digital transformation of justice systems is not merely a technological upgrade but a profound socio-legal evolution that intersects significantly with the “Law and Society” and “Legal Realism” theories.[16] These frameworks emphasize the dynamic interaction between law, technology, and society, advocating for a legal system that reflects societal needs and realities.
1.1 Law and Society Perspective:
From the “Law and Society” perspective, digitalizing justice serves more than operational efficiency; it redefines the accessibility and inclusivity of the legal system.[17] By integrating digital tools strategically, there is a potential to enhance the rule of law and safeguard human rights comprehensively. For instance, online submissions of legal requests and court filings, as well as the digitization of evidence and case records, promote transparency and accountability.[18] These measures ensure that the justice system is not only efficient but also equitable, reducing procedural delays that often disproportionately affect marginalized communities. The global shift toward digital platforms during the COVID-19 pandemic underscored the critical role of technology in maintaining the continuity of judicial processes, highlighting a shift from traditional in-person engagements to more inclusive digital interactions that could potentially democratize access to justice.[19]
1.2 Legal Realism Application:
Incorporating “Legal Realism,” this section examines the practical implications of digital tools in judicial processes. Legal Realists argue that the law is what the law does hence evaluating the effectiveness of digital transformation involves looking at its real-world impact on justice delivery.[20] For example, the introduction of video conferencing and electronic filing in various jurisdictions during the pandemic, not only continued but arguably improved the functioning of courts by making them more accessible to the public and enhancing participation rates.[21] The adoption of these technologies, however, presents a dual-edged sword; while it benefits those with legal representation, it may increase the complexity of legal proceedings for pro se litigants.[22] Thus, while digital tools have the potential to streamline processes and reduce case backlogs, they also necessitate critical considerations regarding equal access and the potential for digital divides within the legal system.[23]
1.3 Critical Analysis of Socio-Legal Implications:
Despite the advancements and positive outcomes observed in Denmark, Portugal, Slovenia, Belgium, Greece, and certain U.S. states, a critical socio-legal analysis reveals varying levels of readiness and adaptation across global jurisdictions.[24] This disparity often reflects underlying socio-economic factors and the availability of technological infrastructure, which can either facilitate or hinder the equitable application of justice.[25] Therefore, while digital transformation offers significant benefits, it also requires a nuanced understanding of its implications on different populations, especially in regions with limited internet connectivity.[26]
1.4 Future Directions and Theoretical Integration:
Looking forward, the integration of digital tools into justice systems should be guided by socio-legal theories that advocate for a more humane and socially responsive legal system.[27] This involves not only deploying technology to expedite procedures but also ensuring that such technologies are accessible and beneficial to all segments of society. The United Nations Development Programme (UNDP) has recognized the potential of technology to safeguard rights and prevent violations, signaling an international move towards embracing digital justice as a strategy to enhance legal systems worldwide.[28]
2. The Role of Legislative Support in Facilitating the Digitalization of Justice
2.1 Integration of Sociological Jurisprudence
2.1.1 Legislative Frameworks and Social Dynamics:
The advancement of justice systems through digital transformation requires an inclusive approach in legislative policymaking that actively incorporates considerations for privacy, cybersecurity, and access to justice for all.[29] This necessitates an understanding of how digital tools intersect with various social characteristics, including class, race, and gender.[30] For instance, the UNCITRAL’s Model Law on Electronic Commerce establishes a legal foundation but must also ensure these systems are accessible to those with limited digital literacy, thereby preventing new forms of social and digital divide.[31]
2.1.2 Addressing Global Disparities:
Legislation supporting digital justice must not only standardize procedures but also tailor these to the specific socio-economic contexts of different regions.[32] For example, the disparities in digital infrastructure between countries in the European Union highlight the need for policies that not only promote digitalization but also bridge the digital divide.[33] The integration of digital tools should be accompanied by measures that ensure all members of society can benefit from them equally, without exacerbating existing inequalities.[34]
2.2 Application of Legal Realism
2.2.1 ‘Law in Action’ in Digital Justice:
Legal Realism pushes us to examine the practical implementation of digital justice reforms.[35] It highlights the divergence between the theoretical goals of legislation and their real-world execution.[36] For instance, despite the existence of comprehensive frameworks like the Hague Conventions for cross-border judicial processes, the actual effectiveness of these laws in practice can be limited by local resistance to digital methods, particularly from legal professionals who prioritize traditional, face-to-face interactions.[37]
2.2.2 Practical Barriers and Resistance:
The slow pace of digital transformation in places like the European Union can be attributed to practical barriers, including significant costs and diverse levels of infrastructure readiness. Furthermore, resistance from legal professionals who are sceptical of replacing personal interactions with digital processes underscores the need for legislative bodies to not only pass laws but also manage change effectively within the legal community.[38]
2.3 Detailed Analysis of Regional Efforts
2.3.1 Asia-Pacific Initiatives:
In the Asia-Pacific region, the Asia-Pacific Economic Cooperation (APEC) has undertaken initiatives to improve the legal landscape for electronic commerce and tackle issues like electronic authentication and data protection.[39] In a similar manner, the ASEAN Agreement, ratified by the Association of Southeast Asian Nations (ASEAN), establishes a legal framework aimed at improving electronic transactions and facilitating cross-border e-commerce. As per Article 7 of this agreement, every member state is required to broaden the adoption of electronic versions of trade administration documents and streamline the exchange of electronic documents utilizing information and communication technology. This is to be done in alignment with the stipulations outlined in the ASEAN Customs Agreement signed on March 30, 2012, in Phnom Penh, Cambodia, as well as other relevant international agreements.[40]
2.3.2 African Union’s Digital Legal Framework:
Africa’s focus on aligning legal frameworks with digital advancements reflects a forward-thinking approach but also presents challenges in ensuring these frameworks can keep pace with rapid technological changes. Policymakers must remain flexible and responsive to both local needs and global digital trends to prevent legal obsolescence.[41]
2.3.3 Variability in the GCC:
The contrast between the UAE’s progressive digital laws and Bahrain’s more conservative stance highlights the variability in legislative adaptation within the GCC.[42] This region shows how cultural values and legal traditions significantly influence the acceptance and implementation of digital justice systems.
2.3.4 Ensuring Equitable Access:
Ensuring that digital transformation in the justice sector is inclusive and equitable is a recurring theme across all regions.[43] Legislative efforts need to focus on creating frameworks that not only support technological advancements but also promote fairness, privacy, and access to justice for all, especially the underrepresented and disadvantaged groups.
3. Hurdles of Digitalization in the Justice Sector: A Socio-legal Perspective
Digital transformation within the justice sector heralds a potential paradigm shift in how justice is administered[44]. However, this transformation is riddled with significant hurdles that go beyond the integration of new technologies, touching deeply on socio-legal realities.[45] Employing the “Law and Society” and “Legal Realism” perspectives, this analysis seeks to critically examine these challenges, underlining the complex interplay between technological advances and entrenched legal and societal structures.[46]
3.1 Technological Infrastructure Weakness
Law and Society Analysis:
The provision of adequate technological infrastructure, crucial for digital transformation, mirrors underlying socio-economic inequalities.[47] In the United States, discrepancies in access to high-speed Internet and advanced computing technology often align with socio-economic status, disproportionately affecting those with disabilities or limited English proficiency.[48] This reflects a broader issue of digital equity that must be addressed within the framework of societal readiness for technological adoption.
In developing regions, such as Africa and Asia, disparities are more pronounced.[49] For instance, Kenya’s internet penetration rate stands at 87.2%,[50] starkly contrasting with South Sudan’s 7%.[51] Most countries in these regions have internet access rates below 50%,[52] underscoring the urgent need for a socio-legal approach that considers economic and technological disparities in the digital transformation efforts.
Legal Realism Considerations:
The practical effects of inadequate technological infrastructure on justice delivery are significant. In conflict-affected areas like Sudan, not only do physical infrastructures suffer, but intentional disruptions to internet and communication services further impair judicial functions.[53] For example, the ongoing conflict in Sudan involving the Sudanese army and the Rapid Support Forces has highlighted the extreme weakness of the technological and communication infrastructure, rendering it incapable of offering alternative solutions in such dire circumstances.[54] In war-affected regions like Khartoum State and Darfur States, the courts have ceased to operate, resulting in a complete paralysis of the judicial system.[55] At certain times, internet and communication services were intentionally disrupted. For example, MTN, a telecommunications company, suspended its services for approximately 10 hours on April 16th.[56] Additionally, Sudanese telecom company Sudatel halted operations starting Sunday, April 23rd.[57] However, according to statistics from World Internet Stats, the global internet access rate surpasses 67%.[58]
3.2 Resistance to Change
Cultural and Organizational Barriers:
Resistance to digital transformation in the justice sector often stems from deep-rooted socio-legal issues such as fears of job displacement, entrenched traditionalism in judicial practices, and a general lack of technological literacy among judicial personnel.[59] This resistance reflects broader cultural and organizational challenges that need strategic intervention.[60]
For instance, despite technological advancements, Spain and Italy have experienced significant resistance to digitalization in the justice sector.[61] This resistance is indicative of broader organizational and cultural misalignments that can impede effective digital transformation.[62]
Strategic Solutions:
Addressing these challenges extends beyond technological implementation to include comprehensive socio-legal strategies that embrace training, stakeholder engagement, and policy reform.[63] Cultivating a supportive culture for technological adaptation requires changing mindsets as much as changing laws, ensuring that technological and legal reforms align with the societal contexts and expectations of the judicial community.[64]
Integrating “Law and Society” and “Legal Realism” into the analysis of digital transformation in the justice sector provides a richer understanding of the challenges faced. This approach highlights the necessity of viewing these transformations through a socio-legal lens, ensuring that technological upgrades in the justice sector are not only about efficiency but are also socially equitable and legally grounded.
4. Digitalizing Justice in the Era of AI
The integration of artificial intelligence (AI) into the justice sector marks a profound shift in the landscape of legal services.[65] Initially met with scepticism, the role of AI in the justice sector has evolved from a theoretical concept to a practical reality, challenging traditional perceptions of the legal profession’s immunity to technological disruption.[66] This transformation invites a thorough examination through the lenses of “Law and Society” and “Legal Realism” to understand the broader implications of AI on legal systems and societal norms.[67]
4.1 AI’s Role in Legal Decision-Making
4.1.1 Law and Society Perspective:
AI technologies, such as rule-based systems and machine learning, are not just tools for efficiency but also agents of change in the legal landscape.[68] These technologies interact with legal norms and practices in ways that can redefine the access to and delivery of justice.[69] For instance, AI’s ability to analyze large volumes of legal texts and precedents can democratize legal knowledge, potentially leveling the playing field for those who cannot afford traditional legal services.[70] Howeve
Legal Nature and Essential Features of Lotteries
Full text linkThe paper targets the legal framework, signing features of lotteries, their development and regulation across various jurisdictions. It underlines the defining characteristics of lotteries, such as voluntary participation, public engagement, random determination of the results, and prize distribution, which set them apart from other gaming activities, such as gambling. While many legal contexts include lotteries within the broader term of gambling, they reflect a singular social purpose and bring considerable benefits. By studying some of the subtleties of regulation that make lotteries different from gambling, this research can also speak to the general public’s hazy concept of truth regarding what lottery perception is. Additional examination in this study of the legal environment within Georgia and elsewhere for weaknesses in that regulatory framework is done, and recommendations are made on how it can be improved. Ultimately, the paper extends the understanding of the lotteries’ role in society and provides a background for their legal classification and regulation improvement.
Keywords: Lottery, law, social, gambling, welfare.
Introduction
The gambling industry has attracted huge interest in recent years. This very profitable market of gaming is constantly growing and developing rapidly; thus, the interests and participation of players grow proportionally.[1]
Among these lucrative games, an important place is occupied by lotteries since they significantly differ in their nature from gambling and other games. Lotteries do not develop harmful addictions in people and, according to historical and traditional practices, fulfil quite different social functions.
This research is also towards the study of legal regulation of lotteries within a social perspective and interpreting their implication in divining social equity. The method of comparing the laws gives this paper the lottery regulatory norms of the United States, England, and several European countries. In general, the main goal of comparison analysis is to provide some understanding of the defining elements, concepts, and key characteristics of lotteries.
Countries that have had a long development of the lottery were chosen for this research; therefore, the analysis of international practice has a special meaning. The legislators of most countries classify lotteries and gambling as belonging to the wider category of profitable games. This is evident from the UK Gambling Act 2005, in which the collected regulatory norms of the gaming industry were brought together and viewed as one document where the lotteries are looked at as a form of prizewinning games alongside gambling.[2] The case is similar in Georgia, which has the gaming industry ruled by one combined legal act: The Law of Georgia - “On organizing lotteries, games of chance and other prize games”.
Whereas lotteries within the gaming business, for most countries’ legislators, are presented as such; partially, there is a part of the public that still perceives it as gambling, but lotteries, per se, are non-gambling and harmless social games bringing considerable benefits within society.
The objective of this paper will be the attempt to describe the distinguishing features of the lottery, to create a general concept of the lottery, and to indicate its main characteristics in accordance with its legal definition. This research is theoretically and practically meaningful. Based on the comparative analysis of relevant countries, it will provide a detailed understanding of the regulatory norms in Georgia, identify the challenges and help further study and development in this field.
1. History of Lotteries
Lotteries have a rich history. Early historical evidence points out that the first public lottery with corresponding tickets and prizes was instituted during the reign of Emperor Augustus Caesar in the Roman Empire and was intended to raise funds for the municipal repairs of the city. The prizes were not monetary, other than in goods, and the proceeds were used for a large part of civil projects, one of the priorities of Rome at that time being road construction.[3]
In Europe, they first appeared in the 15th century, mostly to provide a source of increased revenue for states.[4] Certainly, one of the earliest lotteries with a declared prize fund took place in Bruges, Belgium, for the relief of the poor.[5]
Italy was another center of many early large-scale lotteries in the 15th century. The first Italian lottery, known as “Bianca Carta”, which translates to “blank paper”, received such a name from the appearance of the lottery tickets.[6]
In France, the first lottery, called “blanque” echoing the Italian name, took place in May 1539 during the reign of Francis I.[7] This is indicative that Italy became a model for France on how to operate large-scale lotteries.[8]
The first city lottery was held in Augsburg, Germany, in the 15th century. A large number of prizes was subjected to goods later replaced by cash, and from 1610, cities like Frankfurt and Hamburg actively conducted lotteries.[9]
Queen Elizabeth I set up the first lottery in England in the year 1567. At the time, England was trying to increase its presence in export markets located around the world. Funds collected through this lottery were meant for building ships and ports.[10]
In Spain, the lottery has also existed and has been running since 1763.[11] Spanish citizens were allowed to participate in one of the biggest lotteries in the world at that time, with pretty big prizes.[12] The first royal lottery was founded by King Charles III in Madrid, and it had the aim of bringing social benefits through this lottery.[13]
The Dutch lottery was established on a nationwide basis in 1726; the proceeds were to flow to the state treasury. In 1848 it received the formal name of Dutch National Lottery, and thereby became one of the oldest operating lotteries in the world.[14]
The modern lottery in the United States began on March 12, 1964, in New Hampshire, under the official name of “New Hampshire Sweepstakes” - nowadays more popular as “New Hampshire Lottery”.[15] Based on the results of horse racing, which included some element of a sports betting pool, it became nevertheless a lottery because gross proceeds from its ticket sales went to public education,[16] which attained once again the social purpose of the lottery.
The first lottery in Georgia was also a welfare one and was titled the National Lottery. All its proceeds went to Tbilisi University and the Georgian theater.[17] The council of the lottery was chaired by Ivane Javakhishvili. Holding a lottery was a thing which first came into his mind back in 1917 when the idea of gathering money to found the first Georgian University appeared.
Due to the important goal, the tickets were sold in all the cities and towns of Georgia. The lottery was promoted by such famous Georgian writers as Giorgi Leonidze, Sargey Mdivani, and other famous actors and public figures of that time. Lottery tickets with a nominal value of 25 “Maneti”[18] were issued in that period. The random selection of the lucky tickets took place on November 1, 1919, in the Tbilisi State Theater (now Shota Rustaveli State Academic Theater). On account of the proceeds from the lottery, 1,077,677 “Maneti” were assigned to Tbilisi University.[19]
The development of lotteries from a historical perspective has revealed that they have always been designed to serve the public and social interests, as opposed to gambling, which contains quite a number of high risks to society. In other words, the major purpose of lotteries is supposed to be fundraising for varied public or welfare projects.
2. The Legal Definition of a Lottery
In modern life, there does not exist a single, universally recognized definition of “lottery” since every country defines it according to its legal system. This is so for the Georgian law too-it has its own, special definition. Namely, Article 3, Paragraph “T” of the Law of Georgia “On organizing lotteries, games of chance and other prize games” states: “A Lottery is a voluntary group or mass game in which the organizer of the lottery, in accordance with publicly announced rules and terms, carries out a draw of a prize fund. The result of winning on a lottery ticket depends exclusively upon case, and it cannot be subject to the will or action of the organizer or any other subject and to falsification”.
While this legal definition gave a possibility not only to identify the key characteristics of a lottery but also to open one more discussion concerning additional traits which should be included in its definition according to the nature of lotteries, at the same time, Georgian law cannot define the notion of a lottery relying exclusively on the definition provided, which is why it is also necessary to understand the international practice and characteristics provided in the legislation of other countries. Comparison in how other countries define a lottery is interesting. The definition of a lottery can then be synthesized through comparison to devise a more rational common definition.
In England, a lottery is classified as gaming and possesses three key components,[20] which are further explained in the following paragraph. These involve monetary participation, which essentially means paying money to receive a ticket, there has to be a certain minimum prize awarded as well as the element of chance in prize distribution.[21]
According to the UK Gambling Act 2005, even though the act classifies lottery as a form of gambling, nevertheless, lotteries that come under national lottery are excluded from classification and are considered to be something entirely different from the rest of gambling.[22]
There are also other lotteries allowed in England apart from the national lottery. These are lotteries organized by private members, community or workplace lotteries for employees, one-time event lotteries, and consumer lotteries that try to promote products or services, whereby there is no extra cost necessary from those who participate in the lotteries. Most importantly, consumer lotteries must not be run to raise more money or provide an extra profit to the people conducting it.[23]
Another strange feature of Italian legislation on gaming is the fact that there is no single legislative document regulating both lotteries and gambling. Thereby, the norms and official definitions regulating the sphere can be found in different sources. In Italy, lotteries are a kind of gaming, and the general definition of lotteries is given in the criminal code. Namely, according to Article 721, any game which yields profit shall be regarded as gaming if winning or losing in it depends exclusively on luck. Italian gambling organization is based upon the territorial principle, with every type of game corresponding to a separate legal act.
In France, gambling gains an inclusive definition that includes lotteries within a single category. According to the law, profitable games are any operation devised for large-scale participation by the public, regardless of the name under which the game is organized.[24]
The focus, therefore, is to offer the hope of winning to participants, which through the principle of chance is attained and involves financial participation on behalf of players.[25] Still, the law draws a line between profitable games in which the players’ knowledge or skills come into play. A game, therefore, in which victory depends on the participant’s skills shall not be regarded as a lottery.[26]
Lottery in Germany is regarded as a certain form of gaming directed towards the majority of the population. The public game scheme provides that, to take part in such a game, players must pay for it, and prizes can either be monetary or non-monetary.[27] However, the German legislation provides exemptions on issues concerning organized lotteries in accordance with territorial principles, covering those large countries characterized by huge populations.[28] That is, if a lottery is organized on the national scale with one prize fund, then that’s a national lottery. Besides that, it is allowed to organize local lotteries in every separate city, provided a proper license has been given out, including only the participation of residents.[29]
In the country of Belgium, like in many other countries, lotteries are regarded as gambling. Article 301 of the Belgian Criminal Code was engaged in a separate definition of a lottery as a game offered to the public in which the participant may win, with a risk of losing, dependent entirely on chance.
However, in Spain, the similarity to the Georgian model of regulation can be distinguished due to the availability of one legal act, the Gambling Law, in which the bases for the organization of gambling and profitable games are enthralls Lotteries and gambling are defined independently: Articles 3(a) and (b) of this very law are similar to the Georgian law. The definition states that a lottery is an instant and raffled game, the tickets might be tangible or in electronic form, and the award depends on just luck.[30] Gambling, on the other hand, is closely related to the involvement of a bet and increasing risk during the game.[31]
In the Netherlands, the legislative framework concerning gambling is set out in the “Betting and Gaming” Act. Article 1.1(a) explains what gambling and profitable games, within which lotteries are classified, are.[32] Gambling shall be understood to mean a contest for prizes and winnings, whereby winners are determined on grounds of chance, and wherein participants are unable to exert any influence whatsoever on the outcome.[33] Furthermore, it is interesting to notice that the definition covers social games, for the participation in which no bets are placed.[34]
In the United States - as in Germany - lotteries are organized based on territorial principles. In each of the states, its own kind of profitable and gambling games are hosted. These games are regulated either under the federal or under the state laws. In the U.S. model, lotteries have not been regarded as gambling but an independent type of games.[35]
The lottery, according to federal law, is defined as an open game in which participation is possible by paying a certain amount, whereas prizes can equally be in money and material and their winners are selected purely per hap.[36]
Federal law also demands that for a game to qualify as a lottery, there must be three essential elements: monetary entry, chance of winning, and prize payout.[37] This can be comprehended to mean that the operator running the lottery will definitely do the declared distribution of the prize to the ticket holder in case there is a random win.[38] While the organization of lotteries dictates that states follow federal law, they also create internal regulatory norms. Specially created entities manage that the model of lottery chosen by them is within the purview of the set regulations right from the licensing stage to its distribution and retailing.[39]
The research done with the use of the methods of comparative law allows the formulating of the unified concept of a lottery in the following way: A lottery is a public game designated for a wide circle of people. The participants take part in it by buying a ticket, and the organizer holds a draw for receiving a prize fund preliminarily declared. The winning depends on chance and is not subject to the will and abilities of the participants. This definition underlines those very basic attributes setting the tangible nature of lotteries.
3. Fundamental Characteristics of a Lottery
3.1. Voluntary Participation
As one of the defining characteristics of lotteries, voluntary participation is the sole entity with which the game takes off. Nobody has the right to oblige an individual to take part in a lottery against their free will.
The principle of voluntariness is expressed in the free choice of the participant who decides whether to take part in such a draw or not, and in case of a positive decision, to realize it by purchasing a ticket. This protects the voluntary and independent nature of the lottery, free of any pressure or mandatory factors from outside.
As described above, English law defines lottery underlining the key attribute describing it, one of which is the player’s monetary involvement in the form of the payment for the ticket.[40]
In its turn, U.S. federal law also requires some features to be present for a game to be a lottery, and these features include voluntary monetary participation expressed as the purchase of a ticket.[41]
German law also conditions the paying of money by participants as one of the requirements for granting cash and non-cash prizes, by which this tradition was also aligned with voluntary participation as one of the fundamental characteristics of any lottery.[42]
3.2. Public Engagement
Therein, this feature was based on the definitions of lotteries and profitable games discussed by various countries. In German law, for example, the objective of lotteries is directed at a large number of people.[43] Of the many elements that comprise that definition is Germany’s Territorial Principle whereby local lotteries are organized by each city with licenses such that only the residents in that area may participate in it.[44]
Likewise, the U.S. model functions in territorial words, yet even there, the component of mass cooperation doesn’t disappear.[45]
Similarly, French law characterizes lucrative games and lotteries as those which accrue huge participation from the public.[46]
3.3. Random Determination of the Results
An attempt to shed light on this aspect of organizing lotteries is to underline that a lottery is, in fact, a game dependent on pure chance. This is about winning or losing, which none-third party organizer can influence.[47] This is absolutely randomized, and therefore nothing can be predicted or influenced by anyone. It is categorical from the examples of the countries discussed that lotteries can never exist devoid of the element of chance. The organization of the game is done to enhance the hope of participation since randomness increases that hope.[48]
It is useful to underscore that French legislation distinguishes between profitable games in which results depend on players’ knowledge or skills and lotteries.[49]
Regulatory norms in English classify a lottery by three elements, one of which implies randomness.[50] Also, U.S. federal legislation enumerates three constituents of a lottery, randomness of outcomes among them.[51] As mentioned above Italian criminal code defines chance as the constitutive element of a lottery both in winning or losing, whereas Spanish law determines that the winnings in profitable games are obtained through chance.[52]
Finally, Art. 301 of the Belgian criminal code stipulates that a lottery should tend only to the distribution of prizes by the principle of chance.[53]
Since no causal linkage between any internal or external action with the outcome of the draw exists in the above discussion, it goes without saying that one of the defining features is the randomness in a lottery. Following this, then, randomness perhaps defines it as one of the most important features of a lottery.
3.4. Prize Distribution
The collection of money for raising funds and financing the prize pool is organized through lotteries and profitable games. So, there cannot be a lottery without a result because a ticket bought may be either winning or losing. Prize distribution is included in several countries as core in the working circles of the above-mentioned definitions. If a lottery does not include prize distribution, then it is not a game in the eyes of the law.
England lists three elements that are necessary to operate a lottery, one of which is the prize.[54]
The same structure is in place in the U.S., where federal law lists three elements necessary for something to be considered a lottery, one of which is the prize. This prize is given out by the promoter based on the rules to the winner of the game. Any type of lottery without this element is forbidden by U.S. federal law and hence illegal and prohibited.[55]
Conclusion
The purpose of the study was to try and arrive at a unified definition of a lottery and find its accompanying characteristics. The paper analyzed the differing definitions of a lottery against the backdrop of regulatory laws determined by countries with wide experience on the subject matter using a comparative legal methodology. In fact, the present study revealed that there exists no single and unified definition of what exactly a lottery is. A definition of a lottery was identified, based on the official definitions of the word provided by the legislation of various countries; as well as key common features that represent the essential elements of organizing a lottery.
According to the sources, though in some countries, lotteries are put in the category of gambling, they should not be considered to cause damage to society, just like gambling, which directly involves high risks.
The examples given in the corresponding part of the current paper proved that most of the countries try to enhance the social destination of lotteries through legislative control.
It found that a lottery differs from other forms of wagering in that lotteries may be characterized as games of chance in which a very small loss by a player offers the possibility of winning a very large prize; the net revenues are used for the public good.[56] Lotteries have had, and continue to have a social function. No one loses in a lottery because the only “loss” is the value of the ticket play.
The state should try to enlighten its citizens regarding the nature of lotteries and their soci
ბავშვის საუკეთესო ინტერესების დაცვა სამედიცინო სფეროში (საქართველოში მოქმედი კანონმდებლობის მიხედვით)
No full textInternational and Georgian legislation recognises the priority of protecting a child\u27s best interests. While discussing any issues related to a minor, the discussion starts by considering the best interests. The present article relates to protecting the best interests of a child in the field of healthcare when receiving medical services and the exact allocation of functions and duties of the involved decision-making parties to provide guaranteed protection of the best interests of a child. Protection of the best interests of a child includes both the immediate identification of the possible child abuse fact and any long-term interest that may influence the child’s development and psycho-emotional state. A legal representative acting on behalf of a child mainly decides on the medical services provided to the minor. Each case will be evaluated individually to guarantee the protection of a child’s rights and best interest. However, before assessing the protection of a child’s best interests in the medical field, the concept of the child’s best interests will be discussed in general. Acting within the framework of the medical legislation, medical workers play the leading role in the process of providing medical services to minors. That is why the constant involvement of the healthcare system is necessary to eliminate the gaps and barriers under consideration. To ensure the balance between parental authority and the child’s autonomous decision-making, the individual case must be evaluated, and a unified objective must be established using a multidisciplinary approach. The standard research method of the record of medical legislation clearly shows the conflict of interest occurring when considering the best interests of a child and the inevitable violation of the child’s unconditional right to be heard.
Keywords: medical law, best interest of a child, parental right, child autonomy, conflict of interest, medical services
Introduction
This article aims to discuss the protection of children’s rights and best interests in the medical field. To achieve this goal, the problematic aspects identified within the protection of the child’s best interest will be reviewed using teleological and normative research methods. By summarizing the theoretical and practical material, it will become clear what danger the strict adherence to the requirements stipulated by the medical legislation of Georgia can cause to the best interests and rights of minors in the medical field.
The research topic is relevant despite the number of normative acts on children’s rights adopted worldwide. Different countries regulate issues related to children’s rights with additional legislative acts according to their jurisdiction. Receiving services in the medical field is associated with certain additional barriers for minors, in which case it is difficult to ensure a balance between parental authority and the child’s autonomous decision-making.
The child’s best interest cannot be defined according to one general standard. However, it is possible to limit the scope of the content to the best interest and necessarily include a common goal for all decision-makers around the child. The general definition of the best interests of a child is close to the rights protected by the human constitution. The necessity of a separate code regarding the child is due to the best interests, the content of which is determined individually in each case. We can say that the general best interest narrows down to each case and is formed taking into account a particular child’s psycho-emotional, social, and economic situation.
As for the protection of the best interests of a child in the medical field, the first chapter will discuss the difference in the contents of a child’s best interest within the framework of acceptable decisions on various issues. The subject of the research of this chapter is also the minor as a person receiving medical services and the child’s right to be heard, taking into account his/her age and other factors.
The second chapter relates to protecting the child’s personal data and the parental right to receive any information about his/her minor child. In the same chapter, legislative exceptions will be discussed, considering the child’s opinion higher than the parent’s right to receive information about the health status of his or her minor child.
The third chapter will discuss the procedure for deciding on medical services for the child in case of parental dispute and the role of the court and other participants.
The subject of this study is to protect the best interests of a child in medical law so that parental right is not disproportionately restricted. The aspects discussed in the central part will make visible the barriers that accompany the provision of medical services to minors and the author’s vision regarding these challenges.
1. Protection of the best interests of a child in the medical field
1.1. Concept of the best interests of the child
The definition of the concept of the best interests of a child can be found in the Code on the Rights of the Child that includes welfare, safety, healthcare, education, development, public, moral and other interests[1] of a child, being prioritized in accordance with the Code, the Constitution of Georgia, the Convention on the Rights of the Child, its additional protocols and other international agreements of Georgia and the individual characteristics of a child, with his/her participation and by taking into account his/her opinion.
On November 20, 1989, under the auspices of the United Nations, the General Assembly adopted such an important act as “The Convention on the Rights of the Child”.[2] “The Convention on the Rights of the Child is the first collection of children’s rights at the international level and it is mandatory that these rights be guaranteed for every child”, Georgia joined the Convention on the Rights of the Child in 1994 and took obligation on the protection of the rights stipulated in the Convention.[3]
The general definition of the best interests of the child is generally close to the human rights protected by the Constitution. However, the development of a separate code regarding the child is conditioned by considering the best interest, the content of which is determined individually in each case. When discussing any case involving a minor, it is necessary to involve specialists specializing in children’s rights precisely to make decisions under the multidisciplinary approach. Naturally, the best interest of a child depends and differs on the issue under consideration, whether it will relate to the determination of his place of residence, limitation of the right of one of the parents, obtaining permission for the disposal of real estate, or receiving medical services. In each case, the court must evaluate the age and readiness of the child to exercise his right to participate and be heard, the arguments of the legal representatives regarding the issue under consideration and the conclusion made with the participation of the guardianship authority.
According to the Civil Code of Georgia, a minor under the age of 7 is considered incapable,[4] and according to the definition of the Code of the Rights of Child, a child from the age of 10 up to the age of 18 is adolescent.[5] Article 8 of the same code establishes the right of a child to participate and have his/her opinion be heard and defines that the restriction of this right is inadmissible under his/her incapability.
Mostly, the decision regarding the child is made by the parent due to his/her infancy; however, when we talk about the child’s right to be heard, here it is directly considered the hearing of his/her opinion and not to be conveyed by his legal representative. It is important to define the authority that may not be delegated to a representative, for example, “... in case of listening to a child personally, this right may not be delegated to a legal representative - a parent”.[6] The right to listen to the child by the representative loses its primary purpose, to have child’s opinion heard. Although the representative should act in the child’s best interest and take part in the case, considering the child’s opinion is the only authority that would not be justified to be fulfilled by the representative.
The research subject relates to protecting the minor’s best interest in the medical field and his/her right to be heard and participate. One point is to protect the child’s right to be heard about the decision about him, and another important issue is that the misinterpretation of the reply should not harm his/her best interest instead of protection.
1.2. Minor receiving medical services
An essential condition for receiving medical services is obtaining informed consent from the patient, the signatory of which must be a competent person. If the patient is a minor, the medical institution receives informed consent from the legal representative, who is authorized to make a decision on the medical services to be provided to the minor.[7] In this regard, it is worth noting as to how much the decision taken by the legal representative regarding a specific medical intervention corresponds to the best interest of the minor, taking into account the expected results, complications, refusal of the intervention and all the circumstances that the medical institution informs the legal representative.
Although the meaning of the legal representative in its content implies protecting the interest of the trustee and acting for his benefit, the content of its concept cannot guarantee that consent was given in the child’s best interest. Court approval has become mandatory[8] for the disposal of real estate registered in the name of a minor to protect the minor’s property interest pursuant to the high standard. The research topic relates to the health, life and development of minors, and the decision made against him/her might have a fatal impact.
Since the medical institution provides medical services for minors, all individual cases related to minors should be reviewed with the involvement of specialized personnel. For example, the removal of a minor’s glands may not result in a violation of the child’s best interests, as will the removal of an organ related to fertility, for which there must be superior best interest protection. Of course, the most important factor is medical testimony, which became the basis for conducting any manipulation.
At the same time, in the law on the patient’s rights, we find an exceptional record related to the age of a minor, which will be referred to in detail below and is related to the conscious psycho-emotional state of the minor patient. Accordingly, it turns out that despite the unlimited right of a child to be heard provided by the Code on the Rights of Child, it is justified to set a certain age limit when considering a minor’s opinion in medical services.
In the medical field, the child’s right to be heard should not be solely determined under the age factor, as it depends on various circumstances, including the child’s level of maturity, the ability to understand the situation and the potential impact of medical intervention. Although age may be a factor in determining a child’s ability to participate in decision-making, it should not be the only criterion. Approach taking into account the child’s cognitive and emotional development coincides with Gillick’s concept of competence, which recognizes that children who have sufficient knowledge and intelligence to make decisions about their medical treatment should have the right to do so, regardless of their age.[9]
For instance, in England and Wales, an adolescent over 16 is deemed competent to consent to medical treatment. A child below the age of 16 can be considered legally competent to consent to medical treatment if he or she is capable of understanding what is proposed and expressing his or her own wishes. It is primarily the task of the treating physician to assess if a child has sufficient understanding and intellectual maturity to understand a medical treatment, particularly its risks. Similarly, the act of Scotland provides that a child under the age of 16 has the legal capacity to consent to medical treatment if, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment.[10]
Healthcare professionals and other involved persons, preferably including a team specializing in children’s rights, should engage with children and adolescents in age-appropriate communication, providing information in a way that is understandable to them. A child’s opinion should be considered alongside the opinions of their parents or legal guardians, recognizing that decisions about medical treatment often involve a balance between respecting the child’s autonomy and protecting their best interests. Joint decision-making should consider the common objective of both children and their legal representatives to protect the child’s best interest. If the child’s opinions conflict with the parents’ wishes or raise questions about their safety and well-being, healthcare providers may need additional support from both the guardianship authority and the court to ensure that decisions are made in the child’s best interests.
2. Protection of child’s personal data
2.1. Child’s personal data protection by medical institution
The procedure and conditions for granting consent to the processing of data about a minor are prescribed by the legislation of Georgia that determines[11] the mandatory consent of a parent or other legal representative for the processing of data about a minor under the age of 16, except for cases directly provided by law. What is meant by the case stipulated by the law will be discussed in the given chapter. According to the same law, the consent of a minor, his parent or other legal representatives to data processing shall not be considered valid if it harms the minor’s best interests.[12]
Consequently, the law considers the possibility that the consent given by the legal representative may harm the minor’s best interest.
It should be noted that the law on patient rights provides for the authority of the parent and/or legal representative to receive complete information about the minor’s health condition.[13] The law on the protection of personal data requires the consent of the minor\u27s legal representative for minor’s data processing, therefore, when considering such category of minor’s personal information, such as health status, we return to the consent of his/her legal representative.
Within the framework of decision-making by a minor on his/her health condition, it is necessary to establish the age limit mentioned in the first chapter, and exactly under this condition, the Law on Patient Rights establishes an exception regarding the provision of information to the parent/legal representative, if a minor patient between the ages of 14 and 18, who, in the opinion of a medical service provider, correctly assesses his health condition and who has consulted a doctor for the treatment of a sexually transmitted disease or drug addiction, for consultation on non-surgical methods of contraception or for artificial termination of pregnancy.[14] In other cases, the parent has the right to receive complete information about the medical services related to his minor child.
In addition, the issue of assigning responsibility to the medical service provider must be noted within the framework of the doctor’s independent decision on whether his minor patient is in a conscious state and whether he correctly assesses his health condition. For this purpose, it would be appropriate to involve a medical institution and a social worker specializing in children’s rights, who, based on the consultation with the child, would be able to determine whether the minor patient assesses his health condition correctly and whether his decision serves to protect the best interest. To achieve this goal, the organization of special, multiple training by healthcare representatives would help the staff working with minors obtain additional information.
Accordingly, a legal record related to the provision of medical services adapted to minors has been developed in the field of healthcare, which puts the best interest of the minor above the rights of the parent. The decision on which right is superior in a specific case is the responsibility of the medical institution, the doctor, as a binding link in the relationship before dispute arises.
The authority of a legal representative provided for by the law is based on the assumption that parents act in the best interests of their children and have a right to receive information about the child’s health and treatment. If there is a conflict between a child’s privacy protection and providing information to parents, the potential risks and benefits of disclosure should be carefully considered. Factors subject to consideration may include the child’s age and maturity level, the nature of disclosed information, the relationship between the parent and child and any other obligations regarding the child\u27s safety or welfare.
The safety and welfare of the child must be prioritized above all other considerations. Finally, establishing a balance between the child’s information privacy related to health and the parent’s right to information accessibility requires careful consideration of each case’s unique circumstances and a commitment to promoting the child’s best interests by respecting their autonomy and privacy.
3. Protecting the best interest of a child in the event of a dispute between legal representatives
3.1. The role of the medical institution and the court in case of a dispute between the child’s legal representatives
Based on the subject of dispute, a child’s best interest is different in case of a dispute between the parents. The article’s central part discusses the medical institution’s role as a link between the minor patient and the parent. The psycho-emotional condition of a minor patient, the medical service, its evidence and necessity must be evaluated within the competence of a doctor. And any decision should be made considering the minor’s best interest.
The issue of protecting the best interests of the child becomes complicated when parents argue regarding the treatment of their child and one of the parents addresses the court. Of course, the court cannot individually decide on such a category case; what is better - to protect the child’s best interest, conditionally, to continue the treatment in Georgia or to grant permission for the departure abroad? The court may consider the medical institution’s report as evidence of essential importance for making a decision; however, in case of a dispute between parents, the child’s decision-making autonomy is even more violated.
The medical institution also has the right to appeal to the court in such cases: “If the decision of a relative or a legal representative of the patient who is a minor or unable to make a conscious decision is against the health interests of the patient, the medical care provider may appeal the decision to a court”.[15] Guardianship and custodianship authority are involved in such category cases to have made acceptable decisions in a complex manner. A child’s best interest regarding the right decision about his health status is violated.
The medical institution exercises this right when it is clear that the parents’ disagreement affects a child’s best interest and medical intervention is unavoidable. In such a case, the doctor needs decision-making authority and immediate response.
According to the amendment to the Civil Procedure Code of Georgia, a judge, lawyer, social worker, and/or other relevant specialist is invited to consider the needs of the minor and participate in the process related to the protection of the minor’s rights.[16] This implies the use of a multidisciplinary method, the participation of specialists who know the stages of the child’s development and will be able to select the right questions and analyze the answers given, considering their age and psycho-emotional attitude.
If a medical institution applies to the court with a request to decide on the method of treatment of the child and there are different opinions of the parents and/or a conflict of interests between the parent and the child, the court should request the involvement of the guardianship and custodianship authority as the representative of the minor. At this time, a guardian appointed by the court is entitled to exercise representative authority to protect the child’s best interest.[17]
In the case subject to consideration, when the medical institution applies to the court, it is natural that the situation requires an immediate decision. In such a case, the child’s right to be heard may be objectively impossible, depending on his medical testimony. At this stage, the court has imposed the most important function of evaluating the factual circumstances and evidence presented in favour of a child’s best interest. This is when the decision will have a long-term or permanent impact on the child’s future or development.
Conclusion
Minor should enjoy all the rights defined for the patient in the healthcare system in accordance with the established procedures determined by the legislation. Currently, the legislation contains all the normative records that lead to the protection of the best interest of a child. However, more specialized personnel are needed to balance the necessary intervention by the parent and/or legal representative and the autonomy of the child’s rights.
The Necessity of Artificial Intelligence and its Impact on Electronic Transactions
Full text linkThe technological revolution, fueled by the sweeping changes of the information age, has profoundly impacted all spheres of life. This transformation has revolutionized the realms of inventions and communications, setting the stage for the rise of Artificial Intelligence (AI). AI has evolved into a formidable force that rivals human intellect, increasingly becoming a focal point of research aimed at integrating it across all aspects of daily life. Its capacity to address individual needs and provide tailored solutions has made it an indispensable tool in today’s digital world.
This rapid scientific progression and the burgeoning interest in AI have established it as a critical necessity, offering significant benefits in various fields. These advancements have transformed traditional, human-controlled mechanisms into intelligent systems that emulate human reasoning and decision-making processes. This shift is particularly evident in the realm of electronic transactions, where AI has played a pivotal role in advancing these technologies and has been instrumental in the development of smart electronic contracts.
Keywords: Electronic Transactions, Scientific Revolution, Electronic Contract, Artificial Intelligence.
Introduction
The information revolution has pervasively influenced various domains of life, altering perceptions of invention and sparking significant innovations such as smart websites, computers, intelligent devices, and cars, all influenced by scientific and cognitive advancements.
These innovations have significantly propelled the development of Artificial Intelligence (AI), where inventors are now focused on enhancing their programming skills and addressing various developmental issues to enable computers or devices to function at the level of human intellect.
Devices are now capable of interacting like sentient beings through sophisticated software, addressing individual needs in contemporary times and significantly expanding the scope of inventive development and output in smart forms. This information revolution has broadened the role of computers and related software to more advanced levels and capabilities.
This progress raises pivotal questions about the necessity of integrating AI into social life and its services and reflections therein. This study aims to delve into the reasons behind the inevitability of AI and its impacts, particularly its rapid proliferation, by exploring two main ideas: firstly, the necessity of artificial intelligence in electronic transactions, and secondly, the impact of artificial intelligence on electronic transactions.
1. The Necessity of Artificial Intelligence in Electronic Transactions
The ongoing necessities of life, especially informational, drive the need to provide and develop ways to fulfil them, thus necessitating the exploration of reasons underpinning the inevitability of AI in electronic transactions.
1.1. Scientific Development
The advancement of science in digital and information domains has made AI a global requirement, as every scientist strives to develop an invention managed by humans into a smart invention or create an intelligence capable of functioning fully with its artificial mind.[1] This development is grounded in digitization and the information field.
1.1.1. Programming
Considering the behavior and characteristics of AI, which mimic human mental capabilities inherent in computer programs, research topics and objectives in programming have shifted towards stimulating human capabilities. This enables AI to independently perform tasks typically executed by the human brain, such as image recognition and voice recognition, through neural networks.[2]
Programming aims to develop information technology from various aspects, including software, electronic sites, and applications. For instance, intelligent search engines like Google Translate have facilitated translation. Although initially lacking in quality and considered literal, it has been improved to provide a logical understanding of paragraphs, sentences, or texts without stumbling or altering the text’s concept or even contradicting words in the same context.
This site allows for uploading a file or pasted text, resulting in a translation as precise as that of a human translator. Additionally, many smart sites now generate quality content without resorting to the slow design processes of traditional programs like PowerPoint and Photoshop, which offer subpar performance during this information revolution.
In the field of design and images, intelligent programs provide limited services such as designing a logo or an image, available freely on platforms like logo.com with AI, offering more options than traditional programs.[3]
1.1.2 Programming Features
Programming involves several essential characteristics:
Precision: The code must be accurate and error-free to achieve the desired or targeted results from the research or development efforts.
Mastery and Understanding: It is crucial for programmers to thoroughly understand the project requirements before starting the programming process. Otherwise, their research may be incomplete or deviate from the prescribed requirements.
Maintainability: The code or instruction should be easily maintainable and modifiable to keep up with the project’s needs.
Documentation: The code should be well-documented and stored in a file for ease of understanding and use by other programmers.[4]
Testing: Regular testing of the code is necessary to ensure it functions correctly and meets the project’s requirements.
1.1.3 Informatics
Informatics necessitates advanced equipment and a robust internet flow for the development of programming and the creation of artificial intelligence for specific online tasks. A minimum of fourth-generation (4G) coverage is essential, with the scientific and informational race pushing beyond to embrace the fifth generation as a fundamental base for internet coverage and communication means.
It is inconceivable to undertake programming operations or digital development with substandard internet quality and flow. Such high standards are crucial for developers or programmers to be poised to implement and apply their innovative ideas akin to those in advanced countries. For instance, the Arab Gulf states utilize high internet flow and are renowned for attracting professionals in this field.
Additionally, devices capable of performing these operations require highly advanced equipment and technologies, such as RAM and processors, which evolve or are upgraded frequently due to new programming requirements that demand specific qualifications.[5]
Informatics and programming are undeniably pivotal in the development of inventions and the integration of artificial intelligence, aside from other reasons related to more specialized scientific fields rather than social and legal ones. Several features of programming include:
Storage and Retrieval: Informatics encompasses the capability to efficiently store and retrieve information at the disposal of its owner for use on demand.
Internet: The informational network plays a crucial part in informatics, enabling access to a vast array of information and services.
Data Analysis: Utilizing methods and tools for data analysis to extract valuable knowledge from big data is instrumental in developing learning systems and making smart decisions based on recorded and analyzed data and even linking between them.[6]
1.2 Digitization and the Shortcomings of Classical Invention
Scientific progress has significantly contributed to the inevitability of artificial intelligence for several reasons, two of which have been previously mentioned. This section will discuss two more reasons that contribute to this inevitability, stemming from the changing individual requirements and needs.[7]
1.2.1. Digitization
Digitization is the process of converting data from a traditional paper form into a digital format using numbers, typically through a computer. It is employed in various programs and applications for personal, scientific, and administrative purposes. This feature will be discussed with a focus on digitization in the higher education sector in Algeria, which has been developed and specialized in various methods and topics.[8]
Higher education, a stage in the educational ladder following secondary education, is provided by universities, institutes, or higher schools to impart all types of information in a specific field chosen by the student.
Information and communication technology has significantly saved effort and time for its users, thanks to its technical features that facilitate easy and flexible storage, processing, retrieval, and also transmission of information. This has prompted most institutions to adopt it, leading to the digitization of scientific education.
Educational Scientific Digitization is defined as the utilization of information and communication technologies in the teaching and learning process. These technologies are employed for storing, processing, retrieving, and transferring information from one place to another, thereby enhancing and modernizing education through tools such as computers and their software, the internet, electronic books, databases, and various electronic means, including email.[9]
It also encompasses technologies that facilitate the aggregation, storage, processing, and transmission of information based on the principle of electronic encoding or coding, whether the data is digital, textual, imagistic, or auditory. This integration of information and communication technologies permeates all facets of the educational process, from lectures and interventions to study days, fundamentally transforming the educational landscape.
1.2.2 The Shortcomings of Classical Invention
The scientific revolution has precipitated significant lifestyle changes, ranging from the simplest to the most complex, spurred by rapid scientific development and the proliferation of inventions. This evolution has transitioned the world from traditional paradigms to embracing significantly broader dimensions, particularly with the advent of the internet.[10]
Despite these advancements and the plethora of inventions, traditional inventions have proven inadequate in terms of individual management. This inadequacy has spurred the development of intelligent inventions designed to perform tasks traditionally executed by rational humans.
Recent research in informatics has thus increasingly focused on Artificial Intelligence (AI), leading initially to the creation of smart inventions that are eagerly adopted due to their autonomous operational nature, programmed to function independently without human intervention. This is exemplified by tools like Google Translate, which autonomously translates text across multiple languages without human oversight.
Although it has dominated scientific research and translation fields for some time, its shortcomings have been recognized, prompting the development of highly sophisticated translation applications or programs.
These tools, such as Yandex Translate, adhere to scientific specialization and control terminology used meticulously, considering the context of specialization such as law or medicine, and ensure vocabulary does not deviate from the intended meaning of texts or documents.
Additionally, specialized websites in fields like graphic and logo design, such as logo.com, provide users with multiple high-quality logo suggestions within the same theme, resembling professional designs. In language education, applications like Duolingo offer robust educational methodologies where users undergo level assessment tests and are taught progressively until they advance to higher levels.
Moreover, online training courses, conducted remotely with electronic agreements, provide certification at various levels based on speciality and academic qualifications.[11]
2. The Impacts of Artificial Intelligence on Electronic Transactions
The features and necessities of artificial intelligence have positioned it at the forefront of the current industrial revolution, profoundly impacting electronic transactions as it spans various fields in social life. This discussion will define electronic contracts and electronic communications, exploring whether AI aligns within these categories.
2.1 The Concept of the Electronic Contract and its Relationship with Artificial Intelligence
To thoroughly understand and elucidate these concepts, they must be explored in a systematic manner to enable a detailed analysis and description.
2.1.1 Definition of the Electronic Contract
The Algerian legislator has taken a keen interest in the electronic contract, enacting the Electronic Commerce Law to regulate it. Before delving into the current legislative definition, it is instructive to reference a prior definition:
2.1.2 Definition of the Electronic Contract by the Algerian Legislator
Article 06 of Law 18-05, as informed by the legal framework of Law No. 04-02 dated June 23, 2004 (5 Jumada Al-Awwal 1425), which outlines the rules applicable to commercial practices, defines the electronic contract as “a contract concluded remotely, without the physical and simultaneous presence of its parties, exclusively using electronic communication technology”.[12]
This definition by the Algerian legislator aligns with other legislations, demonstrating clarity despite its enactment after pioneering Arab legislations in this field. It is important to note that while the electronic contract is defined, electronic transactions are legally encompassed within several interrelated legislations, including the Law on Electronic Communications 18-04 and the Law on Electronic Signing and Authentication No. 15-04, alongside the aforementioned Electronic Commerce Law. Thus, understanding the legislative definition involves navigating through multiple laws due to their interconnectedness on the same subject.[13]
2.1.3 Definition of Electronic Communications
In discussing the definition of the electronic contract, the term “electronic communications” emerged, which serves as the medium for electronic contracting. Therefore, it is crucial to define this term, although no specific law solely addresses it. The Algerian legislator outlined electronic communications in Law 18-04, which sets the general rules related to this domain.[14]
The definition posits that any process executed through electronic means qualifies as electronic communication. The legislator has delineated various aspects of correspondence, including the transmission of anything meaningful via electronic methods. This expansive definition reflects the legislator’s intent to encompass all forms of electronic correspondence under the legal umbrella of “electronic communications”.
Currently, electronic communications pervade all transactions whether civil, commercial, or administrative, as countries have digitized their sectors aligned with principles of public service operation and in response to scientific advancements amid the ongoing scientific revolution.[15]
Prior to the formal regulation by law, various laws and decrees had addressed electronic communications, particularly in the post and telecommunications sectors. However, the enactment of Law 18-04 has provided more explicit regulation than before. Its stipulations were subject to the general rules of proof found in civil law under articles 323 repeated and 323 repeated1, which specify the conditions and rules of electronic proof.[16]
These do not serve as the standard of proof in electronic transactions, but the advent of electronic signatures and certifications has introduced specific controls and conditions due to the evolution and complexity of electronic transactions. This necessitated regulatory adjustments to protect the electronic consumer, amending consumer protection and anti-fraud laws to ensure legal safeguards.
The use of the term “all” by the legislator is particularly significant as it implies inclusivity and provides examples on a non-exhaustive basis. The absence of restrictive phrases such as “only” or “these forms only” broadens the scope of what is included.
Additionally, the use of “or” suggests a choice among various alternatives, reflecting the diversity and evolution of communication methods. Traditionally, email was a primary tool for electronic expression and communication, but now, several other forms have emerged, notably social media platforms.
For instance, Skype was once a leader in communication platforms until the advent of smartphones equipped with diverse operating systems that support app downloads changed the landscape. The Windows system was initially prevalent in computers and smartphones, but it was soon overtaken by the Android system, which has revolutionized the market and remains the most widely used system in mobile devices today, facilitating app downloads from the Google Play store.
Apple’s proprietary system competes closely with Android, contributing to a digital and technological revolution that has seen electronic communications evolve to become intelligent and capable of operating independently.[17]
2.2 The Relationship of Artificial Intelligence to the Electronic Contract
It is crucial to preserve the legal positions of the parties involved, particularly the electronic consumer, who receives significant legal protection. The other party in the contractual relationship might be a program or a smart application equipped with programmed intelligence to operate autonomously. This aspect will be explored in more detail later in the discussion.
2.2.1 The Impact of Artificial Intelligence on Electronic Transactions
The scientific development and the interaction between artificial intelligence and electronic contracts underscore several intersecting points. To comprehend these intersections, it is essential to define artificial intelligence and elucidate its implications, then explore its effects.
2.2.2 Definition of Artificial Intelligence
Artificial Intelligence (AI) is a discipline within computer science dedicated to the creation of computer systems and programs that display intelligent behaviors. These systems are designed to reason and perform effectively on the problems under study. They possess capabilities such as understanding various languages and recognizing patterns, among other attributes that enable them to function with a level of intelligence comparable to human intelligence.[18]
AI is also characterized as the theory and development of computer systems able to perform tasks traditionally requiring human intelligence, including visual perception, speech recognition, and decision-making.[19]
Characteristics of AI systems include:
Problem-solving: AI systems do not require manual initiation by a programmer; they autonomously start and resolve the problems or data they encounter.
The ability to think and perceive: Once developed and programmed, AI can offer insightful solutions based on its algorithms, enabling it to comprehend its actions and the outcomes it produces.
The ability to acquire and apply knowledge: AI systems are continuously enhanced with updates that maintain the digital and scientific standards of the programs, introducing new iterations such as the ChatGPT program, which has evolved through several versions to its latest, significantly more intelligent version.
Using old expertise in new contexts: While programming relies on pre-established data, updates and new information can be integrated, allowing the program to amalgamate old and new data effectively.[20]
2.2.3 The Intersection of Artificial Intelligence and the Electronic Contract
Artificial Intelligence (AI) has played a transformative role in the evolution of electronic contracts, leading to the development of smart contracts, which are predominantly used in specific sectors. This discussion will focus specifically on the smart contract.
2.2.4 Concept of the Smart Contract
Smart contracts are self-executing contracts that typically operate without the need for a mediator. They are implemented through electronic devices like smartphones, tablets, and computers via the internet.[21]
The concept of smart contracts is relatively recent, and initially, both their definition and legal regulation were not straightforward. They have been defined as “contracts between two or more parties that are programmatically encoded and whose clauses automatically execute when specified conditions or events occur”.
Smart contracts are self-executing agreements that are established and programmed within a decentralized distribution network, the blockchain, to manage the relationship between the seller and the buyer without any specific authority’s intervention or oversight through AI.
Notably, smart contracts are categorized under electronic contracts as AI has tailored changes in electronic transactions,[22] specifically confining them to areas such as digital currencies and cryptocurrencies during trading, as well as the digital exchange and transfer of funds without the physical presence of individuals in these transactions.
AI has also propelled advancements in electronic contracts through the upgrading of programs and applications. There are now AI-powered programs capable of performing tasks traditionally done by humans, such as language teaching and accounting. These programs interact with users as a professional would with an electronic consumer, precisely addressing and fulfilling the individual’s requests, and often astonishing them if the AI’s performance level is exceptionally high.[23]
Conclusion
The findings underscore that AI is a social and legal inevitability encompassing all areas and sectors, including electronic contracts and other electronic transactions. It has significantly contribu
Crimes Omissions: A Psycho-Sociological Perspective
Full text linkThis research was based on understanding and managing crimes of omission is a key strategy for reducing their harmful effects. The research aim was to analyze the personal and social characteristics of individuals responsible for crimes committed by inaction in Georgia. The study employed a mixed-methods approach to explore the psycho-sociological foundations of inaction and was conducted in two stages. The first stage discussed the theoretical framework surrounding inaction, while the second stage analyzed cases of inaction in Georgia. During the research process, significant gaps in public data were identified, highlighting the challenges of recording and accessing information about these crimes. Despite these challenges, a strong theoretical and empirical connection was identified between crimes of omission and the broader context of cultural and social passivity in developing post-Soviet Georgian society. This connection underscores the significant impact of the post-Soviet legacy in understanding the legal and psychosocial context of crimes of omission. As a result, to reduce crimes of omission and increase public involvement, the study suggests improving the judicial system, promoting legal knowledge, and encouraging civic activism and initiative within society.
Keywords: crimes of omission, cultural factors, obedience to authority, situational factors, conformity
Introduction
The science of psychology is interested in human behaviour, including the nature of law-abiding and law-breaking cases. Violation/crime can be committed either by act or omission. Of special interest is when a person does not perform an action despite having a moral or legal responsibility.
In explaining criminal inaction, we must consider the social nature of humans and the influence of the environment on our formation. It is important to understand how moral norms are formed and how they influence our behaviour and attitudes. Understanding the psychological processes of inactivity helps us to study the socio-legal system, explain crime by omission, and plays a crucial role in preventing crime and ensuring the welfare of society.[1]
Discussion and study of crimes committed by inaction, in turn, play an important role in strengthening the accountability of the legal system, increasing legal awareness, and ensuring justice.[2] In the process of research, the nuances of justice are identified, and an opportunity is created to avoid the negative social and legal manifestations of inaction.[3] Both on the specific individual (who was directly harmed) and on the societal (individual, family, community, economic, social, and political) level and, as a result, on overall well-being.[4]
Today, in the discourse of Georgian society, there is no study of the features of crimes committed by inaction,[5] accordingly, when analyzing the relatively low statistics of registered crimes committed by inaction (from 15 to 25 cases per year),[6] there is no basis for the belief that crime in Georgia is committed only by action. In addition, the paucity of registered crimes committed by inaction can be linked to the difficulties of recording the relevant facts, indicating, on the one hand, the lack of public legal awareness and, on the other hand, the malfunctioning of the relevant agencies.[7]
When discussing inaction in Georgian society, it should be taken into account that as a result of the collapse of the Soviet Union, Georgian society is undergoing a psychological, socio-legal, and political transformation. At this time, there is still a change in social, legal, and political values, norms, and expectations.[8] In Georgia, as well as in other post-Soviet countries, the inaction and passivity of the population can be explained by historical and cultural factors, including distrust of the system, fear of taking responsibility for results, and learned passivity/weakness[9] by situational and contextual factors[10] and by not feeling supported.[11]
There is also an opinion that the passivity and low social responsibility of a citizen who does not take action, despite having moral and legal responsibility, is not related to personal characteristics but to the high level of conformity of the citizen.[12] Conformity, in this case, is considered in a social context as adjusting one’s behaviour, attitudes, or beliefs to conform to the norms of a group or society, which plays a crucial role in shaping people’s motivation for action and inaction.[13]
Understanding the explanatory variables of said inaction and the interrelationship dynamics of inaction is a necessary prerequisite for explaining, preventing, and promoting responsible behaviour regarding crimes committed by inaction.[14]
The purpose of the research was to analyze the circumstances of crimes committed by inaction in Georgia, identify the personal and social characteristics of the persons responsible for this crime, explain the crimes, and create recommendations for developing preventive strategies.
1. Methods and Materials
To analyze the circumstances of crimes committed by omission in Georgia, the research was conducted in two stages. In the first stage, the theoretical and empirical framework of human inaction and crimes committed by inaction was discussed. In the second stage, the relationship between the theoretical factors of human inaction identified within the framework of the desk research and the economic, social, and political circumstances of the crimes committed by inaction in Georgia and the people convicted of these crimes was analyzed.
In the first stage of the research, we discussed the theory of conformity, obedience to authority, and situational factors and roles. We also examined the crime of omission and its determinants, conceptual foundations of variables, and contextual nuances. By synthesizing theoretical insights with empirical evidence, the interaction between personality, social factors, and legal responsibility for crimes of omission was analyzed.
In the second stage, the relationship between the identified factors of inaction and the circumstances of the crimes committed by inaction in the Georgian context was analyzed. Using systematic case study methods, publicly available decisions in the civil court proceedings system of Georgia[15] were analyzed. These documents related to cases of abandonment in the trial and to allegations of non-assistance. The selection criteria for these cases were based on the specificity of the sample and the unavailability of other alternative samples.
The economic, social, and personal characteristics of the criminal acts were considered during the study of each case. Data analysis focused on extracting specific variables related to personal and social circumstances documented in the descriptive sections of court decisions.
2. Results and Discussion
2.1. Desk Research
In the initial stage, the research examined the theoretical and empirical framework related to inaction and crime omissions.
Crime omissions - according to the legislation of Georgia, crimes can be committed by action or inaction. Abandonment, failure to help, and failure to report a crime are considered crimes of omission. For all three of them, the prerequisite for imposing criminal liability is the existence of a person’s intention - their understanding of the situation, when they could, should have acted and did not act, and as a result, damage occurred.[16]
According to Georgian criminal law, inaction when there is moral and legal responsibility for it is punishable. However, public inaction in Georgia has more social nature and is related to a mixture of historical, social, economic, and political factors: the Soviet legacy of control; often political instability; poverty and unemployment; economic migration; constant corruption; weak institutions and cultural emphasis on acceptance (in the family and community). Additionally, the education system lacks emphasis on civic activism and media literacy and promotes learned helplessness and mistrust of civic institutions.[17]
There is an opinion (actus reus) that only actions and not inaction can be a crime; however, the law recognizes situations when a person’s inaction should be considered a crime. It usually refers to cases where someone neglects their legal and moral responsibility to prevent harm to others. It is crucial to recognize that an omission must be considered a contributing factor to the resulting harm when the individual had the opportunity to avoid it and did not use it.[18]
However, it is a challenge to determine moral and legal responsibilities when a person must be given a clear duty, and the ability to act must be established. When considering a person’s legal responsibility, their psychological and social nature (intention, ability to understand, profession, activity, and relationship with the victim) should be considered. The degree to which the causal link between the omission and the resulting harm is determined whether the person is responsible for the inaction. At this point, the level of awareness and the ability to realize the person’s responsibility at the time of the inaction is decisive.[19]
Theoretical framework - to explain the psychological nature of inaction and crimes committed by inaction, the research relies on the theoretical frameworks developed by scientists Solomon Asch (1951), Stanley Milgram (1963) and Philip Zimbardo (1971). Among them:
Solomon Asch - Conformity theory attempts to explain human actions and inactions to gain acceptance from the group and/or to avoid ostracism and exclusion from the group.[20]
Stanley Milgram - According to the theory of obedience to authority, people obey authority orders even at the cost of harming others. To understand why a person may be inactive, it is possible to consider the authority’s responsibility for action and their lack of understanding of responsibility at a particular moment. At this point, they may assume that another authority will intervene if necessary.[21]
Philip Zimbardo - According to the theory of Situational Factors and Social Roles, individuals act in certain situations because of their perceived social roles and environmental influences. When they have a passive role, and this is the norm for them, they show less initiative.[22]
In the context of crimes of omission, inaction is explained by these theories: escape from social displeasure (Conformity Theory), attribution of responsibility (Obedience Theory), and inappropriate situational factors for action (Situational Factors and Role Theory). The mentioned theoretical framework for people’s inaction in situations where they have moral and legal responsibility for it.
Factors affecting inaction/omission crime - Several studies confirm the content of the considered theoretical framework in practice by distinguishing the role of social psychology, legal aspects, and cultural factors in criminal behavior committed by inaction. For example:
Disorganized environment - When the enforcement mechanism of the regulatory framework for the protection of norms is inadequate or does not exist at all, this may result in inappropriate inaction of citizens’ moral and legal responsibility, considering the inadequacy, untimeliness, and infallibility of the punishment;[23]
Demographic characteristics - A high level of education is associated with citizen activity, high employment and achievement rates, and, as a result, a low level of crime. Conversely, a low level of education is associated with low self-efficacy, passivity, and both active and passive crime.[24]
Awareness - The level of legal awareness of a person is related to their implementation of actions under the conditions of moral and legal responsibility;[25], [26]
Social factors - refers to: a) social norms and cultural values about what is right and wrong for a person. It affects the motivation of their action and inaction;[27] b) Expectations and feelings of support refer to services and practices in the community. A lack of expectation and feeling of support can prevent a person from intervening in a certain situation; c) The situational environment implies the presence of others in a specific situation and, if they are present, their actions and inactions according to their attitudes. [28], [29] d) Social reservations establish the rules of behavior at a particular moment and determine a person’s decision on action or inaction.[30]
Economic factors - The fewer economic resources a person has, the less chance they have to act. Research shows that having fewer resources makes people feel powerless and pushes them toward inactivity, including committing a crime by inaction;[31], [32]
Psychological characteristics - Individuals may commit crimes by inaction if: a) they do not have an appropriate upbringing; b) they are cognitively biased and/or emotionally unstable/labile; c) they lack the ability to empathize and/or are anti-social; d) they have mental health problems. [33] e) They assign responsibility to someone else; f) They are afraid of failure; g) They cannot understand the severity of the situation and their responsibility; h) The situation is ambiguous and confusing; i) The situation puts them under stress.[34]
Criminal history - The presence of past criminal experience can result in inactivity because: a) The sense of justice has decreased, leading to inaction; b) By being inactive, the person avoids drawing attention to themselves; c) They distrust the system and do not want to intervene in a case where they would have to contact the system; d) They have low self-esteem and a feeling of weakness or uselessness.[35]
Cultural norms - The cultural attitude towards authority differs in individualistic and collectivist societies. These differences create varying cultural norms regarding passivity and activity when needing help from others.[36], [37]
In summary, the desk research provides a comprehensive overview of the existing theoretical and empirical framework of inaction and crimes committed by inaction. The analysis of Ash, Milgram, and Zimbardo’s theories, along with empirically proven factors influencing inaction, highlights the importance of various circumstances in understanding crimes committed by inaction. These circumstances include the social environment, demographic characteristics, legal awareness, social norms, economic resources, psychological qualities, criminal history, and cultural norms. The first stage of the research emphasized the role of the complex interaction of individual, social, and situational factors in determining moral and legal responsibility for inaction. This stage played an important role in the second stage of the research, which involved analyzing and explaining crimes committed by inaction in Georgia.
2.2. Qualitative Study
In the second stage, the research delved into the multifaceted landscape of individuals sentenced for criminal omissions in Georgia, investigating various dimensions, including their conformity, to understand their involvement in criminal inactions.
Only 8 of the decisions made by the courts of Georgia on the crimes of neglect and failure to help were found to be publicly available. This number is less than the small statistical indicator that the National Statistics Office publishes every year. Additionally, all available cases were not independent offenses (omission) as a separate charge, but in all eight cases, the failure to stand trial charge was accompanied by a traffic safety or operating violation case.
Legal Statistics - Although the registered crimes committed by inaction are small and refer only to the episodes of failing to test during traffic accidents, the inaction of society in the case of domestic violence is also noteworthy. For example, an entire neighborhood may know someone is abusing a family member but, despite a moral duty to act, not report it. The lack of charges for such inaction is explained by the low level of cultural and social responsibility. This once again confirms the civil passivity and conformity of the Georgian tendency in the form of avoiding responsibility or initiative. This argument is also supported by linguistic determinism, which can be seen in Georgian phrases such as: “One is wise in another’s business”, “Whatever happens to you, David, take it all yourself”, and “The fool thought that the quarrel between husband and wife was right”. The reluctance of domestic violence victims in Georgia to acknowledge their victimhood or seek help contributes to the inaction of others and can be explained by the theory of obedience. This circumstance reduces the likelihood of bystander intervention, as the victim’s refusal to report the abuse to the police serves as an authoritative signal to others not to interfere in their situation.
Legal and social context - a) The statistics of registered crimes committed without action in Georgia are small, and the number of court decisions available on the mentioned cases is even smaller. However, this scarcity does not imply that crimes are not being committed by inaction. Passive inactivity represents a cultural and social legacy common in post-Soviet countries.[38] Several factors contribute to this phenomenon. Firstly, the low registration of crimes committed by inaction (few registered crimes) can be attributed to limited awareness—people may not know when and what type of inaction is considered a crime. Additionally, weak law enforcement and judicial systems, characterized by corruption or low capacity to adequately assess blame, may hinder proper registration. Cultural and social norms also play a role, as they tend to recognize crimes committed by action more readily than those committed by inaction. Social passivity, which avoids social confrontation, further prevents accusations from being made. Moreover, the low funding of relevant agencies often prioritizes other, more straightforward cases.[39] Overall, these factors highlight the challenges in accounting for and providing public access to similar cases within the legal system. The fact that the victim died in all recorded cases can be explained by the legal system’s focus on recording only those cases of inaction that have serious consequences. b) Connection with traffic accidents: It should be noted that all the analyzed cases of crimes committed by omission in Georgia were related to traffic safety. This association underscores the peculiarities and challenges of Georgia’s legislative practice. Law enforcement agencies may prioritize recording and investigating traffic violations rather than inactions per se. This perspective is reinforced by the cultural-legal emphasis on road safety and the existence of statistics on traffic accidents and other related crimes in Georgia. [40]
Personal characteristics - a) Alcohol consumption - the analysis showed a potential relationship between alcohol consumption while driving and the crime of omission. In all cases of crimes committed by inaction, the fact that the criminal was in a drunken state is explained by cultural and social characteristics. Georgia is a wine country where alcohol consumption is socially encouraged. Added to this is the low law awareness of citizens, which is related to the lack of focus on law enforcement and crime prevention at the general level; b) Absconding - in most of the discussed cases, the defendants absconded from the scene, and only later reported to the police. The fact that all the criminals fled the scene reflects the social nature of the lack of responsibility, which leads to the passivity of society. In this case, the perpetrators’ absconding may be due to panic, guilt, or a desire to avoid legal consequences after an accident. They may have created a moral conflict between their actions and duties, which could not be balanced/understood by the influence of alcohol, as a result of altered consciousness.[41] In addition, it is considered as a case of avoiding legal consequences, fear and/or lack of understanding of the situation (legal awareness, affect, alcohol, etc.);[42] c) Repentance and cooperation: Despite initial attempts to evade responsibility by hiding, the majority of criminals eventually repented and cooperated with the authorities. This behavior may stem from feelings of guilt or remorse, as well as their sense of accountability and recognition of the importance of adhering to societal norms. Their eventual return and cooperation underscore their conformity and desire for social recognition (which is encouraged by law). Research supports the notion that a perpetrator may be motivated to confess and cooperate with the authorities for several reasons. Firstly, there may be feelings of guilt or remorse. Expectations of a reduced sentence can also serve as motivations for returning and/or assisting after absconding.[43]Furthermore, societal legal and ethical principles, along with expectations of responsible citizenship, may influence their remorse, desire to maintain social order, and sense of meaning.[44] Repentance of offenders after absconding may be influenced by societal norms and cultural values that emphasize the importance of taking responsibility for one’s actions and seeking ways to make amends. While hiding from the scene, individuals may come to regret their actions and feel compelled to make amends by confessing and cooperating with the investigation.[45]
Cultural and Social Context - The social passivity observed in Georgia, influenced by historical, social, economic, and political factors, adversely affects the process of registering, accusing, and proving crimes committed through inaction. Cultural norms, along with social passivity, encourage avoidance of confrontation, reluctance to intervene, and, in certain in
Navigating the Digital Marketplace: Legal Requirements for Online Contracts with Consumers in the European Union
Full text linkThe internet has revolutionized shopping, offering unparalleled convenience for consumers in the EU and worldwide. However, this digital ease is underpinned by a robust legal framework that ensures fair play for businesses and consumers. Understanding the key legal requirements for online contracts in the EU is crucial for businesses to operate smoothly and ethically within this dynamic market. This article delves into these requirements, equipping businesses with the knowledge to navigate the online contracting landscape confidently. This article explores the key legal requirements for businesses operating in the EU when forming online contracts with consumers. This article further discusses the challenges in the present legal framework and suggests potential solutions. Furthermore, the author has attempted to present a comparative framework with legal requirements of online contracts with consumers in the United States (US) and the United Kingdom (UK). Thus, this article will provide insight to businesses and consumers and aid in navigating the e-commerce and digital marketplace by ensuring the rights of the consumers in the EU are protected.
Keywords: E-commerce, digital marketplace, legal requirements for online contracts, online contracting landscape, rights of the consumers.
Introduction
The growth of e-commerce has revolutionized how businesses interact with consumers. Increasingly, consumers purchase goods and services online, and businesses enter into contracts with consumers electronically. However, the ease and convenience of online contracts with consumers can also create risks, particularly with respect to consumer protection. In response, the European Union (EU) has established a legal framework for online contracts with consumers to ensure that consumers are adequately protected.
The European Union (EU) thrives on a bustling online commerce sector. But with great digital convenience comes responsibility, especially when protecting consumers. EU law establishes a strong framework to ensure fair and transparent online contracts between businesses and consumers. The legal requirements for online contracts with consumers in the EU are an important aspect of consumer protection in the digital age. The European Commission has enforced several directives and regulations such as Directive on Consumer Rights,[1] Directive on Electronic Commerce,[2] Directive on Electronic Signatures[3] repealed by eIDAS Regulation 2016,[4] Directive for the supply of digital content and digital services to consumers,[5] Sales of Goods Directive[6] etc., which provide such framework the legal requirements for online contracts with consumers in the EU. The businesses established or operating within the EU or having their source of interest or providing services within the EU, including online businesses, shall and must comply with the legal requirements for online contracts with consumers, such as the information requirements, order confirmation and acknowledgement of receipt, technical steps, cooling-off period, unfair contract terms, electronic signature, and data protection, etc.
This legal framework significantly impacts the dealings of businesses that operate online and enter into contracts with consumers in the EU. Failure to comply with such legal requirements leads to the risk of legal liability. Thus, this paper aims to provide an overview of these legal requirements, analyze their impact on online businesses, and offer recommendations for businesses to ensure compliance with the legal framework.
1. Overview of the Online Contracts with Consumers with Emphasis on the EU Legislation
Online Contracts, often also called Electronic Contracts, form an imperative part of the E-Commerce and are seen to be entered between service providers or businesses selling online products & services (including digital content) and the consumers. Thus, the legal requirements for online contracts with consumers only apply when service provider offers such product or service to a consumer i.e. “any natural person acting for purposes outside his/her trade, business or profession”.[7] Thus, this definition makes it clear that consumer is a person who buys for personal purposes and not for professional usage and therefore, legal entities such as corporations and associations does not qualify as ‘Consumers’. This definition of Consumer has been harmonised at the EU level, and member states cannot introduce a different legal definition.
The online contracts are constituted when the offer is made by one party and the same is accepted by the other party in an electronic setting. For example- when you buy any product on Amazon or even a Prime subscription (premium service of using Amazon), the prices for the product or service are indicated, and by clicking on the buy button, we accept the offer made by the service provider which by action/conduct of making payment or agreeing to receive the benefits of the product of service, the consumer concludes the online contract.
It is important to note here that there may arise several circumstances when a person may use some good for personal and professional use, for example- a lawyer buying a computer for herself and her kids through a digital marketplace to use for their study, entertainment and other personal usage but also to draft e-mails and briefs for her clients. This situation will give rise to dual purpose contract i.e. when a good or a service has a double purpose. In such cases, to determine whether consumer law applies, one needs to check the prevailing purpose of that contract.[8] Thus, it has to be determined for what purpose the computer is used more and if it is used 25% for professional work and 75% by herself and her kids for personal reasons, then consumer law will apply on the online contract.
Online contracts not only include goods supplied through the digital marketplace but also includes digital content and services, for example, computer programs, applications, video files, audio files, music files, digital games, e-books or other e-publications, etc. However, consumers are not always confident when buying across borders, especially when it is done online. One of the major factors for consumers’ lack of confidence is uncertainty about their key contractual rights and the lack of a clear contractual framework for digital content or digital services. Many consumers experience problems related to the quality of, or access to, digital content or digital services. To remedy such problems, businesses and consumers should be able to rely on fully harmonised contractual rights in certain core areas concerning the supply of digital content or services across the European Union. Thus, with this aim and objective, Directive (EU) 2019/770[9] on certain aspects concerning contracts for the supply of digital content and digital services was adopted in May 2019.[10]
To remain competitive in global markets, the Union adopted the Digital Single Market (DSM) Strategy in 2015, laying down a comprehensive framework facilitating the integration of the digital dimension into the internal market. The DSM has three pillars: improving access to digital goods/services across the EU, fostering conditions for digital networks and innovative services; and optimising the digital economy’s growth potential. Following the strategy’s release, the Commission proposed several legislative measures to achieve a DSM.[11] These legislative measures include Directive (EU) 2019/771[12] on certain aspects concerning contracts for the sale of goods, which cover rules applicable to the sales of goods, including goods with digital elements, only in relation to key contract elements needed to overcome contract-law related barriers in the internal market. Furthermore, finally, with the adoption of the Digital Services Act[13] and Digital Markets Act,[14] the European Commission has attempted to create a safer digital space in which the fundamental rights of users of digital services are protected and to establish a level playing field to foster innovation, growth and competitiveness in the European single market and globally.[15]
Thus, with such legislative protection for consumers, the EU has prescribed several legal requirements for determining the legality of online contracts with consumers since, as consumers, we usually skip to reading the terms and conditions that we agree to while making any online purchase, but this aforesaid legal framework in EU protects the interests of the consumers by regulating mandatory disclosure requirements, unfair contract terms, colling-off period, electronic signature, data protection etc. Such legal requirements are elaborated in the next section.
2. Legal Requirements for Online Contracts with Consumers
With the enforcement of the Digital Services Act [Regulation (EU) 2022/2065] and Digital Markets Act [Regulation (EU) 2022/1925], the core requirements for online contracts with consumers remained unaffected, and the Electronic Commerce Directive (2000/31/EC) still applies largely to the contracts concluded electronically. Though the Digital Services Act (DSA) has amended the e-commerce directive but, the part dealing with legal requirements for online contracts remains the same and the conditional legal liability exemptions regarding providers of intermediary services, also known as “platform liability” or “notice and takedown” in the European context will be laid down in the Digital Services Act (DSA).[16] The Digital Markets Act (DMA) aims to prevent gatekeeper platforms from unfairly favouring their services or disadvantaging businesses using the platform. This indirectly benefits consumers by promoting a more competitive online marketplace. Furthermore, DSA focuses on creating a more transparent and trustworthy online environment by requiring online platforms to be more transparent in their terms and conditions. It also mandates online marketplaces to implement stronger verification processes for businesses selling on their platforms, thus reducing risks of scams. Therefore, the DSA and DMA don’t replace existing legal requirements for online contracts. However, they create a broader framework that promotes transparency, trust, and fair competition in the digital marketplace. This indirectly strengthens consumer protection in online contracting within the EU.
The key Legal Requirements for Online Contracts with Consumers in the EU are as follows:
2.1 Information Disclosure Requirements: One of the key requirements for online contracts with consumers in the EU is that the business must provide the consumer with certain information before the contract is concluded. The information requirements are set out in Directive 2011/83/EU on Consumer Rights,[17] which applies to distance contracts and off-premises contracts, and the Electronic Commerce Directive (2000/31/EC),[18] which applies to contracts concluded electronically. Under these directives, businesses are required to provide the following information to consumers before the contract is concluded:
Identity and contact details of the business: Businesses must provide their name, address, telephone number, email address, and any other relevant contact information.
Description of the goods or services: Businesses must provide a description of the goods or services being offered, including their main characteristics, features, and functionality.
Price of the goods or services: Businesses must provide the total price of the goods or services, including all taxes and fees.
Delivery costs and arrangements: Businesses must provide information on the delivery costs and arrangements, including the delivery time and any applicable delivery restrictions.
Payment methods: Businesses must provide information on the accepted payment methods, including any fees or charges that may apply.
Right of withdrawal: Businesses must inform consumers of their right to withdraw from the contract within a minimum of 14 calendar days without giving any reason.
Complaints and redress mechanisms: Businesses must provide information on how consumers can file complaints and access redress mechanisms if they have a dispute with the business.
Technical steps to conclude the contract: Businesses must provide information on the technical steps that the consumer needs to follow to conclude the contract, including any technical requirements for accessing and using the service.
It has been made clear in the legal framework that the failure to provide the required information can result in the contract being considered null and void, and the business may be subject to legal liability.
2.2 Technical Steps: In addition to providing the required information to consumers before the contract is concluded, businesses must also provide information on the technical steps that the consumer needs to follow to conclude the contract. By providing this information, businesses can ensure that consumers are able to navigate the online purchasing process and conclude the contract with ease. This requirement is set out in the Electronic Commerce Directive (2000/31/EC),[19] which applies to contracts concluded electronically.
Under this directive, businesses are required to provide clear and understandable information on the technical steps that the consumer needs to follow to conclude the contract. This information must be provided in a way that is easily accessible and must include the following:
2.2.1 Information on how to correct errors before placing the order.
2.2.2 Information on the technical means for identifying and correcting input errors before placing the order.
2.2.3 A clear and understandable confirmation that the order has been placed.
2.2.4 Information on the technical means for concluding the contract.
2.2.5 Information on how the consumer can access and store the terms of the contract.
By providing clear and understandable information on the technical steps, businesses can reduce the risk of errors and misunderstandings and the resulting risk of legal liabilities in case of non-compliance.
2.3 Cooling-off Period- The cooling-off period is a period of time during which consumers have the right to withdraw from a contract without penalty and without giving any reason. The cooling-off period is an important aspect of consumer protection, and it is provided for under Directive 2011/83/EU on Consumer Rights,[20] which applies to distance contracts and off-premises contracts.
Under this directive, consumers have a cooling-off period of 14 days to withdraw from a contract. The cooling-off period starts from the day the consumer receives the goods or from the day the consumer enters into the contract for the provision of services. During this period, consumers can exercise their right of withdrawal by notifying the business of their decision to withdraw from the contract. The notification of withdrawal must be made in a durable medium (i.e. in writing or another format that allows the consumer to store the information) and must include the following information:
2.3.1 The consumer’s name and address.
2.3.2 A clear statement of the consumer’s decision to withdraw from the contract.
2.3.3 The date on which the consumer received the goods or entered into the contract for the provision of services.
2.3.4 Information on how to return the goods (if applicable).
This information must be provided before the contract is concluded, and if the business fails to provide the required information on the right of withdrawal, the cooling-off period may be extended to 12 months. In addition, failure to comply with the requirements relating to the cooling-off period can result in the contract being considered null and void, and the business may be subject to legal liability.
2.4 Unfair Contract Terms- Another important aspect of consumer protection in online contracts is the prohibition of unfair contract terms. The Unfair Contract Terms Directive[21] aims to protect consumers from unfair contract terms that may be included in contracts with businesses.
Under this directive, businesses must ensure that their contracts with consumers do not contain unfair contract terms. Unfair contract terms are defined as terms that have not been individually negotiated and that, contrary to the requirement of good faith, cause a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer. Examples of unfair contract terms include terms that:
2.4.1 Limit or exclude the business’s liability in the event of a breach of contract.
2.4.2 Allow the business to unilaterally change the terms of the contract.
2.4.3 Make it difficult or impossible for the consumer to enforce their rights under the contract.
2.4.4 Limit the consumer’s right to terminate the contract.
2.4.5 Allow the business to terminate the contract without notice.
In addition to the Unfair Contract Terms Directive, the Consumer Rights Directive (2011/83/EU) also sets out requirements relating to unfair contract terms. Under this directive, businesses must ensure that their contracts with consumers are transparent and that the terms are expressed in plain and intelligible language. This is intended to ensure that consumers are able to understand the terms of the contract and make informed decisions when entering into the contract. Failure to comply with the requirements of the Unfair Contract Terms Directive can result in the contract being considered null and void, and the business may be subject to legal liability.
2.5 Electronic Signature- In the context of online contracts, electronic signatures are an important aspect of contract formation. The Electronic Signatures Directive[22] provides a framework for the use of electronic signatures in EU member states. Under this directive, an electronic signature is defined as “data in electronic form which are attached to or logically associated with other data in electronic form and which serve as a method of authentication”.[23] This means that electronic signatures can take a variety of forms, such as a typed name, a scanned signature, or a digital signature. The level of legal validity of an electronic signature will depend on the circumstances in which it is used and the level of assurance it provides as to the identity of the signatory. The eSignature Directive was repealed as of 1 July 2016 when the rules on trust services under the eIDAS Regulation came into effect.
In addition to the Electronic Signatures Directive, the eIDAS Regulation[24] provides a more comprehensive framework for electronic signatures, electronic seals, electronic time stamps, and electronic delivery services. The eIDAS Regulation establishes a common legal framework for the use of electronic identification and trust services throughout the EU and provides a high level of legal certainty for electronic transactions.
2.6 Other legal requirements: There are several other legal requirements which are also important to be considered while entering into an Online Contract with the consumer, such as Data protection and processing of personal data in compliance with GDPR,[25] the use of clear, legible and comprehensible text on electronic medium for display of information, language in which information shall be presented, etc.
3. Challenges and Potential Solutions
Even with the present legal framework for Online Contracts with consumers in the EU, they face several challenges and issues, which are as follows:
3.1. Enforceability: Online contracts can be difficult to enforce, especially if the business and consumer are located in different countries. This challenge can be addressed by including a choice of law and jurisdiction clause in the contract, specifying which country’s laws will govern the contract and which courts will have jurisdiction over any disputes.
3.2 Accessibility: Not all consumers have equal access to the Internet, and some may not be able to access online contracts due to disabilities or other limitations. Businesses can address this challenge by providing alternative means of accessing the contract, such as offering printed copies upon request or providing an audio version of the contract for visually impaired consumers.
3.3 Language barriers: Online contracts can present challenges related to language barriers, particularly for consumers who are not fluent in the language of the contract. To address this challenge, businesses can provide online contracts in multiple languages or offer translation services for consumers who require them.
3.4 Clarity and understandability: Online contracts may not always be clear and easy to understand for consumers, particularly those who are not familiar with legal terms and concepts. This challenge can be addressed by ensuring that the contract is written in clear and concise language, free from legal jargon, and providing clear explanations of any legal terms or concepts.
3.5 Electronic signatures: The use of electronic signatures in online contracts can also present challenges related to authentication and verification. Businesses can address this challenge by using secure electronic signature technology tha
კრედიტორის მიერ კანონიერ ძალაში შესული გადაწყვეტილებით არამოვალე მესაკუთრის სახელზე საკუთრების უფლების იძულებითი რეგისტრაცია ქართული კანონმდებლობის მაგალითზე (უძრავი ქონების რეგისტრაციის დავალდებულება - კონკრეტული სასამართლო გადაწყვეტილების მიმოხილვა)
No full textThe enforcement of a legally valid court decision is the right of the person who has restored his violated right through the court, and the enforcement of this right by the interested person (creditor) through coercion (registration of the property right in the public register) also requires a new court decision. Court proceedings and judicial practice have long known the legal interest of the party and the claim of appropriation based on this interest, at which time the interested party applies to the court with the request for forced registration of the defendant as the owner of the item, and this happens in the case when the person (the true debtor) avoids registering his ownership right with the Civil Registry Office in the National Public Registry Agency. Employees of administrative authorities often do not investigate certain circumstances in administrative proceedings, which in themselves violate the rights of individual persons, and this leads to provoking disputes in Georgian courts, which are sometimes fairly or sometimes unfairly carried out against the circle of persons whose constitutionally recognized rights have been violated. The purpose of this article is to develop critical thinking in the reader based on a specific court decision so that he or she can conduct a broad analysis of the content of the court’s decision that has entered into legal force and the features of its execution.
Keywords: Non-debtor owner, Creditor, Public Registry.
Introduction
N.P. filed a civil lawsuit in the Tbilisi City Court. The subject of the dispute was recognition as the owner of the immovable object, invalidation of the mortgage agreement, and cancellation of the enforcement document by the notary. The lawsuit was based on the criminal verdict according to which the following circumstances were established: J.B. using a fake power of attorney in the National Public Registry Agency, N.P., self-registration of the owned immovable object and then loading it with the right of a mortgage in favor of the creditor.[1]
After the end of the dispute, N.P.’s right of ownership was restored to the disputed real estate, however, based on the fact that Articles 312 and 185 of the Civil Code of Georgia serve to protect the interests of the bona fide purchaser, N.P.’s right of mortgage remained on the property in favor of the creditor.[2]
Based on the fact that N.P. was not a real debtor and the loss of his property rights resulted from an illegal decision of the public registry, N.P. filed an administrative lawsuit in the Administrative Affairs Board of the Tbilisi City Court, with a request to impose material damages against the defendant - administrative body.[3]
1. Administrative Claim Against the LEPL National Agency of Public Registry for the Imposition of Compensation for Damages
During the dispute between N.P. and the National Agency of Public Registry, the creditor applied to the National Public Registry Agency and demanded the enforcement of the claim settled by N.P. in the civil dispute. As we mentioned in the introductory part, the lawsuit of N.P. was partially satisfied, namely in the part of the owner’s certificate, although N.P. did not register this right in the public registry agency. The creditor indicated in his statement that his legal interest was the sale of the mortgaged real estate,[4] although based on the fact that N.P.’s mortgaged immovable property was not registered, for this reason, the enforcement proceedings could not continue, which hindered the enforcement process. The creditor submitted a legally binding decision to the public register, according to one of the clauses of which N.P. was known as the owner, however, as you know, the creditor did not have a writ of execution and was not authorized to execute such a decision for one simple reason: N.P.’s claim related to recognition of the real estate as its owner, the creditor was not a party in this dispute.
2. Review of the Court Decision related to the Forced Execution of the Decision that Entered into Legal Force by the LEPL National Agency of Public Registry
The National Agency of the Public Register, without considering N.P.’s legal interest, against his will, registered the right of ownership and issued the relevant extract. After that, the enforcement proceedings were resumed. N.P. filed an administrative lawsuit in the Tbilisi City Court and demanded the annulment of the individual administrative-legal act, according to which the property right was registered in his name without showing his will. The lawsuit was based on several circumstances, namely:
The first and second parts of Article 95[5] of the General Administrative Code of Georgia - “Participation of interested parties in administrative proceedings”:
The administrative body has the right to involve the interested party in the administrative proceedings based on his request, and in the case defined by the law, he is obliged to ensure his participation in the administrative proceedings.
The administrative body is obliged to inform the interested party about the initiation of administrative proceedings if an individual administrative-legal act may worsen his legal situation and to ensure his participation in the administrative proceedings.
In the case under consideration, it is established that the creditor applied to the National Agency of Public Registry and requested N.P.’s registration as the owner; the administrative body started administrative proceedings based on this application. It is obvious and indisputable that according to Article 95 of the General Administrative Code of Georgia, the most accountable person in this administrative proceeding - N.P. was invited to the discussion. It should have been, however, that the National Agency of Public Registry violated the norms of the above-mentioned article and decided compulsory, without N.P.’s participation.
The first and second parts of Article 96[6] of the General Administrative Code of Georgia - “Investigation of the circumstances of the case”:
During the administrative proceedings, the administrative body is obliged to investigate all the circumstances that are important for the case and to decide based on the evaluation and mutual reconciliation of these circumstances.
It is not allowed to base the issuance of an individual administrative-legal act on a circumstance or fact that has not been investigated by the administrative body in accordance with the law.
Based on the above, it is unequivocally confirmed that during the lawsuit proceedings, the creditor was not a party to the claim for the restoration of ownership rights. Based on the above, the legally binding decision of the Tbilisi City Court and the writ of execution were not issued to the creditor. The party interested in the execution of the said request is N.P., based on whose request a legally binding decision and an enforcement document will be issued. It is N.P. The person who, based on the existing legal situation, has the right to demand the execution of a legally effective decision within the time specified by the legislation and by coercion between them.
3. Judicial Practice
Georgian litigation and court practice have long known the legal interest of the party and the claim based on this interest (attribution), where the interested party applies to the court with the request to register the defendant as the forced owner of the item. To substantiate this reasoning, we will refer to the practice of the Supreme Court of Georgia,[7] Case N As-1154-1299-08 (subject of clarification): Obligation to register property rights in the public register. The mentioned decision is a clear example of how the creditor should act to register the N.P.’s defective real estate. The creditor is obliged to file a claim in the Tbilisi City Court and justify his legal interest in the Registration of the real estate in his name.
4. Substantiation of the Decision of the Administrative Court
The court of first instance did not satisfy N.P.’s administrative lawsuit, and the aforementioned was substantiated by the fact that the civil decision submitted for registration was legally binding, and the legally binding decision is binding on the entire territory of the country, and it must be enforced, although the panel ignored the fact that the legally binding decision was submitted by an unauthorized person, who, as already mentioned above, did not represent a party in that civil dispute.[8]
5. Enforcement Writ and the Essence of the Attributive Claim
Given that in this article, we are talking about the registration of property rights, it is necessary to correctly explain the essence of the writ of execution and its need at the stage of registration. Immediately after the legally effective decision in favor of the plaintiff, the person can receive a copy of the same decision certified with a seal and an enforcement sheet, which is the resolution part of the same decision, in which it is unequivocally indicated in what part the person’s claim requirements were satisfied. By submitting the two above-mentioned documents, and based on the relevant application, the National Agency of the Public Registry, starts administrative proceedings, after which it approves or rejects the application of the person. It should be noted that if the claimant has recovered his damaged property right by the force of the court, the enforcement of this decision is only the right of the claimant and not of any other third party. If the third “interested person” believes that his right is violated by the non-enforcement of the legally effective decision (the enforcement process is suspended, and he cannot meet his requirements), then he must request the assignment of the ownership right to the non-debtor owner with an independent lawsuit to indicate his legal interest as well. The attributed lawsuit is also called an enforcement lawsuit,[9] since the court decision issued in connection with it is the basis for issuing a writ of execution and can be enforced if the defendant does not voluntarily fulfill the obligations imposed on him by the court. For example, the debtor has a debt to a creditor that he does not pay, the debtor inherits real estate, which he does not register because he believes that the creditor will make it enforceable as soon as it becomes a civil turnover. If the creditor finds out about the existence of the inheritance certificate, does the creditor have the right to bypass the court and register the inheritance property in the name of the debtor by applying the registration authority? In this case, the creditor is obliged to file a claim in court and demand the obligation to register the right of ownership and to indicate the existence of his overdue claims against the debtor as a legal interest was not a personal debtor of the creditor, and that is why the court had to judge whether the National Agency of the Public Registry of Public Registry had the right to carry out this type of registration, especially at a time when the National Agency of Public Registry represented the defendant in a dispute over compensation for damages initiated by N.P.
Conclusion
In conclusion, I would like to mention that the National Agency of Public Registry of Georgia under the Ministry of Justice of Georgia cannot fulfill the fundamental tasks assigned to it. The Ministry of Justice of Georgia is the guarantee of legal security in our state; it is obliged to correctly reflect the rights recognized by the constitution in its actions, which is a necessary condition in a democratic state. There are positive signs in the Georgian judicial system in this regard since individual judges appointed to the Chamber of Administrative Affairs are very carefully and thoughtfully considering administrative disputes, which is welcomed.
Bibliography
Research and Textbooks:
Nachkebia, A. (2000-2013). Definitions of civil legal norms in the practice of the Supreme Court (Case N As-1154-1299-08, Vol., p. 111).
Kurdadze, Sh., Khunashvili, N. (2015). Civil Procedural Law of Georgia, Second Completed and Revised Edition, “Meridian” Publishing House, p. 355.
Normative Material:
General Administrative Code of Georgia.
Court Decisions:
Tbilisi City Court. (2017, May 31). Judgment on the criminal case, N 1/630-17.
Tbilisi Court of Appeal, Civil Affairs Chamber. (2019, April 15). Decision, N 2b/298-18.
Tbilisi City Court, Administrative Affairs Board. (2021, September 21). Decision, N 3/4312-20.
Tbilisi City Court, Civil Affairs Board. (2017, November 30). Decision, N 2/15811-17.
Footnotes
[1] Tbilisi City Court. (2017, May 31). Judgment on the criminal case, N 1/630-17.
[2] Tbilisi Court of Appeal, Civil Affairs Chamber. (2019, April 15). Decision, N 2b/298-18.
[3] Tbilisi City Court, Administrative Affairs Board. (2021, September 21). Decision, N 3/4312-20.
[4] Tbilisi City Court, Civil Affairs Board. (2017, November 30). Decision, N 2/15811-17.
[5] Article 95 of the General Administrative Code of Georgia.
[6] Ibid., Article 96.
[7] Nachkebia, A. (2000-2013). Definitions of civil legal norms in the practice of the Supreme Court (Case N As-1154-1299-08, Vol., p. 111).
[8] Administrative Affairs Board of the Tbilisi City Court. (2023, March 2). Decision No. 3/6202-21.
[9] Kurdadze, Sh., Khunashvili, N. (2015). Civil Procedural Law of Georgia, Second Completed and Revised Edition, “Meridian” Publishing House, p. 355