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THE MECHANISM OF COMMITMENT TO DISCLOSURE IN THE CONSUMER AND MEDICAL FIELDS ACCORDING TO ALGERIAN LEGISLATION
Full text linkThis study addresses the mechanism of the commitment to disclosure. Both professionals and physicians bear the crucial responsibility of providing information that is not only accurate but also understandable and appropriate for the intended patient or consumer. By mirroring its international counterparts, Algerian law mandates this duty, attaching legal consequences for its breach. Before any medical intervention, a doctor must obtain the patient’s consent, fulfilling an essential preliminary step. Likewise, before initiating a sales process, a professional must inform the consumer about all necessary details regarding the product or goods.
This paper delineates the extensive aspects of this obligation, including its defining features, evidentiary requirements, and the nature of the resultant damages from non-adherence. The aim is to recalibrate the balance of power within medical and consumer interactions, thereby augmenting the safeguarding of patients and consumers. This duty is considered one of the fundamental rights of patients and consumers, linked to ethical and humanitarian responsibilities, and is a precursor to obtaining consent.
Keywords: Commitment to Disclosure; Physician; Professional; Patient; Consumer; Liability
Introduction
The rapid pace of scientific and technological advancements across various sectors necessitates keeping up-to-date, particularly in the health and consumer domains. This urgency has underscored the obsolescence of antiquated legislative texts, which are inadequate in addressing contemporary risks and innovations. Consequently, legislative bodies have periodically intervened to enact specialized regulations, embedding constraints and protective measures.
The commitment to disclosure is central to these protective measures, which is paramount in the medical and consumer sectors. This principle garners attention from international and national entities, representing a pivotal right for patients and consumers, underpinned by ethical and humanitarian obligations and forming the cornerstone of informed consent.
The legal and judicial landscape of the commitment to disclosure has evolved significantly, particularly since the landmark Teyssier ruling on January 28, 1942,[1] which asserted that consent must be sufficiently informed to be considered valid. Before any medical procedure, obtaining the patient’s informed consent is a prerequisite and a critical component of the process.
Neglecting this duty is deemed negligence, leading to medical accountability. Algerian legislation has encapsulated this requirement in Law No. 18-11, pertaining to health care.[2] Similarly, professionals are obligated to furnish consumers with comprehensive information about products or services before concluding a transaction, as mandated by Algerian Law No. 09-03 on consumer protection and fraud prevention.[3]
Consequently, this study raises the following query:
How has Algerian legislation orchestrated the commitment to disclosure within the ambit of consumer protection and health law?
1.Commitment to Disclosure in the Consumer Field
The origins of consumer protection can be traced back to the United States in 1962, following a seminal speech by President John F. Kennedy to the Senate on March 15, 1962. In this address, he delineated four fundamental consumer rights: the right to safety, the right to be informed, the right to choose, and the right to be heard.[4]
1.1 Definition of Commitment to Disclosure
The commitment to disclosure is designed to empower consumers, enabling them to make informed and judicious decisions regarding acquiring products or services. This obligation emerges from legal statutes, similar to other duties borne out of legislative mandates.
The obsolescence of Law No. 89-02 in addressing contemporary consumer needs led to its replacement by Law No. 09-03 on consumer protection and fraud suppression. This newer legislation accentuates the importance of disclosure, specifically dedicating a section to “mandatory consumer information.” Algerian legislation has thus developed a framework of statutes governing this disclosure commitment.
Effective disclosure equips consumers with the knowledge to make enlightened choices, steering them towards products and services that balance quality and price harmoniously.[5] Recognized nationally and internationally, this commitment is a pivotal instrument that aids consumers in forming a comprehensive understanding of market offerings before their purchase decisions.
1.2 Conditions of the Commitment to Disclosure
1.2.1 Information to be disclosed
The commitment to disclosure encompasses all information pertinent to the contract’s critical elements. Nevertheless, the breadth of information required under this commitment varies across different sectors, presenting a challenge in specifying the information to be disclosed. Scholars and legal authorities have debated the criteria for determining necessary disclosure. French jurisprudence, for example, suggests a broad criterion that encompasses any facts significant enough to influence the creditor’s decision to the degree that their prior knowledge might have prevented the contract’s formation.[6]
According to Article 17 of Law No. 09-03, all parties must provide consumers with comprehensive product information. The data and information relayed to consumers must be exhaustive and detailed, highlighting the product’s characteristics, components, and potential risks.Haut du formulaire
1.2.2 Conditions specific to the parties involved in the commitment
These conditions include:
Conditions pertinent to the debtor: A party bound by the commitment to disclose must be aware of the information related to the contract and its importance to the creditor. Common understanding holds that information should be reciprocally exchanged in a sales agreement, as dialogues regarding the product’s attributes and qualities are crucial for securing the buyer’s informed consent.
The creditor’s unawareness of the contract-related information: Legal consensus maintains that a contracting creditor cannot assume a passive stance based on presumed ignorance. In practice, each party is expected to seek information to the extent of their capability. A creditor’s plea of ignorance is deemed valid only when rooted in legitimate and insurmountable reasons.[7]
Although Algerian legislation broadly asserts the consumer’s right to information, it remains ambiguous whether this right extends to pre-contractual or contractual phases, as indicated in Article 17 of Law No. 09-03 on consumer protection and fraud suppression.
1.3 Nature of the Commitment to Disclosure
In consumer law, many scholars view the commitment to disclosure as a duty to produce a specific outcome. It is not enough for a producer to simply demonstrate that they have attempted to convey the necessary information and data to the consumer; these are mandatory disclosures enforced by legislative and regulatory provisions.
Yet, this is not an absolute principle; if a professional must ensure a particular result, they must exert the utmost effort to shield consumers from potential harm. Despite being aware of the legal repercussions, many professionals overlook this obligation. Conversely, a producer’s responsibility may also encompass due care, which entails facilitating the consumer’s ability to purchase products and services safely, thereby offering goods that align with established standards and expectations.[8]
The consumer’s right to information has been solidified in international legislation, often underscoring the imperative to honour this right, thus empowering consumers to protect their interests more effectively, free from the producer’s influence.[9]
1.4 Means of Implementing the Commitment to Disclosure
According to Article 17 of the Consumer Protection and Fraud Suppression Law, the execution of the commitment to disclosure is achieved through:
1.4.1 Labeling:
This encompasses all forms of data, inscriptions, signals, emblems, characteristics, images, figures, or symbols related to a product, which may appear on its packaging, documents, signs, features, stickers, cards, seals, or any indicative element of the product’s nature, irrespective of its format or basis. [10]
Per Article 18 of the same law, labelling information must primarily be in Arabic, with the option to include more easily understandable languages. The purpose of Labeling is twofold: to ensure consumers are adequately informed, as Labeling is often the first aspect noticed by consumers, and to facilitate sales, as mandated by Article 2/2 of Executive Decree No. 90-367 regarding the labeling of food products, as amended and supplemented.[11]
Concerning the general regulations or principles related to Labeling, Article 13 of Law No.09-03 mandates that no sign, mark, or fictitious designation should be employed in a manner that unjustly differentiates a particular product from its counterparts. It also forbids preventive or therapeutic benefits claims, except for natural mineral water and specific dietary products. For instance, IFRI mineral water is labeled as appropriate for low-sodium diets and is recommended for pregnant women and for preparing infant formula.[12]Haut du formulaire
1.4.2 Price Disclosure and Sale Conditions:
Article 4 of Law No. 04-02 outlines the rules governing commercial practices, stipulating that “sellers are obligated to inform customers of the prices and rates for goods and services, along with the conditions of sale”.
The prices disclosed must correspond to the total amount consumers are expected to pay to acquire a product or service, as delineated in Article 06 of the same law. With respect to sale conditions, Algerian regulations require professionals to provide consumers with detailed information about these terms, as per Article 8 of Law No. 04-02.
This provision mandates that sellers must, prior to completing a sale, furnish consumers with accurate and truthful information regarding the product or service characteristics, applicable sale conditions, and the expected scope of contractual liability related to the sale or service.
1.4.3. Advertising:
Advertising encompasses all forms of communication designed to directly or indirectly promote the sale of goods or services, irrespective of the medium or location used[13]. The goal of advertising extends beyond merely satisfying consumer expectations to influence their purchase decisions; it also aims to safeguard the interests of the involved parties by promoting products and stimulating increased consumer consumption.[14]
1.5. Liability Arising from Non-Compliance with the Commitment to Disclosure
The Algerian legal framework holds individuals accountable for failing to adhere to the obligation of disclosure. The professional’s negligence in this regard incurs various forms of liability, which can be:
1.5.1 Civil Liability:
This encompasses contractual liability emanating from violating a contractual duty, such as failing to deliver pre-contractual information. The sanctions for such breaches focus on clarifying the consumer’s intent during the contracting process, influencing the party’s consent, and potentially leading to the annulment of the contract.[15]
This may result from errors, where misconceptions distort the individual’s understanding of reality, or deceit, characterized by employing fraudulent tactics to persuade the consumer into a contract agreement. Additionally, if the disclosure obligation is breached during the contractual phase, it entitles the consumer to insist on fulfilling the contract as originally stipulated.
Often, in commercial advertising, consumers initiate legal action for specific performances to compel advertisers to honour the promises made in their promotional campaigns. Besides contractual liability, civil liability also encompasses tort liability, stemming from the breach of a legal duty, which arises among individuals who lack a direct contractual relationship.[16]
When the prerequisites for civil liability, including fault, damage, and a causal link, are established, the consumer is entitled to reparation for the injuries incurred due to the debtor’s non-fulfilment of the disclosure duty.[17]
This restitution encompasses compensation for physical harm, such as fatalities, illnesses, and injuries, as well as material damage, which impairs one’s legal rights, assets, or vested interests. The tort liability of the producer is invoked when the aggrieved party is a third entity, not engaged in a contractual relationship with the professional (producer), yet they are still entitled to compensation. Examples include family members, friends, and guests of the purchaser.[18]Haut du formulaire
1.5.2 Criminal Liability:
In line with prevailing legal standards, the Algerian legal framework provides for criminal sanctions to supplement civil penalties, obliging professionals to disclose pricing information as dictated by Articles 4 and 5 of Law No. 04-02 on commercial practices, with the failure to disclose prices being a misdemeanour as per Article 31 of the same statute.
Moreover, the omission of sale conditions constitutes a punishable act under Article 32 of Law No. 04-02. Supplementary penalties, such as confiscation, are delineated under Law No. 09-03, where commodities confiscated due to breaches of commercial practice regulations are transferred to the state property administration for disposition.
2. The Commitment to Disclosure in the Medical Field
Article 23 of Law No. 18-11[19] on health stipulates that every individual must be apprised of their health condition, requisite treatments, and associated risks. This obligation is further emphasized in Law No. 18-11 concerning health, as elaborated and supplemented by Articles 23, 25, and Article 343, which pertains to organ transfer and transplantation.
Additionally, the commitment to medical disclosure is underscored in Algerian decree No. 92-276, embodying the code of medical ethics, with Article 43 explicitly stating that a physician or dentist is compelled to furnish clear and accurate information to their patient regarding the rationale behind each medical procedure.
The imperative for medical disclosure, a right endorsed by French jurisprudence and codified into law, seeks to legally uphold human dignity, especially following its infringement. The ethos of medical disclosure is anchored in the principle of bodily sanctity, safeguarded by the Algerian constitution, which forbids any form of physical or psychological abuse, penalizes torture, cruel, inhumane, or degrading treatment, and outlaws human trafficking, as per Article 39.
2.1 Concept of Patient Information Commitment
The obligation to inform encompasses the provision of a comprehensive and accurate account of the patient’s health status, empowering them to make an enlightened choice regarding treatment acceptance or refusal. It is incumbent upon the physician to elucidate the nature of the ailment, the proposed therapeutic measures, alternative treatment options, and the financial implications of each, employing clear and simple language. [20]
Furthermore, the physician is obligated to delineate the potential risks involved. The terminology to describe this obligation varies among academics, with some preferring “disclosure” while others opt for “enlightenment.”
2.2 Content of the Commitment to Disclosure:
Disclosure of Diagnosis: This duty is incumbent upon the physician from the outset of the medical assessment, whether it involves physical examination or the application of various imaging modalities.
Disclosure of Treatment: Informed consent for treatment is predicated on the patient’s understanding and agreement to the therapeutic approach, necessitating the physician to provide comprehensive details about the treatment, its nature, and its objectives.
Post-treatment Disclosure: Physicians are mandated to apprise patients of any occurrences during the treatment and subsequent outcomes, in addition to advising on preventive measures to avert future complications.[21]
Obligation to Disclose Medical Risks: It is crucial for the physician to alert the patient about the potential risks associated with the proposed treatment.[22]
2.3 Forms of Disclosure:
Verbal Disclosure: The intrinsic trust in the physician-patient relationship typically facilitates the conveyance of information verbally, leveraging the established rapport between the two parties.
Written Disclosure: The necessity for written disclosure is underscored in Article 49 of the medical ethics code, particularly when a patient opts against treatment after being apprised of the associated risks by the physician. The law mandates that the patient provide a written declaration of their refusal.[23]
2.4 Liability for Failing to Fulfill the Commitment to Disclosure
The essence of the commitment to disclosure lies in providing patients with a truthful and comprehensive understanding of their health condition, enabling them to make informed decisions about accepting or declining treatment while fully aware of the potential repercussions.[24]
This commitment forms part of the contractual obligation arising from the professional relationship between the patient and the physician, marked by a disparity of knowledge, as it juxtaposes a patient, often unacquainted with medical intricacies, against a professionally qualified physician.
The onus is on the physician to bridge this knowledge gap, thereby fortifying the trust endowed by the patient. This obligation is legally and professionally mandated by the regulatory and guiding frameworks governing the medical profession.[25]
Pursuant to Article 267 of Law No. 90-17, as revised by Law No. 85-05, non-compliance with the disclosure obligation by the physician results in:
2.4.1 Civil Liability:
In medical disclosure, the physician must furnish all pertinent information to the patient, facilitating well-informed and voluntary consent at the onset of the medical engagement.
French legal precedents underscore the importance of patient information to assure voluntary, informed, and enlightened consent. The physician’s liability may be contractual, anchored in the medical contract between the patient and the physician, or tortious in cases devoid of a contractual nexus:
Contractual liability:
Contractual liability necessitates the presence of fault, damage, and a causal connection between them. The physician’s negligence in fulfilling the informational duty manifests in two distinct manners:
The physician’s failure to inform the patient results in a breach, triggering their contractual liability to the patient.
The physician imparts information to the patient, who then consents; however, this consent is marred by a lack of free and enlightened will, often compromised by misunderstanding, deceit, coercion, or exploitation.[26]
An interpretation of Article 23 of the Health Law suggests that the Algerian legislature acknowledges the contractual dynamic between the patient and the physician. Typically, when a physician treats a patient under conventional circumstances, it is predicated on a tacit agreement, establishing a contractual bond between them, usually not formalized in writing.[27]
Tortious Liability:
The physician’s liability under tort law emerges from breaching a legal duty to avoid causing harm to others. Article 124 of the Civil Law states, “Any act, irrespective of its nature, if executed by a person through their fault that inflicts harm upon another, compels the wrongdoer to compensate for the resultant damage.” The negligence associated with the physician’s failure to fulfil the information obligation can manifest in two ways:
The physician neglects to inform the patient.
The physician provides information but fails to meet the necessary conditions, such as delivering inaccurate information, leading the patient to consent to the medical procedure.[28] Should this result in harm, the patient is entitled to pursue legal action and demand compensation.
2.4.2 Criminal Liability:
The act of withholding information from the patient may be construed as an infringement on their physical integrity, subjecting the physician to potential criminal prosecution under Article 264 of the Penal Code, which venerates human sanctity, dignity, and the right to physical integrity. This article prescribes penalties for anyone who deliberately causes injuries or perpetrates acts of violence or assault.
2.5 Circumstances in Which the Physician’s Liability is Exempted:
Considering the Patient’s Psychological State: Per Article 34 of the medical ethics code, a physician may withhold information regarding the patient’s health status or necessary treatments if revealing such information is likely to cause harm to the patient.
Emergency Situations: In exigent circumstances, such as when the patient’s condition is rapidly deteriorating, in cases of accidents necessitating immediate medical intervention, or when the patient is unconscious, the physician’s urgent action becomes indispensable to saving the patient’s life. Under these emergency conditions,[29] the physician is relieved from the liability of non-disclosure, confronted with the critical choice between the paramount duty to administer treatment and the secondary duty to inform.[30]
Patient’s Waiver of the Right to Information: The obligation to inform is lifted if the patient consciously relinquishes their right to information, entrusting the physician with decision-making regarding their treatment. In such instances, it is the responsibility of the physician to substantiate that the patient has declined to be fully informed or to provide explicit consent, particularly after being informed of the consequences of such a wai
UPDATING AND HARMONIZING LEGISLATION: A PROACTIVE STEP IN COMBATING TRANSNATIONAL ORGANIZED CRIME
Full text linkOrganized crime has emerged as one of the most formidable challenges globally, existing as an unavoidable reality with such severe implications that the international community is compelled to unite efforts to counteract it. Its intricate criminal structures and the multiplicity of its criminal activities characterise it.
Owing to its pervasive influence across various crucial sectors, notably the economic, security, and social realms, many nations have been overwhelmed by their inability to tackle it independently, thus underscoring the urgent need for innovative mechanisms to mitigate its adverse impacts and ramifications.
Therefore, updating and approximating legislation is an essential proactive step to combat organized crime by providing modern legal tools that allow the security and judicial agencies to keep pace with the evolving methods of this crime, starting with formulating a comprehensive definition of organized crime that includes all its components and characteristics, and enacting laws that criminalize all organized criminal activities, such as Drug trafficking, money laundering, and human trafficking, enacting other laws that allow the confiscation of profits from organized crime and their reuse in anti-crime programs, and establishing mechanisms to enhance cooperation between security and judicial agencies and other government bodies.
Keywords: Organized Crime, Preventive Action, Repressive Action, Updating and Harmonizing Legislation
Introduction
Organized crime represents an acute threat to both national and international security and stability, effectively assaulting state sovereignty by undermining and potentially demolishing social and economic institutions. It obstructs development, misdirects economies from their intended trajectories, and inflicts harm globally.
The advent of economic globalization, coupled with advancements in communication and transportation technologies, has notably facilitated the expansion of organized crime networks across borders, enhancing the variety of criminal activities they engage in.
Organized crime is by no means a novel phenomenon; it has been acknowledged for an extensive period, originating with the mafia and organized gangs in America from the start of this century. However, since the latter half of the century, as Europe began assimilating the American socio-economic model, American influences have markedly shaped European life, bringing the organized crime scenario in Europe into closer alignment with that of post-World War II America. As a result, developing nations such as Afghanistan, India, Egypt, and Iraq have become highly susceptible arenas for the deleterious effects of organized crime.[1]
Considering the escalation of violence, corruption, bribery, and the inclination towards unlawful vengeance, the significance of addressing organized crime is apparent both theoretically and practically. Theoretically, the discourse on organized crime pertains to a global understanding of criminality and the adverse effects organized crime imposes on developing countries vulnerable to security breaches and exploitation.
From a practical and operational viewpoint, organized crime involves activities crucial to both national and global economies, potentially jeopardizing these economies through illicit associations and activities such as narcotics and arms trafficking, trade in human organs, and money laundering. The tangible increase in organized crime’s magnitude has been emphatically highlighted at various United Nations summits, particularly concerning the deregulation of international trade.[2]
Organized crime has been labelled variously as predatory crime, criminal syndicates, or criminal organizations. Irrespective of the terminology used, the essence remains constant, leading to an enfeebled economy, societal disintegration, pervasive administrative corruption, and political dependence.
Such dynamics pose grave threats to state sovereignty and may even jeopardize their existence. Given its detrimental aftermath and impact across diverse sectors, especially the economic and security domains, which affect the foundational values of society, numerous countries find themselves incapable of combating it unilaterally, thus necessitating the exploration of alternative strategies to eradicate its enduring effects and residues. Consequently, this raises a pivotal question: How effective is the modernization of legislation as a preemptive strategy in combating organized crime?
To draw this study to a close in its comprehensive form, the analysis relies on a binary division structured around the following elements:
The conceptual framework of organized crime.
The extent of the effectiveness of approximating and updating legislation in combating organized crime.
1. The Conceptual Framework for Organized Crime
The designation “organized crime” does not merely refer to a category of crime identifiable by name, such as bribery, but rather describes a set of criminal activities distinguished by specific attributes. These crimes share elements and conditions unique to each, unified by the gravity of their offenses and the structured manner in which their perpetrators operate. Detailed discussion of this aspect follows below.
1.1.Definition of Organized Crime
Organized crime impacts more than just the internal security and tranquility of nations; it extends its reach to affect international security and the global community’s peace. Its severity is such that despite extensive scholarly discourse, a definitive and universally accepted definition has eluded consensus.[3]
This lack of agreement has spurred international organizations to propose their own definitions to encompass its various manifestations for effective criminalization and subsequent countermeasures.[4]
A pivotal definition provided by Article 2, paragraph “a”, of the United Nations Convention Against Transnational Organized Crime states: “An ‘organized criminal group’ shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offenses established in accordance with this Convention, to obtain, directly or indirectly, a financial or other material benefit”.[5]
1.2.Characteristics of Organized Crime
The defining characteristics of organized crime include:
1.2.1.Planning and Organization
The elements of planning and organization are fundamental to organized crime, which sets it apart from simpler, opportunistic crimes that lack systematic planning ensuring success and sustainability. Organized crime is marked by a sophisticated human and material structure tailored to its perilous criminal undertakings.
1.2.2.Professionalism
Professionalism in organized crime involves adequate maturity and experience, the employment of cunning tactics, a commitment to criminal pursuits, and a willingness to make sacrifices to further these illegal activities.[6]
1.2.3.Commitment to the Internal Order of the Group
Members of organized criminal groups are expected to show unwavering loyalty to their leader or boss, adhering strictly to his commands without question. This includes demonstrating their capability to lure others into unlawful situations, thereafter isolating themselves and tackling any challenges through extensive use of harassment, defamation, and violence, potentially escalating to physical elimination. Such actions are carried out under a regime of blind obedience, devoid of any moral conflict.[7]
1.2.4.Complexity
The complexity of organized crime is apparent through its meticulous hierarchical structure among participants, astute manipulation of material and human resources, and the extensive array of tactics available to evade detection.
1.2.5.Substantial Profit
Organized crime operates on an international scale with the primary aim of amassing significant and swift profits, far outpacing those attainable through legitimate business operations. These illicit earnings are subsequently laundered to obscure their unlawful origins before being reintegrated into the economy as seemingly legitimate assets.[8]
1.3.Domains of Organized Crime
Organized crime spans a vast array of domains, which are extensive and diverse. These include trafficking in human beings, also known as white slavery, drug trafficking, arms trafficking, child trafficking, as well as trafficking in antiques, artifacts, cultural, and intellectual properties.
Additional areas involve human smuggling, illicit disposal of nuclear waste in developing countries, money laundering, currency forgery, car theft, credit card fraud, and various forms of cybercrimes. The scope of these activities is broad and the profits are significant, making it difficult to envision any lucrative domain that does not attract the involvement of organized crime groups.[9]
1.4.Factors Contributing to the Emergence and Spread of Organized Crime
Several factors contribute to the rise and proliferation of organized crime, which include:
1.4.1.Free Market System
The free market system provides expansive opportunities for commercial activities, presenting significant opportunities for organized crime groups to conduct operations that escape regulatory oversight. This phenomenon became particularly pronounced following the dissolution of the Soviet communist regime, which had previously imposed strict economic controls.[10]
1.4.2.Weak and Corrupt Criminal Justice System
When the criminal justice system is perceived as ineffective or corrupt, it erodes public trust in its capacity to enforce the law fairly. This disillusionment often drives individuals, especially those from unclassified or politically marginalized groups, towards seeking justice or resolution through organized crime networks, which appear more effective or accessible.[11]
1.4.3.Social Decay
A complete disintegration of social and legal norms leads to an increase in crimes such as prostitution, drug trafficking, gambling, and forgery. Contributing to this decay are the collapse of traditional values and morals, the pursuit of quick profits by any means, the deterioration of educational systems, rising rates of illiteracy and unemployment, widening gaps between social classes, and discrimination based on political, regional, ethnic, or sectarian differences.
The weakening of family bonds further exacerbates this decay, creating fertile ground for the spread of organized crime.
1.4.4.Administrative Corruption
When administrative systems are riddled with corruption and bribery, it enables organized crime groups to manipulate or control government bodies.
1.4.5.Wars
Wars disrupt the normal functioning of constitutional governance and legal systems, creating environments conducive to the illicit trade in weapons, intellectual property, and cultural artifacts. Such conditions are prevalent in many conflict-ridden Arab countries, where the breakdown of order provides a perfect opportunity for organized crime to flourish.[12]
1.4.6.Non-integrated Minorities
Minority groups that find themselves in conflict with prevailing political systems often strive to maintain their original national identities. In doing so, they may establish security and social barriers to protect themselves from state oppression. To support these efforts, they frequently rely on external aid, which may include alliances with organized crime groups that provide necessary resources or interventions within society.[13]
1.5. Globalization of Organized Crime
In no prior epoch has such a vast number of individuals worldwide possessed as much awareness of international events and the distinctive traits of different peoples as they do in the current era. Today, the global population can tap into an unprecedented wealth of information through a plethora of media and communication technologies, of which the Internet is a pivotal component.[14]
However, it is deeply regrettable that these platforms of knowledge, which have the potential for purely legitimate use, are increasingly commandeered by organized crime syndicates. These groups cunningly exploit these technologies for illicit purposes.[15]
The paradigm shift in criminal activity from physical to intellectual effort marks a significant evolution in the nature of crime. Today, a criminal proficient in digital technologies can remotely infiltrate bank accounts, execute transactions, and purchase goods with other people’s money. They can also engage in sophisticated cybercrimes, such as credit card fraud, which poses severe risks to the economic stability and security of nations.[16]
The rapid advancements in communication technologies, notably the Internet and electronic media, have endowed organized crime with a distinctly transcontinental character. Traditional geographical and political boundaries have become virtually irrelevant as criminal enterprises operate on a multinational scale.
The orchestrators of these crimes can operate across multiple countries, coordinating actions that are executed globally. This technological prowess, combined with a regulatory environment characterized by economic and social liberties that verge on anarchic, and the generally weak oversight mechanisms, substantially facilitates the operations of organized crime.[17]
These elements enable them to achieve their nefarious objectives with little risk of detection, leaving virtually no evidence that could be traced back to them.[18]
2.The Effectiveness of Modernizing and Harmonizing Legislation in Combating Organized Crime
Organized crime entities boast international expertise, proficiency, and a criminal culture adept at crafting effective strategic plans. They exploit disparities in criminal legislation across countries, leveraging the variances spawned by diverse political, economic, and cultural systems.
Additionally, the uneven development of economic systems across nations allows the material components of crimes to be executed transnationally, thereby complicating enforcement and punishment. Assuming that punitive measures can be effectively applied, this would necessitate a minimum degree of legislative harmony among the various national laws.[19]
Thus, there is a compelling need for countries to modernize and align their legal frameworks to bolster the efficacy of both preventive and repressive measures against organized crime.
The term “legislative system” encompasses a set of written legal rules established by the relevant authorities within a state to regulate the interactions of individuals within society. This system may include constitutional, organic, ordinary, or secondary legislation enacted by legislative or executive powers and applicable across various domains such as constitutional, civil, commercial, criminal, administrative law, and more, at both international and domestic levels.[20]
Legislation is inherently advantageous because it responds dynamically to the shifting demands of society. Its ease of creation, amendment, and repeal allows it to adapt swiftly to new social and economic circumstances. Moreover, the legislation serves as a vehicle for societal reform and advancement by incorporating modern systems, embracing new principles, or adapting successful practices from other nations deemed beneficial by state reformers and thinkers.[21]
The clarity with which legislation is drafted also aids individuals in understanding their rights and responsibilities, thereby providing a level of transactional stability and security.[22]
These attributes refute any notion of legislative rigidity or sanctity and dispel concerns that prevailing authorities could manipulate it for self-serving ends. This perspective is supported by legislative reforms in numerous countries, including France, where legislation has evolved significantly to remain aligned with contemporary realities and intellectual developments.[23]
In this context, it is crucial to confront organized crime by continuously updating and harmonizing legislative frameworks to ensure the effectiveness of preventive and repressive strategies on national and international levels.
2.1. Ensuring Preventive Action Against Organized Crime
Given the diversity of causes and motivations behind organized crime, it is imperative that the evolution of legislative frameworks encompasses all facets of society.
2.1.1. In the Security Field
The security apparatus within any nation serves as the practical arm of enforcement for existing legislation and is intrinsically linked to the strategies for countering organized crime. Therefore, nations must avoid restrictive legislation that fails to evolve in response to the changing dynamics of crime, particularly organized crime.[24]
This type of crime impacts the security of all nations, threatening their integrity and sovereignty. Consequently, there is a compelling need for countries to collaborate and forge new international cooperation mechanisms under the auspices of both regional and global organizations.[25]
This includes the formation of international treaties that allow for the criminalization of diverse criminal activities through specific legal provisions tailored to impose unique criminal sanctions. These agreements must clearly define the material and moral components of crimes to eliminate any ambiguity about the criminal intent and actions of the offenders.[26]
Possible security measures to enhance the level of security include:[27]
Broadening the reach of criminal laws to combat organized crime and empowering national legislations through international treaties to pursue criminal elements across borders in collaboration with the implicated countries. This approach represents an exception to the principle of the territoriality of criminal law and applies the principle of international solidarity in combating global crime.
Facilitating coordination between security forces and high-tech companies to ensure that security personnel are informed about the potential criminal use of technological means.
Establishing operational units affiliated with international police that are technically and administratively equipped to conduct investigations and pursuits. Additionally, creating specialized international units focused on international crime, with interconnected branches across all member states, tasked with research, investigations, scientific analysis, and aggregating and disseminating information that can be exchanged among member nations.
Establishing governmental institutions that legislate and enforce these preventive measures will not only potentially eradicate the phenomenon of organized crime but also enhance the respect and legitimate status of these nations among their citizens and the international community.
2.1.2. In the Economic Field
The economy is a primary driver of national development and consequently influences international relations. Control over economic policy is tantamount to control over international strategic decisions.[28]
Conversely, a nation that is unable to stabilize its economic environment is susceptible to external domination, whether by foreign states, international organizations, organized crime syndicates disguised as multinational or tourist corporations, or other entities that ostensibly conduct legitimate operations but generate illicit revenues.[29]
Recognizing that reform starts from within, to combat organized crime at the economic level, nations should implement a range of measures, including:[30]
Reducing taxes and fees for citizens to prevent the erosion of their financial resources is particularly important as most citizens have limited incomes. This measure should be counterbalanced by increasing the tax burden on wealthier and more influential individuals to lessen the pronounced economic disparities that may push the less affluent towards organized crime as a means of asserting their rights.
Enhancing the living standards of citizens through equitable redistribution of the national wealth surplus. This approach aims to combat poverty effectively and block any exploitation of citizens’ deteriorating economic conditions for recruitment into organized criminal activities such as human trafficking or instances where individuals are compelled to sell their children for sexual exploitation or organ harvesting.
Enabling the monitoring and tracking suspicious financial transactions and pursuing funds with unclear origins, even those within secretive digital accounts. Additionally, overseeing the economic and commercial activities of individuals associated with these accounts to deter their involvement in organized criminal endeavours.
2.1.3. In the Social Field
Social cohesion is indispensable in the battle against organized crime. Society’s confidence in itself, rooted in the respect for its rights and freedoms and the earnest fulfilment of its responsibilities, is key to unlocking its potential and propelling it to higher societal levels. Several strategies can be implemented to foster this cohesion, including:[31]
Actively combating social and moral malaises by enforcing a framework of esteemed principles. These include the “principle of reward and punishment”, the “principle of responsibility”, and the “principle of reciprocity between rights and duties in the relationship between individuals and the state”. This framework ensures that every individual receives their due rights without bias or detriment and fulfils their obligations fully without circumvention or diminishment.
Providing employment opportunities for all capable individuals to alleviate the unemployment crisis and offering education to eradicate illiteracy are crucial steps. Maintaining public health through accessible and affordable medical care is also vital, as these measures are among
LEGAL PROTECTION FROM AN INTERGENERATIONAL JUSTICE PERSPECTIVE: A CONCEPT FOR LEASING FREEHOLD LAND IN THE TOURISM AREA IN BALI
Full text linkIn accordance with developments over time and the development of tourism as a business field in Bali, the need for land as a supporting factor for tourist destinations is increasing. For instance, in Bali, several destinations never stop being developed, either in coastal areas, in cities or in the mountains, which have become tourism objects and are balanced with local wisdom as instruments of cultural tourism destinations hence sometimes the need for land to support the tourism activities is obtained by lease often does not take into account for next generations who will obtain the same rights due to a very long lease period. This research mainly discussed the process of leasing freehold land in several areas in Bali and how the rental period for freehold land in Bali shall be regulated to reflect fairness between generations in the future. This is empirical research that focuses on the empirical symptoms that can be observed in real life. The analysis was carried out qualitatively and presented as an analytical description. The research indicated that the process of the right to lease a freehold land in Bali still happens, especially for the tourism business, agreements are made before a Notary as authentic deed, and there shall be a concept in terms of lease period that mentions specific time if the freehold land is being developed for tourism destinations, hence it can be perceived by next generations.
Keywords: Intergenerational Justice, Right to Lease, Land, Tourism
Introduction
Indonesia is known as an archipelagic country because of its thousands of islands. One of the islands is Bali Island. It cannot be denied that Bali is well-known for its traditions, culture and natural beauty. Not only domestic tourists, but foreign tourists also come to Bali for vacation or business.[1] Tourism is not only related to the phenomenon of people travelling, but also has an impact on issues such as achieving social and cultural goals, foreign policy, economic development, environmental protection and sustainable development planning.[2]
Land cannot be separated from human life and society. The dependence of humans and society on land is like a baby on its mother. Laws that live and develop in Indonesian society need to reinterpret their function and meaning in the development of national law, because, in fact, they still have wisdom in enforcing the applicable rules in organizing their lives fairly and conscientiously.[3]
Imam Sudiyat mentioned that “In a country whose people desire to implement democracy with social justice, utilizing the land for the greatest prosperity of the people is a matter of coditio sine qua non”.[4] In customary law, it can be seen that the main concept is that land is under the control of a legal association based on the principle of togetherness, known as customary rights or hak ulayat. This right by Van Vollenhoven,[5] known as “beschikingsrecht”, while the land that constitutes the territory is called “beschikingkring”. This term is translated into Indonesian as customary rights or lordship rights, while the term beschikingkring is translated as customary environment.
The existence of land in Bali, especially the assessment of the strategic meaning of land and its economic importance in supporting people’s lives, has a significant influence on the land, including customary land, which is not impossible to change its function, which is the basis for excessive use of land. One source of this problem is the construction of tourism facilities, resulting in the economic value of land being very high. The emergence of tourism-supporting facilities and buildings on proprietary land or customary land indicates that there has been a change in the function of land, from a social-religious function which was initially dominant to a more dominant economic function and in the context of obtaining it through leasing of land owned by stated in an agreement.
Prof. Subekti stated the meaning of the agreement, namely: “An agreement is an act pursuant to which one or more individuals commit themselves to one another”.[6] The definition of agreement is contained in Article 1313 of the Indonesian Civil Code (hereinafter Civil Code) which has the essence that an agreement is an act or action carried out by one or more people to bind themselves to one or more other people. Lease in the Civil Code are regulated in Articles 1547 to 1600. An agreement must have an intertemporal aspect: the parties agree today to do something the next day. In the third book of the Civil Code, Agreements regulate obligations that arise from agreements, as well as regulate obligations that arise from law.[7]
Lease agreements are currently one of the solutions for owning land, hence they can be used as a tourism development function in Bali. Not only land owned by individuals but even customary land controlled by traditional villages can also be rented out to investors to develop several villages/regions in Bali in particular; however, land ownership solutions through leases can sometimes be irregular in determining the stated period. In each agreement made, there is a need for regularity in making agreements with investors regarding the agreed period; hence, land use for tourism development can always be monitored and controlled by the land owner so that the current and subsequent generations can feel the benefits.
The main aspect of tourism is tourist attractions. According to Mill (1992), The definition of attraction is an activity or place that has uniqueness or advantages that attract people to visit that place. The existence of these attractions is very important because, as previously mentioned, this attraction is a stimulant for the development of tourism in an area.[8]
Compared to journal articles that have been published that discuss land rentals, compared to this article, it can be seen that this research specifically discusses a form of regulation in the period of lease of land for tourism from the perspective of intergenerational justice. Therefore, two legal issues can be raised in this paper, namely the process of the right to lease freehold land in several areas in Bali and how the lease period for freehold land in Bali shall be regulated to reflect fairness between generations in the future.
The purposes of this research are to find out how the right to lease freehold land in Bali for tourism purposes occurs and to formulate the lease period for freehold land in Bali that shall be regulated to reflect fairness between generations in the future.
Methodology
The research method used is an empirical research method. The data sources used are primary data and secondary data; primary data is data sourced from field research, namely data obtained directly from the first source, either from informants or respondents; secondary data is data obtained not directly from the first source but from data - documented data in the form of legal materials. Next, the data obtained has been collected and analyzed qualitatively and presented as an analytical description.
Result and discussion
The Process of the Right to Lease a Freehold Land in Bali for Tourism Purposes
Tourism development in Bali has triggered the need for land to greatly increase in several villages in Bali. Using land to support tourism is a good choice to improve the community’s economy. The legality of the solution to be able to own land through leasing is stated in an authentic deed made before an authorized public official, namely a Notary.
Salim provides a legal definition of contract or agreement, namely: “The entirety of legal norms that regulate the legal relationship between the parties or is based on an agreement to give rise to legal consequences”, which means that any kind of legal norms that manage legal relations between parties or are based on agreements that can result from legal consequences. Following the provisions in Article 1320 of the Civil Code, every agreement always has four conditions that have been determined by law,[9] namely:
There must be consent of the individuals who are bound thereby; The word “agrees” in Kamus Besar Bahasa Indonesia known as: setuju; semufakat; sependapat; seia sekata. The existence of an agreement is significant in an agreement that contains an element of free will from the parties. An agreement means that the parties express their respective wishes to create an agreement that must be compatible or in accordance with one another.[10]
There must be the capacity to conclude an agreement. Legal subjects in the Civil Code are limited, namely, who can act as a party in a contract or agreement. It is necessary to know that people are legally unable or do not have the legal position to enter into an agreement. Persons who are not legally competent to enter into contracts, namely: “Minors are those who have not reached the full age of 21 years and who have not previously entered into matrimony”; “individuals who, due to mental incapacity, insanity or madness have been put under guardianship”; and “married women, in the events stipulated by law, and in general, individuals who are prohibited by law from concluding specific agreements, If a married woman wants to enter into an agreement for certain transactions, she must obtain approval from her husband”.[11]
There must be a specific subject. The existence of a problem or certain thing is the object of the agreement, namely the achievements that the debtor must carry out.[12]
There must be an admissible cause. The word causa(Latin) translated as the word cause, which is meant in the agreement, refers to the content and purpose of the agreement, not something that causes someone to enter into an agreement. According to Article 1335 of Civil Code, “Any agreement without a cause, or concluded pursuant to a fraudulent or implausible cause, shall not be enforceable”. This means that an agreement must be carried out in good faith.[13]
Lease rights are a person’s right to use, cultivate and enjoy the results of another person’s ownership by paying rent. Property that can be rented includes land (rice fields, gardens, fields, ponds) from which tenants can make a profit. The right to lease land can be valid with rent payments paid in advance or even back rent payments with land proceeds gradually obtained. Concerning the right to lease land in Indonesia is regulated under Article 44 of Law No. 5 of 1960 concerning Basic Regulation on Agrarian Principles (hereinafter Agrarian Law), namely: “A person or a corporation has the right to lease land if he is entitled to utilize land owned by another for the purpose of building, by paying to its owner an amount of money as rent”.[14]
Lease rights are a person’s right to use, cultivate and enjoy the results of another person’s ownership by paying rent. Property that can be rented includes land (rice fields, gardens, fields, ponds) from which tenants can make a profit. The right to lease land can be valid with rent payments paid in advance or even back rent payments with land proceeds gradually obtained. The right to lease land in Indonesia is regulated under Article 44 of Law No. 5 of 1960 concerning Basic Regulation on Agrarian Principles (hereinafter Agrarian Law), namely: “A person or a corporation has the right to lease land if he is entitled to utilize land owned by another for building, by paying to its owner an amount of money as rent”.
The agreement of the right to lease land in the community is in accordance with the implementation of the Legal System Theory by Lawrence M. Friedman.[15] Based on the theory, it is loosely translated as a structural component of a system is a part of the framework that persists in the work of the system’s institutions which provides a kind of form and limit to criminal acts, serious mistakes that go beyond the limits.
With regard to the regulation of land in Bali, especially in terms of the right to lease land, this indicates that land is still very much needed to open new tourism destinations or support tourism in Bali. Every process of conducting the right to lease a freehold land must pay attention to the process and consider the period, which is an essential condition in the agreement. Hence, the agreement made now will not harm future generations and can be perceived to be fair to the next generation.
Legal Arrangement of Lease Period for Freehold Land in Bali to Reflect Intergenerational Justice
According to UN Tourism, tourism is a social, cultural, and economic phenomenon which entails the movement of people to countries or places outside their usual environment for personal or business/professional purposes.[16] In Indonesia, the word “tourism” is known as “pariwisata”. The word “pariwisata” comes from two syllables, namely “pari” and “wisata”. “Pari” means many, repeatedly or frequently, while “wisata” means journey.[17] According to Suwantoro (1997), the term tourism is closely related to tourist travel, namely as a temporary change of residence for someone outside their place for some reason and not to carry out activities that generate wages. Thus, it can be said that a tourist trip is a journey undertaken by one or more people with the aim of, among other things, getting enjoyment and fulfilling the desire to know.
Tourism plays an important role in economic development in various countries. The tourism sector has the potential to be developed as a source of regional income. It is hoped that the development program and utilization of regional tourism resources and potential can contribute to economic development to obtain original regional income. Tourism has various economic impacts. According to Wahab (2007),[18] the impact of tourism activities from an economic perspective is not only more influential than the environmental, social and cultural impacts, but the economic impact is the impact that is most eagerly awaited. This is because almost all countries or regions tend to measure the position and benefits of tourism in economic terms.
Tourism development in Bali is a top priority alongside agriculture and small industry and is a mainstay for regional economic development.[19] As a region that does not have natural resources that can generate foreign exchange, such as forests and mines, tourism development that capitalizes on regional culture is increasingly being improved, therefore it is hoped that it will be able to contribute to foreign exchange earnings, increase regional income and community welfare, create jobs, encourage people’s economic activities, preservation of culture and natural beauty. Bali, as an icon of the national tourist destination, has a vital role in achieving the goals set by the government. Regional autonomy policies were given to each district to focus more on exploring their tourism potential.[20]
The development of the tourism business in Bali has resulted in the demand for land, which is an important factor in tourism development. This condition has caused the transfer of several customary lands, with ownership rights being carried out frequently. For instance, in Jimbaran Village, customary land, which is controlled as the customary right of the customary law community which has inherent rights and obligations, is starting to continue to shift towards being productive from an economic perspective, and this has an impact on the economic income of the community itself, as well as privately owned land owned by individuals which is often rented out for long periods.
From the perspective of law, it can be seen that the law was made or formulated to provide a legal guarantee, justice and certainty, and it is expected to play a role in ensuring the peace of citizens in realizing their life goals or achieving their dreams. Because the law is an effort to maintain human existence in society.[21] There will always be related legal developments aimed at justice in tourism business activities. Business law is a set of legal rules established to regulate and resolve problems that arise in activities between people, especially in trade.[22]
Tourism has attracted attention in the literature on economic development. The main thrust in many studies, namely on the economic impact of tourism, is to measure direct and indirect impacts on the economy. Tourism development has been the focus of much recent research in the literature, as this industry not only increases foreign exchange earnings but also creates employment opportunities for tourism destination countries, thereby spurring economic growth.[23] Hence, the interconnectedness of the influence of tourism in Bali has a huge impact on the proprietary lands and customary lands of each traditional village in Bali. Because it can be seen that the village autonomy rights granted by the government to regulate and develop tourism make the villages in Bali increasingly show and create a new icon of tourism, which makes the village known to the world from the tourism development. It cannot be separated from the fact that customary land owned by communal rights is starting to be used for this purpose, with applicable regulatory procedures and cooperation with third parties or private parties to develop its potential through agreements and land rental agreements, which are used as a binding legal basis between third parties and traditional villages in Bali.
Conclusion
The development of the tourism business in Bali has resulted in the need for individually owned land and customary land, which are important factors in tourism development. Conditions like this cause land transfers to occur frequently. Jimbaran Village, for example, has customary land controlled as customary rights of the customary law community whose inherent rights and obligations are starting to shift towards being productive from an economic perspective, and this will impact the economic income of the community itself. In its legality, the transfer of customary land is based on a lease agreement for several tourist attractions. It should also pay attention to the agreed period; therefore, it reflects a form of intergenerational justice. A lease is a right of use where the time provisions contained in it are essential principles that must be fulfilled. Hence, the term used as a reference should be the period specified in the regulations regarding the right to use land.
Bibliography
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Angelin Nadya Alouw, Anderson Guntur Kumenaung, and Debby Ch Rotinsulu, (2021). “Pengaruh Sektor Pariwsata Terhadap PDRB Provinsi Sulawesi Utara”, Jurnal Pembangunan Ekonomi Dan Keuangan Daerah 22(2), pp. 1–13.
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THE RULE OF LAW THROUGH JUDICIAL ACTIVISM IN SOUTH AFRICA
Full text linkThe South African Courts frequently juggle different roles within the country’s governance. This causes discomfort among some of the role players within the polity as it is seen as judicial encroachment in matters outside the court’s role. In the South African context of separation of powers, the role of each branch of government is not always clearly defined, and now and again, it gains perspective as courts interpret parliamentary legislation and executive policies. The court’s role and limitations often come under scrutiny. This causes conflicts between the respective branches of government regarding the extent of judicial intervention concerning other branches of government, namely the legislature and executive. This article examines the role and limits of judicial intervention in the terrain of other branches of government within the context of separation of powers as envisaged by the South African Constitution. The doctrine of separation of powers entails the establishment of a trilateral government. The envisaged government consists of the legislature, which enacts laws, an executive that recognises and executes the law and an independent judiciary to regulate public power when all else fails. The article attempts to clarify the place and role of the judiciary in upholding the rule of law in a constitutional state such as South Africa amid rampant complaints of judicial overreach.
Keywords: Separation of powers, constitutional supremacy, rule of law, legislature, executive, judiciary, judicial role, ultimate guardians of the Constitution.
Introduction
South Africa is a constitutional state founded on, among other things, the supremacy of the Constitution[1] and the rule of law.[2] The government consists of three branches of government within each sphere, namely: the legislature, the executive, and the judiciary. The legislative authority is vested in Parliament.[3] Section 44[4] confers on the National Assembly the power to amend the Constitution and pass legislation in harmony with and within the limits of the Constitution. Section 55[5] gives power to the National Assembly to consider, pass, amend or reject any legislation before the Assembly. The National Assembly is further obligated to provide mechanisms to hold the executive accountable and to maintain oversight on the exercise of the executive functions.[6] In this way, each branch will be a check to the others.[7]
The executive authority is vested in the President, Deputy President, and cabinet members, consisting of Ministers and Deputy Ministers. Their function is to implement the law, develop and implement national policy and any other functions conferred to them by the law and the Constitution.[8]
Judicial authority is vested in the courts. Courts are constitutionally obliged to be impartial in their interpretation and application of the law, which is subject only to the law and the Constitution. No person or organ of the state shall interfere with the functions of the judiciary.[9] Organs of the state must, at all costs, protect the independence and dignity of the courts. Decisions and orders issued by courts are binding to all persons or organs of state to which they apply.[10]
The Constitutional Court is the highest in the land[11] and holds exclusive jurisdiction on certain matters.[12] Section 172 of the Constitution provides for judicial review and empowers competent courts to declare invalid any law or conduct that conflicts with the Constitution.[13] At the heart of this article is testing the perceptions of judicial overreach within the context of South Africa’s separation of powers structure in an attempt to clarify its role in a constitutional democracy. There is an introduction, part one tackles judicial encroachment, part two discusses judicial role and review powers, part three addresses upholding the rule of law, part four discusses judicial activism and constraints, and the last part is the conclusion.
1. Judicial Encroachment or a Maturing Democracy
South Africa may, arguably, be the most litigious state. This has been profoundly experienced throughout the last decade, and the trend does not seem to be declining to date. As the country’s democracy matures, there has been an increase in litigants approaching courts to have their grievances resolved. These cases range from intergovernmental disputes to private individuals approaching courts to seek different remedies against the government. This right is, of course, constitutionally granted by section 34 of the Constitution, which reads as follows:
Everyone has the right to have any disputes that can be resolved by application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.[14]
The access to courts and enforcement of rights is further entrenched, to the extent of approaching the courts in the interests of other persons, in section 38 of the Constitution.[15] It is, therefore, on this basis that people are becoming more inclined to approach the courts whenever an infringement of rights or the law seems imminent.
The governance of South Africa, over the past decade, seems to be heavily reliant on courts. This trend has been evident in the range of court cases brought by various political parties represented in Parliament against the different government institutions. The most notable one was the Economic Freedom Fighters and Others v Speaker of the National Assembly and Another.[16] The court was approached to review the conduct of the legislature, which was alleged to be failing its constitutional obligation of holding the executive accountable, particularly the President.[17] This was the peak in the series of various litigations that concerned the governance of South Africa, to the extent that even the then Head of the Judiciary, Chief Justice Mogoeng Mogoeng, criticised the extent of judicial involvement in matters of the politically elected arms of the state. In this matter, he referred to the judgement as a ‘textbook case of judicial overreach’ that cannot be permissible in a constitutional state like South Africa.[18] This criticism fuelled an already ripe public outcry about judicial overreach within the country’s governance. This is conspicuous among politicians who hold public offices whenever litigation is imminent.[19]
In New Nation Movement NPC and Others v President of the Republic of South Africa and Others,[20] the Constitutional Court had to pronounce on the constitutional validity of the Electoral Commission Act.[21] The Electoral Act was declared unconstitutional to the extent that it required candidates to be elected to the National Assembly and provincial legislatures only through their membership to political parties and not as independent candidates without party affiliations.[22] It was further held that the right to contest the National Assemble and provincial legislature as independent candidates existed from the time the Constitution took effect. Although it was initially not exercisable, there was a ‘sunset to that bar’, and there is no reason not to allow individual adult citizens to exercise the right that has always been there but initially dormant and not exercisable because of the restriction.[23] The Constitutional Court, in its order, suspended the operation of invalidity for twenty-four months to allow the opportunity for Parliament to remedy the deficiency which gave rise to the unconstitutionality. The court is thus testing parliamentary legislation for possible violation of rights and declaring invalid provisions found wanting to refer the matter back to the legislature to remedy the constitutional defect.
Judicial intervention in the legislative process concerning the Electoral Act facilitated a progressive step towards advancing South Africa’s democracy in that, as a result of its pronouncement in NPC v President, the legislature affected an amendment. Thus, the Electoral Amendment Act[24] was enacted by the legislature and signed into law by the President of the Republic of South Africa. Among other things, the object of this Act is to:
To amend the Electoral Act, 1998…insert certain definitions consequential to the expansion of this Act to include independent candidates as contesters to elections in the National Assembly and provincial legislatures;…to provide for the nomination of independent candidates to contest elections in the National Assembly and provincial legislatures; to provide for the requirements which must be met by persons who wish to be nominated as independent candidates; to provide for the inspection of copies of lists of independent candidates and accompanying documents; to provide for objections to independent candidates; to provide for the inclusion of a list of independent candidates entitled to contest elections; to provide for the appointment of agents by independent candidates; to provide that independent candidates are bound by the Electoral Code of Conduct; to provide for the return of a deposit to independent candidates in certain circumstances…[25]
This was a significant milestone in South African democracy as it broadened the pool of participation of candidates outside partisan lines. This means that those who have been aggrieved by the conduct of political parties for the past thirty years of constitutional democracy now have a wider choice of independent candidates. One cannot help but be optimistic about the future of the South African Parliament. The seventh general election will take place in May 2024.
The South African context of separation of powers incorporates an element of checks and balances through the provisions of the Constitution. This demands that notwithstanding the separation of powers between the different government institutions, these institutions must still maintain an oversight role over one another. This constitutional system requires the legislature to hold the executive accountable for its exercise of public power, while the executive has a role in the enactment of legislation and the ultimate signing of bills into law in terms of section 79 of the Constitution. On the other hand, the courts are constitutionally empowered to review, declare and set aside any conduct that violates the Constitution. This also extends to the review of the conduct of any government institution or organs of state. Therefore, the checks and balances embodied in the South African Constitutional model of separation of powers doctrine anticipate the inevitable intrusion of one branch of government into the terrain of another. The doctrine’s main objective is to control government by separating powers, however, the interaction between the respective branches of government occurs in a manner that avoids separating power so completely that the government is unable to take appropriate measures in the public interest.[26]
In United Democratic Movement v Speaker of the National Assembly and Others,[27] the Constitutional Court reiterated the constitutionally entrenched oversight role over the conduct of the executive by the legislature and held that “Parliament’s scrutiny and oversight role blends well with the obligations imposed on the Executive by section 92; it is provided for in section 55 of the Constitution”.[28] In this case, Parliament was not clear about the extent of its powers to prescribe a vote by secret ballot when its members had to fulfil their constitutional mandate of holding the President to account; thus, removing him from office. This secret ballot vote may have been necessitated by the fact that the majority of the legislature were members of the ruling party, which was led by the President, and were simultaneously members of the Cabinet, which the President also headed. The Constitutional Court unanimously declared that the Speaker of the National Assembly has powers to prescribe vote by secret ballot, and this is a choice best left to the National Assembly through the Speaker to make in terms of section 57 (1) of the Constitution.
2. Judicial Role and Review Powers
Judicial review is the power conferred on courts by the Constitution to scrutinise and declare unconstitutional any legislation or any conduct that infringes on the rights enshrined in the Bill of Rights or otherwise offends against the provisions of the Constitution.[29] The fundamental nature of judicial review is that it empowers courts to declare invalid any law or conduct that is found to be in contravention of the Constitution; if declared invalid such legislation or action will have no legal force or effect.[30] Courts are tasked with an enormous role of checking the exercise of power and averting any abuse of power by the other two branches of government.[31] However, the constitutional mandate of judicial review, placed upon the courts occasionally comes under public scrutiny. In Doctors for Life International v Speaker of the National Assembly,[32] the Constitutional Court held that courts are given the responsibility of being the ultimate guardians of the Constitution and its values.[33] It was further held that judicial interference must only occur when mandated by the Constitution; the Constitution requires courts to ensure that all branches of government act within the law and fulfil their constitutional obligations.[34]
The judiciary is one branch that exists and functions alongside politically elected legislative and executive branches of government within the whole structure of the separation of powers doctrine. When exercising its judicial review powers, the judiciary must maintain independence as it has to uphold a constitutional state and its proper governance. When all political accountability-ensuring measures provided for by the Constitution prove to be ineffective, courts are usually called upon to pronounce the right steps best suited to uphold and enforce the Constitution.[35] In re: Certification of the Constitution of the Republic of South Africa[36] it was held that “as the separation of powers doctrine is not a fixed or rigid constitutional doctrine, it is given expression in many different forms and made subject to checks and balances of many kinds”.[37]
3. Upholding the Rule of Law
Section 2 of the Constitution states that “this constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled”.[38] The rule of law, on the other hand, entrenches the principle of legality and abolishes arbitrary actions.[39] Therefore, the country is governed in accordance with the Constitution and whatever action is taken within the Republic must conform to the Constitution.
Two theories of constitutionalism emerge from the debate on judicial review, namely political and legal constitutionalism.[40] The former is premised on the notion that political decisions should be taken by politicians, in that political matters require political remedies and there is no room for the judiciary to adjudicate on such matters. Judicial intervention would take political matters out of the hands of politicians to the hands of judges.[41] Legal constitutionalism, on the other hand, is premised on the notion that judicial review should be the tool for holding those exercising political power into account as the judiciary can isolate itself from public pressure.[42] Political constitutionalism seems to be more popular among some politicians, however, such constitutionalism remains, nothing more than a theory. South Africa is a constitutional democratic state founded on constitutional supremacy and the rule of law.[43]
All the South African government branches have one common goal, which is to uphold the Constitution. This should not be perceived as a competition between the branches; it requires all branches to work independently and collectively to give effect to the provisions of the Constitution.[44] The constitutional principles of cooperative government reiterate the nature of independence and interdependence between the three branches of government, and this is evident throughout the text of the Constitution. It demonstrates the kind of South African model of separation of power based on checks and balances, informed by the country’s realities.
Judicial intervention on matters of other branches is a ‘constitutional dialogue’, where the court strikes down legislation and the legislature responds by amending it, or when the court invalidates executive decisions, and the executive responds by formulating new policy.[45] Indeed, the courts will and are still crafting a distinctively South African separation of powers.[46]
4. Judicial Activism and Constraints
In S v Makwanyane and Another,[47] the Constitutional Court was approached to test the constitutional validity of the death penalty provided for in Section 277(1) (a) of the Criminal Procedure Act No. 51 of 1977. The provisions of this section were declared unconstitutional, as they were in contravention of, inter alia, the right to life enshrined in section 9 of the Interim Constitution.[48] This landmark case marks the first opportunity for the judiciary to test parliamentary legislation for constitutional validity. It further illustrates the critical role of courts in exercising judicial review on laws that may be inconsistent with the Constitution and protecting the rights of individuals.
In Mazibuko v Sisulu and Another,[49] the courts pronounced judicial restraint and held that courts should not be drawn into political disputes, resolutions of which properly fall on another institution established under the Constitution; political issues should be resolved at the political level.[50] From this, it may be deduced that courts are constitutionally mandated to ensure their judicial oversight over other branches of government within the constitutional boundaries. This demonstrates reluctance on the side of the judiciary not to allow other organs to favour litigation over internal settlement procedures.[51]
The exercise of public power by government functionaries must be rationally connected to the purpose of that power and not be arbitrarily exercised.[52] It follows then that if, when viewed objectively, the exercise of power is rational and within the authority of such functionary a court cannot intervene.[53] In the exercise of their powers, courts need to pay due regard to the role of the executive and the legislature in a democracy, and when it is appropriate to do so, must make orders that affect policy as well as legislation.[54] However, courts must always bear in mind that policy should be flexible and can be changed whenever the executive deems it fit to do so, as long as such change is consistent with the Constitution and the law. Therefore, court orders affecting policy choices should not be formulated in a manner that precludes the executive from exercising such legitimate choices.[55] Courts are mandated by the Constitution to be impartial arbiters who must apply the law without fear, favour or prejudice, subject only to the law and the Constitution.[56] The doctrine of separation of powers should not be construed as rendering courts ineffective when confronted with a constitutional challenge concerning executive action or legislation enacted by parliament.[57]
Judicial independence is central to the constitutional arrangement of South Africa and is implicit in the rule of law and separation of powers, which are both foundational to the Constitution. The independence of courts is reinforced by the provisions of sections 165(3) and (4) of the Constitution.[58] Section 165 (3) states that “no person or organ of state may interfere with the functioning of the courts” and subsection four states that “organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts”.[59] Institutional independence of the judiciary is a constitutional norm and principle that goes beyond the Bill of Rights and therefore not subject to limitation.[60] Judicial independence is fundamental and indispensable to the effective functioning of courts in a constitutional democracy based on the rule of law.[61]
In Matatiele Municipality and Others v President of the Republic of South Africa and Others,[62] it was held that the provisions of the Constitution must be construed purposively and in the light of the Constitution as a whole, taking into account fundamental principles of the country’s democracy.[63] Courts should be less emphatic about the doctrine of separation of powers and more about how the judiciary should work within the boundaries of the doctrine to promote a better dialogue between the legislature, the executive and the judiciary. Furthermore, this mission should be aimed at advancing the principle of democratic accountability of public institutions and their commitment to constitutional rights.[64]
The judiciary’s role is not to ‘second guess’ the legislative and executive branches of government or interfere in matters that are not their concern. Their task is to give meaning to the Constitution and, where possible, to carry this task in a manner that is not detrimental to effective governance.[65] This role extends to helping those who are constitutionally incapable of helping themselves; if the solution has already been provided by a branch of government concerned, and it is within their obligation to address their problem effectively, the judiciary is duty-bound to let them do it themselves. The running of state affairs is a trilateral responsibility shared by the executive, the legislature, and the judiciary.[66]
Conclusion
The Constitution entrenches functional independence and interdepende
A Preliminary Agreement in Franchising Business - Risks and Challenges
Full text linkThis article constitutes a Preliminary Agreement in Franchising. The research process focuses on theoretical and practical aspects of legal issues that concern franchise agreement.
This article represents problematic legal issues, experience and tradition in legalizing pre-sale information disclosure plays a significant role in the franchise business. Franchisee maintenance justice mechanisms signify the importance of pre-sale information disclosure and provision principles in the initial stage of making pre-agreements.
The article deals with certain controversies revealed in a franchise business caused by the absence of legal regulations at the pre-contractual stage. It emphasizes the lack of a mechanism to protect franchisees’ rights- information disclosed in the Franchise Disclosure Document. It contains recommendations on how to solve existing problems.
As a result of observing different models of legal systems and regulations in the pre-contractual stage, it becomes necessary to integrate this new franchising system and pre-sale information disclosure into Georgian law.
On the one hand, this study suggests implementing legislation and franchising regulations by combating several legal problems.
On the other hand, the research accentuates the adopted model law on information disclosure, “UNIDRUA”, that will be a strongly recommended model contract for such a country as Georgia since it lacks a special law on franchising. The analysis based on this research can be applied by commercial organizations and entrepreneurs that run businesses in terms of franchising.
Keywords: Preliminary agreement, pre-contractual information, pre-contractial disclosure, franchise, franchisor
Introduction and Research Objective
1. The Meaning of Pre-contractual Stage in Franchise Business
1.1 Foreign doctrine about pre-contractual stage
Pre-contractual stage: This is an Essential period that involves contract preparation procedures. Despite long-term contract negotiations, the parties are most likely to sign the contract at a very early stage. It is the legal basis for administrative compulsion, including several principles that must be considered when making a franchise agreement.[1]
A franchise relationship is a kind of relationship between the franchisor and the franchisee and involves regulations and standards to define and protect the quality of the service or products to be provided. The franchisee’s business is one which they are licensed to carry out in accordance with the terms of their contract with the franchisor.[2] The franchise agreement is the basis of the relationship between the franchisor and the franchisee in all franchises. The relationship between franchisors and franchisees has often been termed a “commercial marriage”. In many ways, this is true, though the difference is that in the franchise relationship, there must, by definition, be a “senior partner” - the franchisor. Also, the franchise agreement defines the entire basis of the relationship upfront so that both parties know their rights and obligations to the relationship[3].
A franchise agreement: This is an agreement between a franchisor (exclusive rights-holder) and a franchisee that sets out certain rights and obligations for franchisees to purchase a franchise within restricted franchise territory in accordance with those terms and submission period dates that are defined in the contract.
The complex of exclusive rights (licensed complex)- Intellectual property rights of all objects (trade mark, trade name, service marks, patents, covered (obscure) information, production secrets (know-how); Goodwill.[4]
Doctrinal studies assess pre-contractual agreement as a traditional version aroused due to agreement responsibilities. We all know the very postulate: The general rule is that signing the agreement’s appropriate form isn’t preceded by establishing mutual intercourse between the parties. What’s more, preparation for pre-contractual agreement gives resistance to the dichotomy (reciprocity) approach of civil legal liability that is attributed to Roman law.[5]
If we analyze foreign Doctrinal research, we may come to the following conclusion that the Continental-European, as well as the Anglo-American legal system, tends to impose several restrictions and duties on both parties to protect The obligation of faithful business and in case of violation of requirements and misconduct the side that has inflicted some kind of wrong upon another party or has brought some kind of harm to his personal property is to make reimbursement for the loss of income.[6]
Pre-contractual liability of franchising is likely to be a special element when providing pre-sale disclosures.
It is very interesting if we realize the meaning of the pre-contractual stage in the franchise business. What is the core (essence) of business formation? One side that is right holder is maybe a professional entrepreneur (commercial organization), A contrario franchisee (beneficiary) who isn’t unlikely to possess the necessary business experience and some kind of professional level, which compels him to compensate for this disability by making a franchising agreement. Each side aims at making a maximum profit because of the actual inequality of those two entering a franchise business; the one who is always strong and more omnipotent and experienced is a franchisor, and the weaker side is mostly a franchisee rather than a right-holder. That’s why regulating franchise businesses necessitates solving the problem of creating legal guarantees to protect a franchisee.
Actual inequality of the parties entering a franchise business might occur in the early pre-contractual stage. In fact, in this stage, two negative factors are juxtaposed. First, as it has already been mentioned, this is insufficient job experience for a franchisee (beneficiary), and this is a plus for the franchisor as he/she possesses a preferable position. Second, the authoritative factor in this respect is that there is no clearly modified legal regulation in the pre-contractual stage.[7] So fighting the legislative vacuum is likely to be critical in the early pre-contract stage that’s why it is significant to form special regulation to avoid insolence and violation of franchisee’s rights and the diversion from the equality principles of civil legal relations.
For instance, if we analyze the hypothetic model for a franchise business, according to civil law, a franchisee (beneficiary) is to make up his mind whether to trust and accept insufficient and obscure information about a franchisor’s job performance (know-how) his entrepreneurial activities and take notice of those data that a franchisor deems necessary, desirable or scratch the surface and get things intuitively what is the business perspective before signing a contract.[8] Can a franchisee make a motivated and argumentative decision over franchise agreement in such a legal vacuum? Is it legal to allow a franchisor decide the extent of information disclosure and provision in the early pre-contractual stage?
The negative answer is irrevocable, which can be explained in the following way: It’s foremost to work out an efficient and effective legal mechanism in the early pre-contractual stage to provide equal conditions for the parties entering a franchise business.
Common law system, as well as continental, signals what is the key instrument of the legal mechanism to protect the interests of a franchisee (beneficiary), and this major principle is the provision of pre-sale disclosure that is activated in the initial stage of business formation.[9]
If we define schematic processing, this principle lies in the fact that a franchisor (right-holder) is under obligation to give and represent essential information to a potential franchisee (beneficiary) before the contract is drawn up.
Before we get to the conclusion and put forward the answer to the question of whether our legal system needs a new legal institution, pre-sale information disclosure and transferring in the early pre-contractual stage, it’s very important to be aware of its legal nature, because such research will help us understand how our legal system organically absorbs this foreign construction.
1.2. Problems at the pre-contractual stage and a special law on information disclosure
A franchise business’s pre-contractual stage is usually regulated by a special information disclosure law, which imperatively addresses a franchisor’s obligation, i.e., requirements to provide a franchisee with equivalent objective information earlier than signing a contract. This kind of obligation seems natural; a potential franchisee (This is a legal action in accordance with its legal nature) remains connected to another part using a set of rights and obligations before forming contractual relationships, and this makes us familiarize ourselves with the special pre-agreement statement within the framework of legal relations which involves unilateral commitment, a franchisee’s right to be provided with information and requirement to make a franchisor meet all the liabilities concerning pre-sale franchise disclosure.
Thus, the distinctive features of the franchising contractual mechanism are a continual legal relationship, the franchisor’s right of control over the franchisee’s activities, and the franchisee’s commitment to follow the advice and directives of the franchisor. In case of not yielding to the range of requirements interconnected and mutually related contractual partners are to abide by any liability mechanism. (Legal systems in the case of several foreign countries involve intersectoral liability mechanisms that consist of private and public legal norms (France, Italy).
What’s the aim of franchising legal relationships? It imposes obligations upon franchisees as well as franchisors and affects pre-contractual conduct as well as the fundamental elements of the relationship. Pre-contractual relations and contract negotiations are made separately and provided the franchise agreement is drafted or terminated, it won’t have any bias upon these pre-contractual relations, i.e. it recognizes the need to activate liability mechanism imperatively in case of violation of rights and interrupting a franchisee from being provided by the pre-contractual duty of Information disclosure even though franchise contract is never signed.[10] Existence of pre-contractual legal relationships is defined by two factors: submission period of potential franchisor’s information liability terms and potential franchisee’s rights terms to have confidentially protected, detailed franchise information and resources and these terms are negotiated and endorsed mutually, and when the contract is overdue, or all the commitments are fulfilled, then it results in cancellation of pre-contractual negotiations.
2. Culpa-in-contrahendo Doctrine
It is very important to make first Pre-contractual liability of legal regulation reform (for example, in Germany, while focusing on obligations law reform, it recognized the need to expand the German Civil Code with a special norm & 311 (2) in 2002, that imposes both franchise business partners to act honestly when franchise negotiations are underway and second, we shouldn’t resist to the presumption that pre-sale information disclosure process follows doctrine of (culpa-in-contrahendo) pre-contractual relationship between the parties entering a franchise business. The main intention is to enable the principle of good faith in a contractual relationship of franchising.
It is necessary to analyze the franchisor’s (right holder) information obligation in detail. The legal obligation involves the representation of a franchise disclosure statement similar to the offer to a great extent. What’s the meaning of offer and its principles? Let’s compare it with the information disclosure statement:
The legal nature of the Offer lies in the fact that it shows the willingness of the partner to draft an agreement that conveys the intentions of the person who has already made a suggestion. Due to the proposal, he asserts that the agreement is made for the addressee, who accepted it. The Offer concerns the distinctive terms, conditions and issues of the agreement.[11] It can be concluded that the Offer is quite clarified and modified to express the Offerant’s wish. In case of acceptance, sign the following document. If we get to the bottom of the franchise disclosure statement and analyze its essence, we will realize that the Offer, as well as the franchise disclosure statement, share the same characteristic feature: “comprehensibility (clearance)”. Moreover, a special law on franchising urges a franchisor to provide a franchisee with an information disclosure statement alongside all the detailed and exhausted sources of information involving substantial terms and conditions.
There is no doubt that when a potential franchisor provides a franchisee with an information disclosure statement, by doing this, he expresses his willingness to form a franchise relationship and sign a franchise contract; what’s more, any pre-contractual legal regulation model for franchise business contains franchise disclosure statement, and its content consists of the very text of the agreement and Offer doctrinal definition is similar to commentary made in Criminal Code - the article 329. “Offer is a proposal to Offer an Agreement, show one-sided willingness and meet expectations of accepting this agreement from the other side, and postulates legal regulation results for both sides standing for a franchise business, i.e. involving Offerer and addressee “(Acceptant)”.[12] Offer has a broad meaning, and its identifying features are doctrinally interpreted: The First feature is clearance of Offer, and due to it, the addressee should clearly define the Offerer’s willingness. Second- Offer directives that assert acceptance of suggestions, terms and conditions from the addressee for successful business plan implementation. Third, it’s the content of the Offer- it must contain substantial terms and conditions of the contract. The fourth element is addressee - It should be obvious to whom the offer is addressed.
2.1. Disclosing pre-sale information - a distinctive principle
Considering prominent elements and factors while concentrating on information disclosure, we may conclude that the Offer is mostly characterized by clearance, directiveness and content. As for the addressee, the Information disclosure document is always directed toward the potential franchisee.
Therefore, the information disclosure document is characterized by every trait of “Classic Offer’s” shares; therefore, its content is regulated in every pre-contractual legal regulation model by the special law on franchising. (The imperative norms determine the content of Offer That’s why it enables us to conclude that the information disclosure document has the same nature as Offer but is “special Offer with imperative steps”.
Thus, disclosing pre-sale information on the pre-contractual stage of franchising is the distinctive principle. It is associated with the classical contract-signing concept involving minor analysis toward the offer content. This enables us to give a positive answer to the question that there is no need to copy construction law research methods; moreover, in this particular case, drastic reforms in existing legislation are unnecessary.
2.2. Pre-contractual liability in European legal family
The pre-contractual liability institute was originally founded in the German legal system and then interpreted by the meaning of French jurisdictional terms. Nowadays, it is depicted and enacted in many normative acts of those countries that attribute to continental European legal family (Videlicet in Italy, France, Spain, and Switzerland).[13] Notwithstanding the differences in the contents of the pre-contractual liability mechanism, in the case of different national legal systems, it is notable that the main principle of pre-contractual liability remains a civil-legal liability, implying opportunities to violate and terminate contract terms and remunerate the damages caused by unlawful acts.
Alongside it, existing pre-contractual liability in concrete separate national systems isn’t limited to civil legal liability only, but also it foresees for minor violations administrative liability and for serious violations – criminal liability (for example, in France, Italy, and Spain). Regulating pre-contractual stage in franchising is guaranteed neither by the Civil Code nor any legislative act in Georgia. So, it should be considered that the Georgian model for legal regulations should be established at the pre-contractual stage with the main objective of enacting and legalizing intersectional liability mechanisms to avoid unlawful acts. That kind of regulation model would involve public and private legal forms.
When we talk about the pre-contractual stage and preparation of the franchise disclosure document, we shouldn’t forget the existence of the model franchise disclosure law officially adopted by the UNIDROIT Study Group on franchising on 25 September 2002. According to the franchise agreement, preparing a model franchise disclosure law started in 1985 when the Governing Council of UNIDROIT worked on the UNIDROIT Conventions[14] on International Leasing and International Factoring.
The first and foremost factor in model law is regulating franchise relationships by providing pre-sale information disclosure in the pre-contractual stage. Model law, of course, is short and consists of a single preamble and ten chapters. As for the preamble, it depicts and forwards the significant role franchising plays in many high-ranked countries, for example, but the chapters concern information disclosure and provision elements that must be taken into account before drawing up an agreement.
Information vacuum challenges compass unavailability and disclosure of information concerning the parent company and beneficiary’s company. (i.e. information on both parties entering the franchise business). This specific feature in business formation is characterized as transparency and disclosure that restricts franchise efficiency and effectiveness. This means that some of the elements of a system cannot be seen but can nevertheless affect the system’s operation. Many challenges in franchise systems can be avoided if franchisors and franchisees have more open and frequent communication, mutual respect and transparency. That is why information disclosure concerning franchise business entities seems to be of most requireable principles at the pre-contractual stage according to franchising legislation in certain countries such as The USA, France, Germany, Australia, Belgium, Brazil, Indonesia, Spain, Canada, etc. Violating certain aspects of franchise agreement obligations is sanctioned even by criminal liability. Unfortunately, no chapter in the Civil Code will regulate franchise business in the pre-contractual stage.
To overcome a series of challenges, the franchise industry necessitates law enforcement and representation of (“Law on Franchising”, law on “Changes and Amendments to the seventh chapter in Civil Code”), parties entering franchise business are bound to abide by the law to disclose any special information at the pre-contractual stage. Developed countries, through special disclosure obligations put onto a franchisor, ease franchisee destiny by formulating its inner will to conclude a franchise agreement. Having received disclosure information, the franchisee fully understands the meaning of its actions directed to franchise agreement execution. Thus, in such a situation, we may conclude that the foreign franchisee’s expression of will corresponds to its inner will.
If information disclosure obligations are terminated or violated, then we may face several challenges even in developed countries: e.g. The existence of a large number of franchisors who lack successful technologies, The existence of those franchise companies that work only on gathering royalties and give nothing in exchange for this payment (Franchise royalty is a sum paid to the franchisor. It typically is the percentage of sales (usually the gross) that the franchisees pay to the franchisors). The existence of subsidiary companies, i.e., franchisee companies, seeks the way and resort to certain measures to face business challenges by drafting a franchise contract. The agreement gives both parties a clear understanding of the basis on which they will continue to operate.
Results and Conclusion
There is no doubt that when a potential franchisor provides a franchisee with an information disclosure statement, he expresses his willingness to form a franchise relationship and sign a franchise contract. In addition, any pre-contractual legal regulation model for business consists of a franchise disclosure statement, and its content involves the agreement’s text and the offer doctrinal definition, similar to commentary made in Civil Code Georgia.
Considering prominent elements and factors while concentrating on information disclosure, we may conclude that the offer is mostly characterized by ineligible clearance, directiveness and content. As for the addressee, the Information Disclosure document is always directed towards the potential franchisee.[15]
Therefore, every trait of “Classic Offer” shares characterises the information disclosure document. Therefore, its content is regulated in every pre-contractual legal regulation model by the special law on Franchising (The content of the offer is determined by the imperative norms). As a result, this enables us to conclude that the Information Disclosure document has the same nature as the “Proper Offer”; however, this is
კერძო მედიაცია, როგორც საჯარო მიზნების განხორციელების საშუალება
No full textThe development and strengthening of private mediation significantly determine the possibilities of overcoming the challenges in the process of the institutionalization of mediation. Establishes an effective system of dispute resolution at the state level. The legal or practical regulation of the abovementioned should be considered a prerequisite for implementing the interests of the subjects of law and forming legal awareness.
In addition, the perfect functioning of the justice system, which should ensure the implementation of the legal interests of the subjects of law, is an expression of public and private interests. The well-being and satisfaction of the civil turnover participants are significantly determined by the existence of flexible dispute resolution systems and mechanisms, the correct implementation of which creates guarantees for the stability of civil turnover. In addition, it’s in the public interest that the chain of the means of dispute resolution should be flexible and diverse and allow the interested parties to choose an acceptable method in each case. Regardless of its importance, providing fast and affordable forms of dispute resolution remains a challenge. In addition, it’s important to strengthen cooperation between the public and private sectors in this process, which will be considered an innovation in Georgia. Accordingly, following legislative changes, it is important to raise public awareness, improve legal culture, and strengthen the court’s role in implementing state policy regarding dispute resolution.
Keywords: dispute, resolution, advantage.
Introduction
Conflicts in societies are inevitable. In individual cases, the conflict can manifest itself in different forms: it can mean an interstate war and a family or work dispute.[1] Circumstances arising within the interrelationship may lead to the impossibility of independently resolving the dispute. Thus, flexible and many-sided legal mechanisms for resolving disputes throughout the state significantly determine the stability of civil turnover. In addition, it should be considered a prerequisite for realising the interests of the subjects of law. Mediation is considered important in this direction, as it occupies a prominent place in the justice chain and manifests in different forms. However, in any case, the fundamental ethical principles of mediation are essential for understanding the purpose of any form of mediation, and these principles also directly determine the procedural side or content of any form of mediation.
Accordingly, the issues related to the institution of mediation in Georgia are discussed within the paper’s framework. In particular, for the purposes of the paper, attention will be paid to one of its forms - private mediation, because the institutionalization of judicial mediation is currently more active. After the fundamental legislative changes, a number of judicial mediation programs have been implemented that can not be said about private mediation. However, it is a fact that the degree of success of the functioning of private mediation significantly shapes public opinion towards the institution of the mediation in total. The subject is also actual, as the positive role of mediation, which also includes the implementation of the fundamental principles of mediation, is visible in the case of private mediation, and a number of states, it is private mediation that is considered to be the most acceptable form in the process of solving various categories of disputes.
Therefore, the development and strengthening of private mediation in Georgia is considered inevitable, and in this process, the court’s role should be considered important. So, judicial mediation should ensure the strengthening process of private mediation, its establishment in the legal culture and establishment in the society, as well as the presence of the mediation component in the judicial system - strengthens the court. As a methodological basis of the paper, general scientific-historical and, special-normative and comparative legal research methods are used.
1. Mediation as a Means of Dispute Resolution and its Possible Forms
John F. Kennedy mentioned, “Let us never negotiate out of fear. But let us never fear to negotiate.[2] Human history shows that conflicts between people are inevitable. Therefore, one of the purposes of the legislation is to neutralize them to ensure public order and peace.[3] Mediation probably originated 4000 years ago - from the Sumerian society. However, it continues to evolve as a means of dispute resolution, and it is necessary to offer ways to ensure its perfection process.[4] Mediation has been regarded as the preferred method of conflict resolution in China for thousands of years. In the United States of America, society concluded that court proceedings could not fully satisfy the interests of the subjects of law, and mediation was recognized as the best form of dispute resolution. Consequently, in recent decades, mediation has been introduced in schools, the judicial system, government institutions, and the business/private sector.[5]
What is mediation? Mediation is defined as a process in which a neutral third party facilitates communication between the disputing parties in order to reach a mutually acceptable resolution of the dispute.[6] According to another definition, mediation is a voluntary process in which, with the involvement of a neutral third party, the parties try to find ways to resolve the conflict and achieve satisfactory results.[7] According to a recent definition by the Center for Dispute Resolution in the UK, mediation is a flexible process, conducted confidentially, in which a neutral person acts as a mediator to help the parties reach an agreement within their dispute, where the parties have authority to determine the content and terms of the agreement.[8] In any case, the recognized definitions of mediation as an institution, are based on emphasizing its fundamental principles as an institution, the prohibition of third-party interference in the rights of the parties, and the principle of self-determination of the parties as the nature of the mediation itself is based on the substantive and procedural goal of self-determination and the free will of the parties.
The mediator does not influence the results of the mediation. The mediator looks for ways to bring the parties closer to each other and the problem.[9] Therefore, the transformation of relations should be evaluated as a kind of goal of mediation.[10] It is recognized that mediation affects public relations like a drop of liquid in a glass of water. It slowly and imperceptibly changes the entire environment. By teaching mediation to young people and legal entities, by offering transformative alternatives of dispute resolution, and by introducing non-violent methods, the existing environment is being changed.[11] Even recent scientific studies indicate that one person’s positive attitude and aspirations can change the physical environment, emotions, and even the energy of those around them. Therefore, the mediator’s thoughts, mind state and emotions have a direct influence on the results obtained.[12] One of the characteristics of mediation is that with its help it becomes possible to resolve disputes in the area of a particular society/institution. For example, mediation centres are established in schools or other types of institutions, in which case mediators work voluntarily, or the municipality finances their remuneration.[13]
As for the possible forms of mediation, which can be considered as the type of services to be provided to citizens, according to the established approaches in international legal spaces, the following dominate: court and private mediation, also referred to as voluntary mediation. In addition, court mediation is of two types: 1. Court-annexed mediation,[14] which is institutionally coordinated with the court, however, procedurally, it is independent of the court as an independent institution;[15] 2. Judicial mediation[16] is related to the court regarding building and staff. In case of this kind of mediation, the process may be conducted by a judge.[17]
Currently, a number of programs in Georgia have been developed with the purpose of developing the form of mediation - court-annexed mediation, that cannot be said about private mediation. However, as Albert Einstein said, it is possible to see an opportunity in any difficulty.”[18]
Accordingly, following the legislative regulation of mediation and the implementation of court mediation programs, support for the development of private mediation is necessary for the development of mediation practice. The development of private mediation indicates the formation of mediation as a profession. In addition, since completing the unified justice chain is a public goal, it is necessary to introduce forms of cooperation between the court and the private sector - for example, such would be the implementation of joint programs. In this way, cooperation with the court will strengthen private mediation - just as the institution of mediation strengthens the court.
In addition, private mediation has a special role in different aspects. For example, for the representatives of the business sector, the advantages are of special importance: the ability to control the result; the possibility of controlling procedural issues; the possibility of determining the participating parties; saving financial resources; the ability to save on expert costs; time-saving; ability to maintain full privacy.[19] All of these advantages are also visible in the case of private mediation.
It should also be noted that the support for developing private mediation does not imply recognition of its superiority over other means of dispute resolution. Private mediation should be understood as one of the means of dispute resolution available in the state, which also has the support of the public sector, and the subjects of the law should have the opportunity to determine, in terms of free choice, the form of dispute resolution that is more acceptable for them.
Indeed - private mediation is not always the solution - for example, in cases where the parties are limited in terms of budget, it is less desirable to use private mediation. In these conditions, it is more reasonable, for example, to apply for court-annexed mediation.[20]
2. Cooperation between the Court and Private Mediation Providers as a Prerequisite for the Development of Mediation
It is recognized that PPP: Public-Private Partnership is one of the most flexible forms of implementation of public tasks. Its general definition implies the inclusion of private finance in the implementation of public tasks. In this model, the pairs of “public and private” entities imply cooperation.[21] Accordingly, taking into account the fact of the importance of the development of private mediation throughout the state, the question arises whether it would be appropriate to develop projects/such as mediation programs, on the basis of which the development of private mediation would be promoted on the basis of mutual cooperation between the judicial and private sectors, which would ultimately serve the common interests of both sectors.
Cooperation in this direction will be especially significant in building public trust and raising awareness towards private mediation. In this direction, examples of relevant successful practices should be considered: for example, in 1992, the Alberta Better Business Bureau established an independent, private legal entity, which gained a reputation as a Dispute Settlement Centre (BBB). The Center works with the Alberta Provincial Court and offers free alternative dispute resolution to disputing parties. The court proceedings are terminated if the parties agree to mediation, and it ends successfully. In case of impossibility of resolving the dispute, a standard consideration of the case within the framework of civil proceedings is being continued.[22]
It has also to be mentioned that in 1987, a Florida court initiated a program in which the court referred disputes to private mediators paid by the parties themselves. As a result of the implementation of the program, the number of cases to be discussed by the courts was reduced, access to the court was improved, and the degree of satisfaction of the parties was significantly higher than in the case of court proceedings.[23]
The indicated experience unequivocally confirms the effective practice of cooperation between the courts and legal entities of the private sector. This can be described as a hybrid form of court and private forms of mediation, which ensures the strengthening of the role of the court in the process of institutionalizing mediation, as well as the promotion of private mediation, the establishment of a culture of peaceful dispute resolution, and the transformation of the court into a space that offers citizens a variety of dispute resolution mechanisms.[24]
Conclusion
As a result of the discussion carried out within the framework of the work, it is determined that following the process of institutionalization of mediation, its regulation at the legislative level and the implementation of one of its forms - court programs in Georgia, it is considered relevant to take concrete steps for the development of private mediation. Improving practice in the relevant direction. Obviously, the mentioned process should not be carried out by automatically recognizing the experience of any state, and each innovation should be introduced based on a cause-and-effect analysis. It is considered necessary to involve the judicial system in developing a judicial form of mediation and private mediation. For this purpose, establishing and implementing projects should occur based on the principle of mutual cooperation between the public and private sectors. The above conditions, which consider strengthening the role of private mediation, complete the unified chain of dispute resolution operating throughout the state. In a broader sense, this means ensuring the Georgian reality and its compliance with the standards of leading democratic values-oriented legal systems - each subject should have the opportunity to decide as a result of a multifaceted and complete assessment of the issue under the conditions of free will - Within the discussion of a specific issue, which means of dispute resolution would be most suitable. The legal awareness of the subjects of the law should be based on the principle that the court proceedings should be considered not the main but one of the means of resolving the dispute. The abovementioned, which means a kind of cooperation between the public and private sectors, will contribute to the implementation of both public and private interests. On the one hand, the judicial system will be relieved; On the other hand, it will promote the development of private mediation. At the same time, an opportunity will be created to quickly and effectively satisfy the real interests of the subjects of the law.
In this way, as a result, two kinds of effects will be revealed. After all, mediation, in its essence, changes the court and determines the possibilities of overcoming a number of challenges in the judicial system. In addition, according to the recommendation, the judicial system will ensure the development of the forms of mediation in Georgia.
Bibliography
Legal acts:
The Civil Procedure Code of Georgia <https://www.matsne.gov.ge> (In Georgian)
Law on Georgia on Mediation <https://www.matsne.gov.ge> (In Georgian)
Literature:
Gurieli, (2019). The scope of the judge’s authority in relation to the conduct of the court mediation process. Tbilisi.
Khandashvili, I. (2018). Judicial and non-judicial forms of alternative dispute resolution on the example of mediation in Georgia. Ivane Javakhishvili Tbilisi State University Faculty of Law, Tbilisi.
Khubua, G., Kalichava, K. (2018). Handbook of administrative science. Tbilisi.
Brunet, E. (2002). Judicial mediation and signaling. Nevada law journal.
Clarke, S., Gordon, H., Ellen, E. (1997). Public Sponsorship of Private Settling: Court-Ordered Civil Case Mediation. Justice System Journal.
De Vries, T. (2012). The Legal Regulation of Mediation in Germany. Part I: Studies: Section 2: Private Judicial Law. Acta Universitatis Lucian Blaga.
Fisher, J. (2000). Symbol in mediation. Mediation Quarterly.
Gold, N. (1997). Prospects, Problem and Potential: An Assessment of Trends and Issues regarding Mediation in Canada. Journal of Arbitration Studies.
Hyde, L. M. Jr. (1984). Mediation. Juvenile & Family Court Journal.
Hesser, D., Craig, C., Jarrell, E. (2007). Team Mediation: An Interdisciplinary Model Balancing Mediation in the Matrix. Pepperdine Dispute Resolution Law Journal.
Khouri, N. (2021). Mediation. New Zealand Law Review.
Kovach, K. (2003). Mediation in a nutshell. Printed in the United States of America.
Lindblom, P. H. (2017). Progressive Procedure. Iustus.
Lovenheim, P., Guerin, L. (2004). Mediate, don’t litigate. Printed in the USA.
Maas, F. (2017). A Magistrate Judge’s Plunge into the World of Private Mediation. Litigation Journal.
Mosten, F. (2004). Institutionalization of mediation. Family Court Review.
Noll, D. E. (2007). Mediation. Then Mediation Deeper Dimensions Dispute Resolution Magazine.
Ozturk, N. (2015). Banka ve Ticaret Hukuku Dergisi.
Picard, Cheryl, A., Melchin, K. R. (2007). Insight Mediation: A Learning-Centered Mediation Model In Practice. Negotiation Journal.
Prabakar, R., Kripa, Somi J. (2022). Mediation in Family Dispute. Indian Journal of Law and Legal Research.
Richler, J. (2011). Court-Based Mediation in Canada. Judges’ Journal.
Riskin, L. L. (1997). Mediation Quandries. Florida State University Law Review.
Sudini, L. (2016). Mediation in the Settlement of Business Disputes in Indonesia. Journal of Law, Policy and Globalization.
Steffek, F. (2012). Mediation. In The Max Planck Encyclopedia of European Private Law, Vol. II, Basedow, J., Hopt, J. K., Zimmermann, R., Stier, A. Oxford University Press, Oxford.
Steffek, F. (2013). Mediation und Gűterichterverfahren. Zeitschrift fűr Europäisches Privatrecht, (ZEuP) #3. Verlag C. H. Beck, Műnchen.
Footnotes
[1] Kovach, K. (2003). Mediation in a nutshell, Printed in the United States of America, p. 3.
[2] Ozturk, N. (2015). Banka ve Ticaret Hukuku Dergisi, p. 203.
[3] Sudini, L. (2016). Mediation in the Settlement of Business Disputes in Indonesia. Journal of Law, Policy and Globalization, p. 41.
[4] Hesser, D., Craig C., Jarrell E. (2007). Team Mediation: An Interdisciplinary Model Balancing Mediation in the Matrix. Pepperdine Dispute Resolution Law Journal, p. 113.
[5] Mosten, F. (2004). Institutionalization of mediation. Family Court Review, p. 292.
[6] Richler, J. (2011). Court-Based Mediation in Canada. Judges’ Journal, p. 14.
[7] Hyde L. M. Jr. (1984). Mediation. Juvenile & Family Court Journal, p. 57.
[8] Khouri, N. (2021). Mediation. New Zealand Law Review, p. 170.
[9] Picard, C. A., Melchin, K. R. (2007). Insight Mediation: A Learning-Centered Mediation Model In Practice. Negotiation Journal, p. 35.
[10] Riskin, L. L. (1997). Mediation Quandries. Florida State University Law Review, p. 1007.
[11] Fisher, J. (2000). Symbol in mediation. Mediation Quarterly, p. 87.
[12] Noll, D. E. (2007). Mediation. Then Mediation Deeper Dimensions Dispute Resolution Magazine, p. 37.
[13] De Vries, T. (2012). The Legal Regulation of Mediation in Germany. Part I: Studies: Section 2: Private Judicial Law. Acta Universitatis Lucian Blaga, p. 209.
[14] Steffek, F. (2012). Mediation. In The Max Planck Encyclopedia of European Private Law, Vol. II, Basedow, J., Hopt, J. K., Zimmermann, R., Stier, A. Oxford University Press, Oxford, p. 163.
[15] Lindblom, P. H. (2017). Progressive Procedure. Iustus, p. 422.
[16] Brunet, E. (2002). Judicial mediation and signaling. Nevada law journal, p. 232.
[17] Steffek, F. (2013). Mediation und Gűterichterverfahren. Zeitschrift fűr Europäisches Privatrecht, (ZEuP) #3. Verlag C. H. Beck, Műnchen, 538. Mentioned in: Khandashvili, I. (2018). Judicial and non-judicial forms of alternative dispute resolution on the example of mediation in Georgia. Ivane Javakhishvili Tbilisi State University Faculty of Law, p. 184.
[18] Prabakar, R., Kripa S. J. (2022). Mediation in Family Dispute. Indian Journal of Law and Legal Research, p.1.
[19] Lovenheim, P., Guerin, L. (2004). Mediate, don’t litigate. Printed in the USA, pp. 300-301.
[20] Maas, F. (2017). A Magistrate Judge’s Plunge into the World of Private Mediation. Litigation Journal, p. 42.
[21] Khubua, G., Kalichava, K. (2018). Handbook of administrative science. Tbilisi, p. 161.
[22] Gold, N. (1997). Prospects, Problem and Potential: An Assessment of Trends and Issues regarding Mediation in Canada. Journal of Arbitration Studies, p. 94.
[23] Clarke, S., Gordon, H., Ellen, E. (1997). Public Sponsorship of Private Settling: Court-Ordered Civil Case Mediation. Justice System Journal, pp. 326-327.
[24] Gurieli, A. (2019). The scope of the judge’s authority in relation to the conduct of the court mediation process. Tbilisi, p. 126.
The Forms of Acceleration of Justice
Full text linkPlea bargaining is one of the most important institutions of criminal law not only in Georgia but also in other countries. The said procedural institution was also introduced into the Georgian system and has not lost its relevance since its introduction. It is also obvious that this procedural-legal institution is the cornerstone of Anglo-American law, and it is impossible to discuss it outside the context of the said legal system.
Our research includes an in-depth study of the plea bargaining as a basic legal institution. In particular, the formation and development of plea bargaining in England and America is presented. Among them, the case law in the part of plea bargaining is discussed. The article presents the process of implementing plea bargaining in the countries of continental Europe. The work contains a comparative legal analysis of different countries and the Georgian system.
Historically, there are two types of bargaining: explicit and implied. Explicit plea bargaining is an open offer from a judge to a victim during a trial or a judge’s advice to a defense attorney about the “best reasonable solution”.
The rules of expedited justice in the countries of the continental European system (Germany, France, Italy) are characterized by certain features, the features of which are discussed in this article.
The study reveals the main essence of plea bargaining in Georgia, the practice of its use, and the main problems. The author’s conclusions and recommendations are presented at the end of the study.
Keywords: Plea bargaining, justice, court, evaluation of the evidence.
Introduction
The strategic direction of accelerated justice, which originated from the Anglo-Saxon model of law, is highly relevant today for the procedural laws of Georgian and foreign countries.
Long before on September 17, 1987, the Committee of Ministers of the Council of Europe specially adopted the recommendation, which offered its member states to introduce simplified forms of proceedings and to introduce accelerated forms of resolution of “criminal law disputes”.[1]
In the countries of the continental European legal system, where the proceedings were very long in time,[2] they began to perfect the existing models and simplify traditional mechanisms; many procedural regulations were introduced that accelerated the time of litigation and simplified procedural actions, which is why today in various forms of procedural legislation, these requirements are implemented and function successfully in most European countries (Belgium, Italy, France, Greece, etc.). This idea is based on the principles of competition, equality and constant control of the investigative stage by judicial authorities.
Article 8 of the Criminal Procedure Code of Georgia, as a principle, guarantees a fair process and provision of accelerated justice, where it is indicated that the accused has the right to speedy justice within the time limits established by the Procedural Code. A person has the right to refuse this right if necessary for the proper defence preparation. The court must prioritise the criminal case in which imprisonment is used as a preventive measure against the accused.
Before we talk directly about the Georgian model of accelerated justice and its problems, it is probably better to first consider the features that characterize the procedural laws of Anglo-Saxon and continental European countries in the implementation of speedy justice.
1. A Formal Plea or Deal
This plea is a statement by one party in a criminal proceeding to admit the fact on which the other party bases its claim or counter-opinion; it relieves the other party from further necessary substantiation of the mentioned fact, which in this case is deemed to be proved.[3] There are several types of formal guilty pleas. Historically, plea bargaining originated in the United States. Currently, up to 90% of criminal cases are considered in this way.[4] In the American legal literature, we can find the following definition of a plea bargain: it is a case where the accused pleads guilty (plea guilty) in exchange for a less severe sentence (plea guilty) or exchange for other interests. A deal is made between the accused and the prosecutor. Rule 11(c)(1) of the Federal Rules of Criminal Procedure states that a judge is prohibited from participating in a plea bargain.[5] The US Supreme Court held in the Missouri[6] and Laffer[7] cases that a defendant has a constitutional right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution when entering into a plea bargain. It should be noted that the prosecutor has the right to use threats to force the accused to make a deal, but this influence should be related only to the qualification of the crime and the amount of the punishment. This provision was confirmed in the Bordenkircher[8] case. But if there are no reasons to impose a more strict sentence, and the prosecutor still uses threats, this is a violation.
In the case of Santobello,[9] the Supreme Court ascertained that if the accused agrees to a deal with the prosecutor in exchange for a recommendation but then the prosecutor does not fulfill this promise, another prosecutor is appointed with whom the agreement was not signed, then, in this case, the procedural rights of the accused are violated. But if the court disagrees with the prosecutor regarding the amount of the sentence and imposes a heavier sentence than what was specified in the deal, then the accused cannot claim a violation of the constitutional right. Many US states have instituted plea bargaining (plea guilty) to achieve this goal. The accused has the right to initiate an agreement with the prosecutor before the sentencing if there are valid reasons for doing so.
The court is authorized to share a plea bargain and include this provision in the final decision. The judge may also refuse to accept such a deal if the evidence in the criminal case does not point to the defendant’s guilt. The parties will be notified of the court’s decision at the court session. Thus, the court does not automatically recognize the plea agreement but analyzes the evidence received from the parties in the criminal case.
In Great Britain, the institution of plea bargaining appeared much later than in the United States. Long before 1970, the Court of Appeal expressed a negative position regarding the institution of plea bargaining, stating that this practice is unacceptable in criminal proceedings. However, the lower courts did not hold the Court of Appeal’s instructions and continued the bargaining practice. The High Judiciary had no choice but to adopt the established practice of using this institution.[10] The emergence of established plea agreements, Contrary to the direct instructions of the superior courts in the case law country, suggests that the criterion of efficiency has prevailed over the tradition of judicial resolution of criminal cases on the merits.
Historically, there are two types of bargains: expressed and implied.[11] An expressed bargain (later prohibited in R v. Turner’s case[12]) is an open offer by the judge to the damaged person during the trial (R. v. Barnes[13]) or advice from the judge to the defense lawyer as to the “best reasonable solution” (R. v. Inns[14]).
An implied bargain can be of three forms. The first form - within the client-advocate relationship - the advocate, based on his procedural status, advises that alleviates the responsibility of the accused (R. v. Turner). The second form - within the judge-defense relationship - is based on the freedom of communication between the judge and the lawyer in the absence of the accused in the judge’s room, and this communication must be directed to the defense of the client. For example, the defendant has cancer, but he does not know about it; this circumstance may affect the decision made by the judge (R. v. Cain[15]). The third form is in the form of mitigation of punishment due to active repentance.
The prosecutor’s role gradually increases, and he decides whether to make a deal. This is because the Crown Prosecution Service was created in 1986, and the Criminal Justice Act gave the power to lay the final charge to the public prosecutor (previously, the police had the said right) in 2003. The difference between the American and English institutions of guilty pleas lies in the historical role of the prosecutor. To clarify the place of prosecutors in a new function for them - the parties to the plea agreement - the rule[16] of the procedure for confession of guilt was developed in 2009.
A plea bargain in English criminal law is a case between the prosecutor and the defense where the accused pleads guilty to the charge, in which case the prosecution does not proceed with the indication. There is another option of a deal, when the accused pleads guilty to a less serious crime (i.e. burglary is reclassified to theft, theft to handling stolen goods), this institution can be used in all categories of criminal cases.
The accused must initiate the plea bargain at any stage of the proceedings before entering the courtroom. R v. The Goodyear case established the rule that a maximum penalty[17] should be considered when agreeing to a sentence.
In continental Europe, plea bargaining was introduced much later, in the early 21st century. In France, the plea agreement (Comparution sur reconnaissance préalable de culpabilité) creates a way to avoid prosecution if a person admits to the charges brought against him (Section[18] 8 of the French Code of Criminal Procedure). As a rule, this procedure is carried out at the prosecutor’s initiative. The accused himself or his lawyer can also request a deal; the prosecutor can accept or reject the request. In addition, the investigating judge may request a plea bargain and forward the case to the prosecutor. The deal is made only with an adult defendant and is used only in the case of a misdemeanor (delict). In addition, the investigating judge may request a plea bargain and forward the case to the prosecutor. The deal is made only with an adult defendant and is used only for a misdemeanor (delict). Article 111-1 of the French Penal Code divides criminal acts into three categories: felonies (most serious, only intentional, punishable by imprisonment for more than ten years), misdemeanors (less serious, intentional or negligent, imprisonment for up to 10 years), violations (minor action, imprisonment is not imposed). However, not all crimes fall within the scope of plea bargaining. Exceptions are the following types of crimes: violence, threats of violence, aggressive sexual crimes and reckless body harm if they are punishable by imprisonment for more than five years; manslaughter; media activity related to crimes (insult, defamation); political crimes (terrorism, etc.).
If the prosecutor decides that a plea deal is the preferred option in the given case, then he calls the defendant. Mandatory participation of a lawyer during the conclusion of a transaction is established. The prosecutor offers the accused: 1) a fine, the amount of which cannot exceed the amount of the imposed fine; 2) Imprisonment, the term of which cannot exceed one year and half of the sentence served. The accused can accept the offer, refuse it or ask for additional time to think for a maximum of 10 days. In an open trial, the judge recognizes or rejects the bargain (ordonnance d’homologation). It should be noted that the judge cannot change or supplement the terms of the bargain.
The French Ministry of Justice notes that the purpose of the plea agreement is to free up the courts, significantly speed up the processing of cases and increase the effectiveness of the punishment because the accused confesses to the crime. The European Court of Human Rights recognized France as a violator of unjustified delays in the consideration of cases.[19] In addition, a deal can also be made by a legal entity through its representative (Article 706-43 of the French Criminal Procedure Code). In addition, it is emphasized that the use of coercive measures against the representative of a legal entity is prohibited, except for the summons for trying the case.
In Germany, the institution of plea bargaining (Abshprachen) was introduced in 2009 and provides for a reduced sentence or exemption from serving if the accused pleads guilty. According to Article 153 of the German Code of Criminal Procedure, the prosecutor’s office can drop the case at the preliminary investigation stage due to the minor nature of the action if the accused pays a fine. The deal is concluded at a court session with the participation of both parties.[20]
The bargaining process can be divided into three stages. The first is that the prosecutor offers a plea bargain that involves a reduced sentence in exchange for a guilty plea. The second stage is when the defense admits guilt or the crime committed by the accused. As a result, the prosecution is not required to prove the accused person’s guilt. The peculiarity of the German model lies in the fact that, before the plea bargaining, i.e. before the case is tried in court, the accused can familiarize himself with the materials of the criminal case and all the evidence.
When comparing plea agreement institutions in foreign countries, it is worth noting that procedural conditions share the following common features:
A deal is concluded between the defense and prosecution parties without the participation of a judge;
The terms of the deal usually contain a condition about the maximum term of the sentence, which the court’s judgment can later determine;
The participation of a lawyer during the conclusion of the plea bargain is mandatory. 2. Accelerated Deal
Accelerated (lat. celerantes – fast, the fastest) deal is a deal about simplifying justice procedures. If the American plea bargain is formally related to representations, the truth of the judicial decision, i.e. It is assumed that the admission of guilt by the accused is trustworthy, in the criminal proceedings of a number of European countries (Spain, Italy and others) from the 80s of the last century, they began to use a plea deal, the object of which was not only the guilt itself but also the formal consent of the accused to the indictment (conformidad - Articles 655, 589 of the Criminal Code of Spain) or “sentencing” (the so-called pattegament - Articles 444-448 of the Criminal Code of Italy, as amended in 1988). In both cases, the accused agrees to such deals to plead not guilty. In response to this action, the law provides for a lighter sentence (no more than six years in Spain) or a reduction of the specified term of the sentence (reduction of imprisonment by one-third in Italy). In addition, no judicial investigation is conducted. In practice, such a deal is perceived as an agreement between the parties to plead guilty, earning it the unofficial name “zero plea”.[21]
Article 40 (Part 10) of the Criminal Procedure Code of the Russian Federation also provides for the trial of the case using an accelerated bargain. In such a case, an agreement is made between the prosecutor, the victim, and the accused on the appointment of punishment for crimes of medium severity (which provides up to 10 years of imprisonment). No judicial investigation is conducted, and the court, with its verdict, confirms the sentence agreed upon by the parties in advance.
As we mentioned above, Article 8 of the Criminal Procedure Code of Georgia, as a principle, guarantees a fair process and provision of speedy justice, where it is indicated that the accused has the right to speedy justice within the time limits established by the Procedural Code. A person has the right to refuse this right if it is necessary for the proper preparation of the defense. The court is obliged to consider as a priority the criminal case in which imprisonment is used as a preventive measure against the accused.[22] Moreover, according to the procedural legislation of Georgia, the plea agreement is used in two directions: first, it helps to speed up the justice process, and second, it is one of the best ways to reveal the participants in organized crime because even in a special case, when the perpetrator of the crime is revealed as a result of the cooperation of the accused/sentenced person with the investigative authorities. The identity of an official and/or a person who commits a serious or particularly serious crime and his direct assistance creates essential conditions for solving this crime; such a person may be reduced in punishment and/or fully exempted from criminal liability or punishment.
3. The Georgian Model of Plea Bargain
It should be noted from the beginning that the plea agreement in force in Georgia is not a complete copy of the “plea bargain” in the USA. It was not directly copied from the procedural legislation of other countries of Europe or the former Soviet Union. In each state, the institution of the plea agreement has its characteristics, which, in many cases, quite distinguish it from the American one.[23]
The institution of the plea agreement in Georgia was introduced in the previously effective Criminal Procedure Code by the law of February 13, 2004. It has passed a certain historical path before taking place in the Georgian justice system with some important changes in the current Criminal Procedure Code.
Chapter 641 of the previous Criminal Procedure Code, where the plea agreement was stipulated since its adoption (February 13, 2004), including its effect, especially since March 2005, has undergone systematic and significant changes, reaching 27. The title of Chapter 641 of the previous Criminal Procedure Code has been changed. If it was called a “Plea Agreement” when it was accepted, it was later titled a “Plea Agreement and Full Release from Sentence”.
Moreover, in accordance with Article 151 of the Code of Criminal Procedure, the first part of Article 6791 of the same Code determined that the plea agreement is the basis for the judgment to be determined by the court without considering the merits of the case. In contrast to the previous (February 13, 2004) edition, the legislator did not consider mandatory the issue of the accused person’s cooperation with the prosecution, which is manifested in the confession of the crime and the provision to the investigative bodies of such trustworthy information or evidence or information about the crime committed by the official, which contributes to solving this crime. According to the first edition of the law, the consent of the accused to help and cooperate with the investigation was a necessary condition of the plea agreement. Cooperation with the investigation, as indicated in the legal literature, meant that the accused would provide the investigation with truthful information about a more serious crime or a crime committed by a higher-ranking official, or based on the confession of a less serious crime, a criminal prosecution would be carried out against the emperor who committed a more serious crime.[24]
In case of fulfillment of such conditions, the prosecutor had the right to request a reduction of the sentence for the accused or, in the case of a combination of crimes, to decide on reducing the charge to partial removal. But, a few months after the enactment of the law (Law of July 24, 2004), the procedural legislation underwent changes, from the first part of Article 6791 of the previous Code of Criminal Procedure, the obligation of the accused to confess and agree to cooperate with the investigation, to provide trustworthy information or evidence of a serious crime committed by a person, which would contribute to the opening of such a category of crime. In addition, the terms of the plea agreement were divided into two and were indicated as a “plea bargain” or “sentence agreement”.[25] In the case of a plea bargain, the confession of the crime by the accused was considered mandatory, while the requirement to cooperate with the investigation was maintained. As for the sentence agreement, at such time, the accused was not required to confess the crime, and cooperation with the investigation remained a mandatory requirement for the accused to agree on the punishment with the prosecutor.
In the previous criminal procedural legislation, in the last period (except for the revision of the law of March 25, 2005), a number of substantial changes were made in Chapter 641 of the Criminal Procedure Code. Article 151 of the previous Criminal Procedure Code indicated that the plea bargain was carried out in compliance with the principle of judicial independence, the purpose of the plea bargain is to provide quick and effective justice, and special chapter 641 of the same code provides for the plea agreement and the conditions and procedural rules for full exemption from punishment. In addition, if offering a plea bargain to the accused represented the prosecutor’s power with the amendments, the plea bargain could be offered to the accused (defendant) and the prosecutor during the substantive discussion of the case before the court argument. The court (judge) was authorized to offer the parties to conclude a written plea agreement within the framework of the procedural legislation.
It should be noted that on April 28, 2006, the amendments to Article 6791, Part 2 of the Criminal Procedure Code gave a different interpretation to the plea bargain when agreeing on the sentence because the non-confession in the part of the charge was completely removed and it is indicated that “while plea-bargaining, the accused (defendant) does not contradict the charges to the accusation, although he agrees with the prosecutor on the size of the punishment or complete release from it”. Thus, wheth
The Aftermath of Setting Aside an Arbitral Award in Rwanda: the Crossroads of Doctrines
Full text linkAbstract
In recent decades, commercial arbitration has undergone substantial evolution at both international and domestic levels. The growth is primarily driven by the increasing preference of multinational corporations for arbitration, governed by trusted international rules, over domestic litigation, which may be fraught with political and legal instability risks. The practice of arbitration is anchored in fundamental principles, notably the finality and non-appealability of arbitral awards. Nonetheless, the recognized possibility to set aside defective awards enhances trust and confidence in arbitration as a reliable dispute resolution mechanism. Jurisdictions tend to follow one of three prevailing doctrines when setting aside arbitral awards: the avoidance of a denial of justice, the prioritization of party autonomy, and the “silence” doctrine. Rwanda aligns with the latter. Over a decade, arbitration has grown rapidly in Rwanda, and courts have generally been supportive of arbitration, with only a few arbitral awards being set aside. A review of these cases reveals that Rwandan courts have yet to provide clear direction on the resolution of the principal dispute after an award is set aside, leaving the substantive conflict unresolved. The absence of legal provisions on this matter contributes to uncertainty for arbitration practitioners regarding post-annulment procedures. This paper examines the current situation with a look at other jurisdictions’ practices. It ultimately recommends Rwanda to adopt an approach that emphasizes party autonomy, with courts refraining from interfering in the original arbitration agreement, except in cases where the agreement is null, void, or incapable of performance.
Keywords: Arbitration, Set Aside, Rwanda, Aftermath, Arbitral Award
Introduction
In recent years, disputing business parties have increasingly turned to commercial arbitration as a preferred method of dispute resolution. International arbitration, in particular, is an ever-expanding field and a significant feature of modern commercial life.[1] Commercial entities often favor arbitration, governed by trusted international rules, over domestic litigation, which may be fraught with political and legal instability risks.[2] A survey reveals that 73% of multinational enterprises (MNEs) prefer arbitration over litigation, 95% include arbitration clauses in contracts, while 76% opt for institutional arbitration rather than ad hoc arbitration.[3]
The proliferation of arbitration centers, especially in developing countries, reflects the growing prominence of this form of dispute resolution. Unlike arbitration centers in developed countries, which have long-standing histories, many arbitration centers in developing nations are relatively new. For instance, the Kigali International Arbitration Centre (KIAC) was established in 2010 to become operational in 2012. Nevertheless, it has so far played a crucial role in advancing arbitration in Rwanda. To date, KIAC has administered hundreds of domestic and international cases alongside ad hoc arbitrations seated in Rwanda.
Arbitral awards are, in principle, final and not subject to appeal, consistent with the finality principle. According to this principle, courts are not permitted to substitute their judgment for that of the arbitrator or act as appellate bodies, except where the parties have expressly provided for that.[4] However, there are recognized exceptions under which an award may be set aside. This exceptionality is accepted across jurisdictions, with courts empowered to set aside awards that fall short of the minimum standards of fairness and due process.[5]
Rwanda adopted its first arbitration law in 2008,[6] and Article 47 of that law outlines the grounds for setting aside an award: invalidity of the arbitration agreement, improper notice of arbitrator appointment or defects in the tribunal’s formation, violations of the right to defense, ultra vires awards, non-arbitrability of the dispute’s subject matter, and awards contrary to public policy. Notably, this provision mirrors Article 34(2) of the UNCITRAL Model Law on International Commercial Arbitration.[7]
While Rwandan law provides specific grounds for setting aside arbitral awards, it remains silent on the procedures following the annulment of an award. This issue is critical because annulling an arbitral award nullifies the award but does not resolve the underlying dispute. An analysis of other jurisdictions’ practices reveals that approaches to this issue vary across jurisdictions, as scholars also remain divided on the topic.[8] Some jurisdictions base on the “will of the parties” doctrine to refer the dispute back to arbitration following the setting aside of an award, reflecting the parties’ intention to have the matter resolved by arbitration rather than ordinary courts. Conversely, in other jurisdictions, courts that set aside an award proceed to decide the case on its merits. Each approach has advantages and disadvantages, but these are beyond the scope of this paper, which seeks to address the gap in the Rwandan legal system.
The question of what happens after an arbitral award is set aside has nowadays gained particular relevance in Rwanda than ever. Over the past decade, arbitration in Rwanda has grown substantially, both institutionally and through ad hoc arbitrations. Of the cases seated in Rwanda and arbitrated either through KIAC or ad hoc proceedings, a significant number have been challenged in court, seeking to set aside the awards. Despite this, Rwandan courts have generally demonstrated a pro-arbitration stance, with only a few arbitral awards successfully annulled to date, and these are of recent. Examples include RCOMAA 00043/2019/CA (Court of Appeal, 06/12/2019), RCOM 00026/2021/HCC (Commercial High Court, 15/07/2022), RS/INJUST/RCOM 00018/2022/CA (Court of Appeal, 29/05/2023), and RCOM 00049/2021/HCC (Commercial High Court, 12/04/2024).
In these cases, the courts merely declared the awards unenforceable. It is still too early to regard these cases as establishing a binding precedent. Nevertheless, arbitration practitioners in Rwanda remain uncertain about the legal position following the annulment of an arbitral award. In the absence of clearly established legislation or a binding precedent, Rwanda must decide which approach to adopt: should the courts decide the merits of the case, or should they refer it back to arbitration? This paper aims to contribute to this discussion and influence policymakers and legislators on the appropriate path forward, underscoring its practical relevance.
To produce this paper, a qualitative methodology was used. Data were collected through desk research, employing a doctrinal approach. This approach involves a systematic examination of legal rules, an exploration of the relationships between these rules, and the identification of problems and potential future developments.[9] The choice of the doctrinal method was motivated by its dominance in legal research.[10] Primary sources, such as legal texts and judicial decisions, and secondary sources, such as scholarly literature, formed the basis of the data collection process.
This paper is divided into four sections. After the introduction, the first section explores three competing doctrines on the treatment of cases after the annulment of an arbitral award. The second section examines the practice of setting aside arbitral awards under Rwandan law. The third section recommends the approach that Rwanda should adopt, and the last section concludes the paper.
1. Three competing doctrines
The annulment of an arbitral award is a well-recognized legal practice across jurisdictions, including Rwanda, where Article 47 of Law No. 005/2008 of 14/02/2008 on Arbitration and Conciliation in Commercial Matters[11] provides for such a possibility. Similarly, various legal systems worldwide allow for the setting aside of arbitral awards. However, while this practice is generally accepted, the procedures and consequences following the annulment of an award differ significantly across jurisdictions. An investigation into jurisdictions’ practices reveals three distinct doctrinal approaches: (1) the court that sets aside the award proceeds to hearing the case on its merits, which this paper terms as responding to the “denial of justice doctrine”; (2) the court sets aside the award and refers the matter back to arbitration, consistent with the “will of the parties doctrine”; and (3) the court remains silent, leaving the next steps ambiguous, a situation described here as the “silence doctrine”. This section explores these three doctrines in detail.
1.1. Denial of justice doctrine
Under the denial of justice doctrine, the court that sets aside an arbitral award assumes the role of adjudicating the merits of the dispute or, more specifically, the part of the award that has been annulled. This approach is prevalent in jurisdictions such as France, where, once a court sets aside an award, it rules upon the merits of the case, adhering to the arbitrator’s mandate, save where the parties agree otherwise.[12] The intuitive rationale for this approach would be rooted in the principle of avoiding a denial of justice. Historically developed to protect foreigners, the doctrine of denial of justice has evolved extensively and is now enshrined in numerous legal frameworks. For instance, Article 4 of the French Civil Code states that “a judge who refuses to judge, on pretext of the silence, obscurity or inadequacy of the law, may be prosecuted as guilty of denial of justice”.
A similar provision exists under Rwandan law. Article 9(2) of Law No. 22/2018 of 29/04/2018 governing civil, commercial, labor, and administrative procedure,[13] provides that “A judge cannot refuse to decide a case on any pretext of silence, obscurity or insufficiency of the law”. Under this doctrine, therefore, a judge’s decision to determine the merits of an annulled arbitral award would ensure a comprehensive and timely resolution of the parties’ grievances, thus fulfilling the mandate to avoid any denial of justice.
1.2. The will of the parties doctrine
Under the will of the parties doctrine, the court that sets aside an arbitral award refrains from addressing the substance of the dispute. Instead, the court respects the parties’ initial agreement to resolve their disputes through arbitration. This approach is practiced in jurisdictions such as Poland, where a state court that annuls an award does not make a substantive ruling on the case.[14] Rather, it remits the case to arbitration for redetermination. The extent of the rehearing can vary, either addressing the entire dispute afresh or focusing solely on the specific aspect that was set aside.
The will of the parties doctrine is grounded in the principle of party autonomy, which is a cornerstone of contract law. This doctrine is famous in contractual matters and has been described as an axiom of contract law.[15] Scholars such as Albert van den Berg argue that even the drafters of the New York Convention intended to ensure that enforcing courts would not have the authority to reopen cases on their merits.[16] Arbitration is, after all, a contractual procedure designed to settle disputes based on the parties’ agreement, and the principle of arbitration’s contractual nature is and should be widely regarded as inviolable. This description is widely supported, and the principle of the contractual nature of arbitration has acquired an inviolate and sacrosanct arbitration rule.[17]
With regard to the procedure of setting aside an arbitral award, Courts in various jurisdictions have supported this doctrine by referring to the parties’ autonomy. For example, in Ireland, courts have generally been reluctant to interfere in arbitration matters unless there is a compelling reason to do so.[18] In Hogan v St. Kevin’s Co., the court affirmed that: “Where the parties refer disputes between them to the decision of an arbitrator chosen by them … it is obviously and manifestly their intention that the issue between them should be decided …. finally by the person selected by them to adjudicate upon the matter”.[19] Similarly, in Nyutu Agrovet Limited v. Airtel Networks Kenya Limited, the Kenyan Court of Appeal emphasized that courts should respect the parties’ decision to arbitrate their disputes, underscoring the contractual nature of arbitration. The Court of Appeal held as follows: “The principle on which arbitration is founded, namely that the parties agree on their own, to take disputes between or among them from the courts, for determination by a body put forth by themselves”.[20] The Court of Appeal of Kenya added that the courts should respect the will and desire of the parties to arbitration.[21] Scholars also confirm that courts should assist in the arbitration to ensure the integrity of the arbitral process and protect the public interest but not interfere to safeguard the confidence of users of the arbitral system.[22]
Within the will of the parties doctrine, two sub-approaches exist. The first respects the parties’ original will and allows for the dispute to return to arbitration. Here, it is about the past agreement of the parties that continues to govern the present and future actions. The second approach provides flexibility, allowing the parties to determine the next steps, i.e., expressing a new will. Under this model, the parties may choose to refer the dispute back to arbitration or allow the court to render a decision on the matter.
This doctrine is the practice in jurisdictions like Switzerland, where, after setting aside an arbitral award, the court remits the dispute to the arbitration to make a new award.[23] The same is true in Germany, where section 1059(4) of the German Arbitration Act provides that “The court, when asked to set aside an award, may, where appropriate, set aside the award and remit the case to the arbitral tribunal”. This section continues in the fifth paragraph that “Setting aside the arbitral award shall, in the absence of any indication to the contrary, result in the arbitration agreement becoming operative again in respect of the subject matter of the dispute”.[24] In South Africa, the law permits either party to request the dispute be resubmitted to a new arbitral tribunal constituted in the manner directed by the Court.[25] The United States law is in the same line but with more details: either to refer back the dispute to the same arbitrator or a new arbitrator. This is provided for in Section 23(c) of the United States Revised Uniform Arbitration Act, stating that if the court nullifies an arbitral award on grounds other than the invalidity of the arbitration agreement, “it may order a rehearing” except if the ground for setting aside the arbitral award is corruption, fraud, or arbitration misconduct or partiality. In such cases, the rehearing must be before a new arbitrator.[26] The practice in these jurisdictions is in the application of the first sub-approach described above.
The second sub-approach, which offers more flexibility, is adopted in countries like Vietnam and the Netherlands. For instance, Article 71(8) of the Vietnamese Law on Commercial Arbitration allows the parties to either arbitrate again or litigate the case in court following the annulment of an award. A similar approach is in the Netherlands. According to Article 1067 of the Dutch Arbitration Act, if an arbitral award is set aside for any ground other than the non-existence of a valid arbitration agreement, the arbitration agreement remains in force, and the parties are permitted to return to arbitration unless they mutually agree otherwise.[27]
In China, Article 9 of the Arbitration Law provides that once an “arbitral award is canceled or put in void under a rule by the People’s Court, the parties concerned for the dispute may reach another agreement for arbitration and apply for arbitration or bring a suit in the People’s Court”. The United Kingdom also offers flexibility, and depending on the parties’ preferences and specific circumstances, parties can choose to continue with arbitration or litigation in court as they settle amicably.[28]
1.3. The silence doctrine
Under the silence doctrine, the court that sets aside an arbitral award does not provide any further guidance on how the parties should proceed. The court simply declares the award unenforceable but remains silent on what steps the parties should take next. This creates uncertainty, as the parties are left without clear direction on how to resolve their dispute following the annulment.
This approach is followed in jurisdictions like Armenia, where the law does not specify the procedural steps following the setting aside of an award.[29] Rwanda similarly adopts a silence approach. As is discussed in the next section, Rwandan courts have set aside a few arbitral awards without indicating the parties’ next steps, leaving them in a state of uncertainty.
2. Setting aside an arbitral award under Rwandan law
Under Rwandan law, the setting aside of an arbitral award is governed by the 2008 Arbitration Law. Article 47 of this law provides a comprehensive list of grounds upon which an arbitral award may be annulled, either upon the application of a party or at the discretion of the Court. Four grounds are available for a party seeking to set aside an award:
Incapacity of a party to the arbitration agreement, or invalidity of the agreement under the law to which the parties have subjected it, or failing any such indication under Rwandan law.
The party making the application was not given proper notice of the appointment of an arbitrator or the arbitral proceedings or was otherwise unable to present his or her case.
The award addresses a dispute not contemplated by, or falling outside the terms of, the submission to arbitration or includes decisions on matters beyond the scope of the submission. In such cases, if the decisions on matters submitted to arbitration can be separated from those not submitted, only the part of the award containing decisions on matters not submitted may be set aside.
The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the parties’ agreement unless such an agreement conflicted with provisions of the law from which the parties could not derogate or, failing such agreement, was not in accordance with the law.
For the Court, two reasons are available:
The subject matter of the dispute is not capable of settlement by arbitration under the Rwandan Law.
The award conflicts with the public security of the Republic of Rwanda.
In relation to the subject matter of this paper, a few cases are available to guide the discussions. Our research identified four available cases where arbitral awards were set aside. These cases have been publicly discussed before the courts, rendering their contents part of the public domain. This circumstance permits a thorough examination of these cases without interfering with the principles of privacy and confidentiality ordinarily associated with arbitration proceedings.
The first case, RCOMAA 00043/2019/CA, was decided by the Court of Appeal on 06 December 2019. It involved two Chinese nationals engaged in business activities in Rwanda, including a jointly owned company. Following the arbitration proceedings, one party sought to annul the award, arguing that his right to defense had been compromised concerning certain evidence. The Commercial High Court, in RCOMA 00020/2018/CHC/HCC, set aside the award. Upon appeal, the Court of Appeal dismissed the appeal and upheld the lower court’s decision. Notably, neither the Commercial High Court nor the Court of Appeal provided any indication as to the future course of action following the annulment of the award.
The second case, RCOM 00026/2021/HCC, was decided by the Commercial High Court on 15 July 2022. A dispute arose between two companies over a service agreement. The losing party applied to set aside the arbitral award, arguing that additional evidence was submitted after the deadline set by the arbitral tribunal and that the complaining party had not been granted the opportunity to respond to such evidence. The tribunal’s reliance on the evidence, without affording the complaining party a chance to defend itself, was deemed to violate its constitutional right to defense. Consequently, the Commercial High Court annulled the award.
The third case, RS/INJUST/RCOM 00018/2022/CA, began in the Commercial High Court under RCOM 00034/2022/HCC. A party sought to annul an arbitral award rendered in a dispute that had already been amicably settled between the parties. On 28 October 2022, the Commercial High Court rejected the application, leading the applicant to file an appeal before the Court of Appeal via an extraordinary review procedure for manifest injustice. The Court of Appeal, in its judgment of 29 May 2023, set aside the award on the grounds of the non-arbitrability of the subject matter. As in the previous cases, the Court of Appeal did not provide guidance on the future proceedings following the annulment.
The fourth case, RCOM 00049/2021/HCC, was decided by the Commercial High Court on 12 April 2024. The applicant sought to annul an award issued by an ad hoc arbitral tribunal, citing violations of the right to defense and public policy. While the Court rejected the claim regarding the right to defense, it ruled in favor of the applicant
Integrating the Environmental Dimension into Urban Planning in Algeria: Towards a Sustainable Future
Full text linkThe urgent need for reconstruction and construction imposed by rapid demographic growth has become directly or indirectly affecting the environment, given the size of the effects left by urban sprawl at the expense of the environment, in addition to the spread of tin scenery and the expansion of chaotic buildings, for these reasons, the environmental dimension has become one of the necessities that must be taken into account in all development plans, as is the case with preparation and reconstruction plans.
The latter is one of the most important legal means of protecting the environment from the risks of reconstruction and construction, and these plans mainly include the National Plan for the Development of the Territory, the Master Plan for Development and Reconstruction, and the Land Occupation scheme.
This study showed the extent to which the environmental dimension is included in these plans and the extent to which they achieve sustainable development in Algeria.
Keywords: Environmental dimension, Sustainable development, Urban law, Urban planning.
Introduction
At first glance, it seems that both urban law and environmental law are objectively different from each other and even contradictory, considering that urban law is based mainly on the idea of exploiting natural areas to establish buildings and urban spaces of various forms and types and extend its expansion at their expense, while the environmental law seeks to protect the three elements of the environment (land, water, and atmosphere) from various forms of environmental degradation known by the ocean and environmental environments, as it has become a threat to the lives of living organisms, which made the alarm sound strong to defend the environment and issue many legal texts to protect it.
Among the most prominent of them are the urban laws, which adopted new ideas that pay attention to some distinctive parts of the environment such as the coast region, regions with natural advantages, and natural, cultural, and historical reserves without neglecting agricultural lands, and thus the law of urbanism and the environment meet and share the subject of environmental protection, but more than that, the issue of the environment in the urban sector has become a basic requirement to devote the principle of sustainable urban development, and this is through the adoption of the Algerian legislator the idea of including the environmental dimension within the tools of reconstruction and construction to achieve the goals and objectives of development Sustainable urbanism.
Based on the above, addressing this issue requires us to raise the following problem:
To what extent has it become necessary for the urban system in Algeria to adopt the environmental dimension within the reconstruction and construction plans? What are the main effects of this to achieve the goals of sustainable urban development?
To answer this problem, we relied in our study on the analytical approach because we need to address the most important aspects related to the study of this topic.
To try to familiarize ourselves with the contents of this research, we decided to present its contents in two sections as follows:
First section: the inevitability of evoking the environmental dimension within urban plans.
Second section: the effects of integrating the environmental dimension on sustainable urban development.
1. The Inevitability of Evoking the Environmental Dimension within Urban Plans
If the task of reconstruction laws is to control and regulate land occupancy operations of various types and manifestations, the environment is the vessel that occupies these operations and is affected by them, which requires the necessity of developing urban choices restricted by environmental controls, taking into account the proper use and exploitation of natural and urban spaces in a balanced manner, as well as the preservation of ecosystems.
The urgent need for reconstruction and construction due to rapid demographic growth has affected the environment, whether directly or indirectly, given the magnitude of the effects created by urban sprawl at the expense of the environmental environment, in addition to the spread of tin landscapes and the expansion of chaotic buildings, which had a significant impact on the corruption and distortion of the general and aesthetic landscape of urbanization.
1.1. Preparation and Reconstruction Plans are Tools to Protect the Environment
The planning and reconstruction plans are the National Plan for the Development of the Region, the Master Plan for Development and Reconstruction, as well as the Land Occupation Plan.
The Algerian legislator has tried to integrate the environmental dimension into these three laws.
1.1.1. Environmental Dimension of the National Plan for the Development of the Territory
A. Definition of the National Plan for the Development of the Territory
Law n° 01-20 on the Law on the Development and Sustainable Development of Region[1] included the National Plan for Regional Development, which the first article of the same law defined as “a tool that works to develop the national space sustainably and harmoniously to face the great entitlements of the future”.
This law sets out how the State seeks to ensure the triple balance of social equity, sustainable development, and environmental support within the framework of sustainable development at the national level for the next 20 years.[2]
The National Plan for the Development of the Region is a legal guidance document based on four guidelines, based on a set of major principles and proposals that include the implementation of a number of workshops, such as the construction of dams, through the activation of specific and precise action plans.[3]
B. Environmental Objectives National Plan for the Development of the Territory
Among the objectives stipulated in Law 01-20 and pursued by the National Plan are the following:
Support and activate rural media, regions, regions, and regions in difficulty;
protection and development of historical ecological heritage;
protection, valorization, and rational use of heritage, natural and cultural resources, and their preservation for future generations;
protection of regions and populations from hazards associated with natural variability;
Protecting and valuing ecologically and economically fragile spaces and communities by determining the methods of preserving them, such as coastal areas, continental shelf, wetlands, mountainous heights... Etc.[4]
1.1.2. The Environmental Aspect of the Master Plan for Development and Reconstruction
A. Definition of the Urban Planning and Reconstruction Directive Plan
Article 16 of the Planning and Reconstruction Law defines the planning and reconstruction master plan as “a spatial planning and urban management tool that defines the basic guidelines for urban planning for the municipality and the municipalities concerned, taking into account the planning designs and development plans, and sets the reference for the land occupation plan”.
This plan seeks to regulate housing production on the territory of one or more municipalities to confront excessive and illegal expansions, as well as to ensure a balance between urban expansions and other areas in the medium term.[5]
Thus, it is a tool for prior control over any urban activity, and no license is granted for construction, construction, or demolition unless it is verified to the extent of its conformity with it and the land occupation plan.[6]
B. Content and Content of the Planning and Reconstruction Directive Plan
Article 19 of the Planning and Reconstruction Act defines the content of the master plan for planning and reconstruction, which is to define the types of sectors that make up any region: Perennial Sector, Programmed sector for reconstruction, Future Reconstruction Sectors, and non-reconstruction Sectors.
Executive Decree N° 91-177, amending and supplementing the contents of this scheme, namely:
Guidance report: specifies the general directives of the urban policy after explaining the current situation, the prospects for urban development, and the real estate base that will be applied within its scope;
Regulation: defines the rules applicable to each area covered by the sectors, for example, the predominant allocation of land, the nature of prohibited or special measures activities, as well as the areas of protection of areas and lands exposed to technological hazards... etc;
Documents and graphic documents: It includes several plans (status plan, preparation plan, easement processing plan, and a plan specifying the areas and lands exposed to natural and technological hazards).[7]
1.1.3. Environmental Aspect of the Land Occupation Scheme
A. Definition of Land Occupation Plan
Article 31 of the Planning and Reconstruction Law defines the land occupation plan as “the land occupation plan determines in detail within the framework of the directives of the planning and reconstruction master plan the rights and use of land and construction” and is, therefore, a tool aimed at determining the urban form of each area by regulating building rights on the land.[8]
It is also defined as a reconstruction tool that often gives the territory of a whole municipality in which the rules and rights of land use and construction are defined in detail while respecting the rules contained in the planning and reconstruction master plan.[9]
B. Content of the Land Occupation Plan
The land occupation plan consists of the regulation and the documents and the graphic documents for the regulation, it represents the regulatory part embodied in a memorandum of introduction proving the compatibility of the land occupation plan with the provisions of the master plan for development and reconstruction, as well as the rules determined for each homogeneous area, taking into account the special provisions applicable to some parts of the territory, as for the graphic documents, they contain several documents that include data, such as the site indication plan.[10]
C. Environmental Objectives of the Land Occupation Plan
The land occupation plan seeks to achieve a number of objectives in accordance with the provisions of the Planning and Reconstruction Law, which are to determine the minimum and maximum amount of permissible construction, to set the rules related to the external appearance of buildings, to determine easements as well as neighborhoods, streets, monuments, sites, and areas to be protected, to identify agricultural sites to be protected and protected, and to identify green spaces and public facilities.[11]
1.2. The Effectiveness of Development and Reconstruction Plans in Protecting the Built Environment
The objectives and principles contained in the planning and reconstruction plans have a direct impact on the environment, either negatively or positively, and this is what we will try to explain as follows:
1.2.1. The Role of the National Plan for the Development of the Region in the Protection of the Built Environment
The role of the national plan in protecting the environment is reflected in the fact that it includes several environmental principles, some of which are stipulated in the law to reduce environmental pollution as much as possible, and others aim to involve all actors in the framework of environmental protection.
The principles aimed at reducing environmental pollution are dealt with in Act No. 20-01 on the development and sustainable development of the territory.
These principles are as follows:
Biodiversity Conservation: The legislator requires all practitioners of activities, especially economic activities, not to harm biodiversity;[12]
Principle of non-degradation of natural materials: Article 9 of the Law on the Territorial Development emphasizes the rational exploitation of national spaces, especially the distribution of the population and places of economic activities throughout the national territory;
The principle of information and participation: by involving regional communities in the implementation of national planning and development projects at the local level;
The principle of precaution: through the valorization of natural resources and rational exploitation of them.
This principle is considered one of the most important elements that work to implement the national plan in the implementation of regional development policies by involving regional communities, citizens, and actors to find a balance between the optimal exploitation of natural resources and their preservation for future generations.[13]
As a result, the national plan is a forward-looking, preventive, and curative instrument that makes it possible to address environmental problems and to reduce as much as possible the depletion of natural resources.[14]
1.2.2. The Role of the Master Plan for Development and Reconstruction in Protecting the Built Environment
A master plan is a tool for reference control in the field of planning and reconstruction since no person or authority can carry out a reconstruction operation except by following the legal provisions contained therein.
It also works on planning the field and organizing cities and different types of construction, thus working to strike a balance between urban development and various other activities.
It also expands the scope of participation of public administrations and departments, including environmental management, which works to protect the environment, combat pollution, reduce tin neighborhoods, eliminate fragile and unhealthy housing, control transport schemes, ensure public service and protect the environment, and works to achieve a balance between the necessities of economic and social development.[15]
1.2.3. The Role of the Land Occupation Scheme in Protecting the Built Environment
The role of the land occupation scheme in protecting the built environment is to:
Achieving integration and homogeneity in the urban fabric through the economy in dealing with the field and working to protect agricultural lands and historical and cultural monuments;
Fighting fragile and chaotic buildings and aims to create an aesthetic architecture consistent with the surrounding environment containing green spaces and necessary public facilities;
Seeks to keep buildings away from risk-prone areas and keep them away from the streams of valleys and various networks.[16] 2. The Inevitability of Integrating the Environmental Dimension into Sustainable Urban Development
One of the requirements at present is to reconsider the policy of reconstruction and urban development through the imperative of integrating and invoking the environmental dimension to achieve a balanced and regular relationship between the citizen’s right to meet his needs in the field of urbanization and environmental concerns. This is to create a sustainable urban structure and development that responds to the requirements of present and future generations in the field of reconstruction and construction in accordance with the requirements of environmental protection.
2.1. Sustainable Development Principles and their Implementation in Urban Plans
2.1.1. The Principle of Sustainable Development
The imperative of integrating the environmental element into urban decisions and policies has become a basic requirement to enshrine the principle of sustainable urban development,[17] whose concept is still unclear and accurate in some important aspects, considering that the issue of the environment in the urban field today is no longer just a perfectionist thought, but has become an important requirement and a necessary endeavor that must be interacted with and responded to its requirements.[18]
By virtue of the link between the built environment and human activity and its effects on this environment, both positively and negatively, the Algerian legislator has deliberately developed a legal system in the field of reconstruction and related and influential areas and has worked hard to enshrine the principle of sustainable development and ensure the inclusion of environmental dimensions. It is applied and applied on the other hand.[19]
Among these laws, we find in particular Law 01-20 on the preparation and sustainable development of the territory[20] and the subsequent laws that emphasize the integration of environmental concerns in the framework of environmental protection and sustainable development, including Law 03-10 on environmental protection within the framework of sustainable development.[21]
Law 04-03 on the protection of mountain areas within the framework of sustainable development, Law 04-20 on the prevention of major risks and disaster management within the framework of sustainable development, as well as Law No. 11-02 on protected areas within the framework of sustainable development[22] Based on the adoption of the principle of sustainable development within urban plans and emphasizing it through the implementation of the content of these legal texts that protect the built environment as a whole and achieve the goals, principles and objectives of sustainable development as an integrated multi-dimensional, multi-sectoral and multi-party framework.
2.1.2. Mechanisms for Achieving Sustainable Urban Development
The Algerian legislator has clearly and explicitly adopted the legal arsenal related to the provisions of the protection of the built environment on the planning mechanism to ensure the protection of the environment and the achievement of sustainable development goals.[23]
Adopting a planning mechanism in the field of the built environment based on the legislation stipulated in this field will give it maximum protection, and this is by taking into account scientific studies, environmental conditions, and the requirements of health and social services.
Urban planning plays a leading role in the possibility of creating a sustainable urban environment based on scientific foundations and legal controls that protect the environment and natural and historical environments.[24]
Their protection is also a prerequisite for national sovereignty, the preservation of the living conditions of the population, and the countering of negative indicators of environmental degradation.[25]
Extrapolating legislation related to urbanization and reconstruction,[26] we find that it stressed the obligation to protect the built environment in light of the requirements of sustainable development, as there is no room to talk about sustainable development in the event of violating environmental laws or disturbing the environmental balance, and therefore urban plans aim to protect the environment, especially agricultural lands with high yields, coasts, and prominent beaches, in addition to forests, mountains, and areas with geographical, climatic and geological advantage such as mineral water and bathing, and protects urbanization by not being built in areas prone to earthquakes or natural hazards.
Article 3 of Act N° 03-10 incorporates the integration of environmental protection and sustainable development arrangements into the preparation and implementation of sectoral plans and programs.
In paragraph 3 of the same article, he also stressed the principle of substitution, as it is possible to replace an age harmful to the environment with another that is less dangerous to it, even if the cost is high, and one of its applications is to replace the different destinations of buildings with destinations inspired by our Algerian heritage.
The principle of preventive activity in reconstruction work is also stipulated in Article 3, paragraph 5, of the same law by subjecting reconstruction projects to environmental impact studies and prior authorization of polluting activities.
In addition to the principle of participation and information in reconstruction work under paragraph 8 of Article 3, which stipulates the right of every person to know the environmental situation and allows him to participate in the procedures followed when making decisions that affect it.[27]
Nevertheless, the lack of coordination between the various sectors and central and decentralized bodies, the weak contribution of civil society organizations, the lack of environmental awareness, and the lack of inves
The legal nature of the violations
Full text linkThis study aims to understand the nature of the offenses from the perspective of jurisprudence; By explaining the foundations of jurisprudence trends about the nature of the violations, and the criticisms directed against them, and highlighting the foundations of modern criminal policy in determining the nature of the violations, the study used a mixed methodology of descriptive, analytical, and comparative approach; To reach multiple conclusions, the most prominent of which is the division of comparative jurisprudence toward the nature of violations; One view is of an administrative nature, another view is of a criminal nature, and the doctrinal trend of the administrative nature of the infractions has been more conciliatory in the arguments, which is supported by the position of modern criminal policy; Based on the phenomena of reduced criminalization and reduced punishment; The legislative policy of States with regard to the nature of the offenses is not uniform and fixed, but relative; They differ from one country to another; The philosophy of the State, its political, economic and social environment, and the policy of the State itself may change from time to time; Unlawful conduct may be considered a general administrative offense, and its perception may have changed at another time; It is regarded as a minor criminal offense, and the study paves the way for future research on the adoption of an independent legal system for general administrative offenses and the establishment of a general theory of wrongdoing.
Keywords: Irregularities; administrative nature; criminal nature; modern criminal policy; reduction of criminalization; reduction of punishment
Introduction
Violation is Unlawful conduct. It poses a threat to society and has a wide scope in the economic and social spheres. Due to the rapid development of these areas, the jurisprudence agrees that violations are less serious than crimes classified as criminal.
The infractions are a violation of interests protected by law, but the interests protected are not of the same degree; it is recognized that irregularities do not affect fundamental or fundamental interests but complementary or secondary interests.
The violation is defined as Conduct that violates a reinforced pillar of a primary pillar of social existence and is complementary to it and attached to it, which entails a legal sanction,[1] and is defined by some of the jurisprudence as acts that occur mostly without mischief, and usually do not cause any harm[2] and another side considers that acts or omissions that are not against public morality and do not dominate the ordinary sense of justice but that the State believes should be prohibited to maintain good order, honesty and hygiene by strengthening its orders with a penal penalty, the perpetrators must not be placed among the criminals; They lack a social orientation, not a moral one.[3]
Based on the above, the legal affiliation of the infractions was a matter of doctrinal dispute, different from their nature, whether they constitute a type of criminal offence, whether the perpetrator is punished with a criminal penalty or not, and whether they constitute a general administrative offence; The perpetrator shall be subject to a general administrative penalty. Each doctrinal trend was pursued based on arguments and justifications, which he believes reinforces his point of view. This was followed by an attitude of modern criminal policy toward the nature of offences. It is based on two doctrinal phenomena, the reduction of criminalization and the reduction of punishment, based on scientific and practical reasons and justifications.
Before proceeding to the subject of our research, marked by the comparative position of jurisprudence on the nature of the violations, we explain the elements of the introduction as follows:
First, the importance of the study:
The subject of violations is one of the most important legal topics that have a legal and legislative resonance, the nature of which is the central pillar in determining the legal affiliation of violations, which will help to establish a general theory of violations; the importance of research is highlighted in two respects:
The scientific aspect is taking a note of the doctrinal position on the nature of the violations and the arguments and justifications of each doctrinal trend, whether in favour of their criminal nature or of their administrative nature, in addition to the position of modern criminal policy based on the phenomena of reducing criminalization and limiting punishment, and the consequences of such attitudes; It defines the legal framework to which it belongs and affects the nature of the sanctions that may be imposed on the perpetrators.
The practical aspect is the commitment of the competent authority in practice to adjudicate disputes of violations and seek practical mechanisms to reduce the burden on the competent judiciary, which is already overburdened with cases, to reduce the inflation of criminal legislation.
Second, the study problem:
The difference in the nature of the violations mean the difference in their effects, in particular, the sanctions they entail. This means the inability to establish a general theory of wrongdoing. The modern criminal policy has, therefore, adopted a central position in determining its nature, contributing to resolving the backlog of cases before the competent judiciary and reducing the inflation of criminal legislation. So, the problem of the research lies in the main question: what are the reasons for the difference in the position of comparative jurisprudence from the nature of the violations? It is divided into the following questions:
What are the principles on which the doctrinal trend in support of the nature of administrative violations has been adopted? What criticism is directed at it?
What are the principles on which the legal trend in support of the nature of criminal offences has been based? What criticism is directed at it?
How did modern criminal policy define its position on the nature of the offences?
Third, objectives of the study:
Understand the nature of violations from a comparative doctrinal perspective.
Statement of the foundations of doctrinal trends on the nature of violations, analysis and evaluation.
Highlight the foundations of modern criminal policy in determining the nature of offences.
Fourth, methodology of the study:
The study adopted a mixed methodology of descriptive, analytical, and comparative approaches, mentioning the opinions and statements of comparative jurisprudence in violations, analysis, and discussion.
1. The position of traditional criminal jurisprudence on the nature of violations
There has been a dispute over the nature of the offences. Their definitions differed; Some of them were perceived as administrative offences, that is, they belonged to administrative law, and some of them were considered criminal offences, that is, they belonged to criminal law, including each direction had its own reasons and reasons. This is what we address in the doctrinal position in support of the administrative nature of violations (the first requirement) and the doctrinal position in support of the criminal nature of violations (the second requirement).
1.1. The doctrinal position in support of the administrative nature of violations
A trend in jurisprudence is to deny the status of crime over offences; Thus, it was removed from the scope of criminal law and only attached to administrative law, which was pioneered by German jurists. He was the first to set the boundaries between crimes and general administrative violations, and this trend appeared at the end of the 18th century. And is believed that there are crimes that are not of a criminal nature in the sense of understanding in the Penal Code,[4] says the Italian jurist (Zanubini) explaining the doctrinal position of this trend: “While the distinction between offences and misdemeanours was discussed by criminal law scholars in Italy and France, German criminal law and administrative law scholars were looking at the separation of misdemeanours or criminal offences from tax offences and, in general, administrative offences”.[5]
This statement confirms the role played by German jurisprudence, as well as the Italian jurisprudence that was influenced by it. The Administrative Violations Law was issued in Germany, and the Administrative Penal Code was issued in Italy. They emphasized the administrative nature of violations, and regulated the provisions of those violations, far from the general penal code.
1.1.1. The foundations of the jurisprudential trend in support of the administrative nature of violations
German jurists were the pioneers of this trend, but they differed in determining the basis on which they drew the distinction between public administrative offenses and crimes, as follows[6]:
First, the violation of the idea of natural law:
(Lutz and Feuerbach) consider their establishment based on the idea of natural law. The offence is criminal in nature based on the point of view when it constitutes a violation of natural law and positive law, and this is not the case in general administrative offences which violate the positive sub-natural law. Therefore, public administrative offences do not fall under the category of natural offences since they are organized (artificial) offences of the legislature. Thus, criminal, and social research is not a concern; it is intended only for the interests of the state.
Second, violation is not a crime of injury:
The German jurist (Goldschmidt) considers an infraction not a crime of injury. The offence is not committed by positive acts affecting the basic components of society and is a crime of failure to enable the administration to perform its duty properly. Therefore, they are often committed by negative behaviour about participating in good governance; That is, whoever violates a legal rule of an administrative nature is contrary to the administrative obligation in the face of the administration and is not a criminal in a sense understood to the criminal law, and the violations on this basis are only administrative crimes, which was expressed by the German jurist (Bandung) saying: that the criminal offence is a violation of personal legal interest, whereas the offence is considered only disobedience or disobeying an administrative order; They are merely a conduct contrary to a peremptory norm of law.
Third, they agree with the rules of civilization:
Max Mayo holds that the rules of civilization, which are, in fact, moral rules, constitute the civilizational responsibility of the people, and therefore, they adhere to them. If they are in accordance with the legal rules, which May did not prepare, they are addressed to the citizens, and therefore, they are not obliged to act upon them. If they are addressed from the street to the competent bodies, then they belong to the criminal law, and if they do not agree, which is the case with the violations, then they are considered an administrative offence, subject to the provisions of the administrative penal code.
Fourth, the historical basis of the nature of administrative violations:
In Roman law, the question of adjudication of offences was left to the administrative authority.[7] The theory of irregularities is based on a purely historical basis; Roman law referred penalties for police offences to be applied directly by judicial officers acting as police officers; Violations are committed directly to judicial officers who perform police functions, and the same is applicable under German law. Penalties for violations were issued by an administrative authority.[8]
Fifth, criminalization tendency because of crises and wars, simplification of procedures:
The tendency, owing to crises and wars, to criminalize many acts and omissions was previously permitted and did not in themselves signify criminal danger. This has resulted in an increase in crime and has led to duplication in the Penal Code, where the administration tracks the violator, tries him, and executes what it sentences, and the supporters of this system see it as a simplification of procedures and a reduction of the judicial authority in crimes of little harm or danger so that they do not deserve the guarantees prescribed for crimes and misdemeanours.[9]
Sixth, the difference of violations from crimes in the type of interest and in the moral element:
This trend is justified by the fact that offences are not crimes. German jurists argue that there are two fundamental differences between a public administrative offence and a criminal offence: first, the offence is not an assault on a public interest or a community interest; they are merely a departure from the system or a lack of obedience to it, or they are merely the cause of administrative harm, or the second difference appears in the moral element. In a criminal offence, wilful or negligent action is required, while in general administrative offence, error is often assumed.[10
1.1.2. Criticism of the grounds of the administrative nature of the violations
Some of the supporters of this trend are those who reserve by saying that[11] the distinction between crime and a public administrative violation will remain complicated, as some believe that in most cases, the act of the perpetrator can be described as a criminal offence and a general administrative violation together, except for the act which the Penal Code provides for criminalization, such as embezzlement and falsification of official documents, betraying the officials of the economic administration, tampering with the supply of the state, and only practical application will show in the future the validity or invalidity of the legislative experiment.
Despite this trend, it has been criticized. Most notably, the historical basis was abandoned by the advent of the French Revolution. General administrative offences and sanctions have been incorporated into the Penal Code in accordance with the principle of no crime and no penalty except by provision. Thus, the determination of the nature of the offence does not rely on historical precedents but rather takes place through the system of positive law. Therefore, public administrative offences have become criminal since the time they were incorporated into the Penal Code,[12] and not all public administrative offenses are passive offenses, some of which are also positive, and are attested in several texts, in addition to the arguments put forward by supporters of the trend in favour of the criminal nature of the offenses.
It can be said that this trend suggests that offences are administrative, not criminal offences and that they are replaced by administrative law, not criminal law; this is why the people who are in this direction have shown themselves. This is reflected in some comparative legislation, which introduced the dual system of the Penal Code. The Penal Code is limited to felonies and misdemeanours, while the offences are in an independent group called the Administrative Penal Code.[13] As in Italy, it is regulated in what can be called the Code of Administrative Offences, as in Germany.
1.2. The doctrinal position in support of the criminal nature of the violations
Proponents of this trend believe that offences should be kept under criminal law and that a branch of the ordinary Penal Code cannot be recognized. It is a unit of all the offences; it contains felonies, misdemeanours, and offences to which the same provisions, both material and formal,[14] are generally applicable, but it recognizes that they are minor offences. We address the foundations of this trend in favour of the criminal nature of the infractions (section I) and the criticisms levelled against it (section II).
1.2.1. The foundations of the jurisprudential trend in support of the criminal nature of the violations
The proponents of this doctrinal trend are many, especially in France, on several bases, place offences within the scope of the Criminal Code. To sum them up:
First, the sharing of the character of moral sin:
The common nature of offences with felonies and misdemeanors is a moral sin, and they add that the rule’s susceptibility to change or inconsistency is not limited to offences alone, but every rule of law is subject to it.[15]
Second, commitment to the principle of separation of powers:
This trend finds that the administration is entrusted with a share of the judiciary, contrary to the principle of separation of powers. The administration then combines the qualities of the adversary and the judge, and the staff of the administration lack the necessary training for the judiciary, which allows the matter to be brought to justice after the administration has been empowered to adjudicate such offences. This leads to complexity and prolongation of the proceedings, in addition to the fact that the rules for distinguishing between criminal offences and public administrative offences are vague and lack the required clarity in criminalization and punishment, which is inconsistent with the principle of legality. According to this principle, individuals must be able to be informed in advance of the penalties to which they are subjected if they commit an act or omission, and it is impossible for the perpetrator to know in accordance with such controls the type of offence he commits.[16]
Third, the agreement of violations with the crimes of the elements, the scope of application and the reasons for permissibility:
Offences contain all the general elements of the offence,[17] and the scope of application of the Criminal Code in terms of time and location applies to offenses, as well as the grounds for permissibility, when the conditions are met; because they are general reasons, they do not relate to a particular crime.[18]
Fourth, preserving the integrity of the Penal Code:
The logic is consistent with the logic that the interests protected by the Administrative Penal Code relate to administrative law, not to the Penal Code. The rules of the Penal Code are dispersed and distributed to other branches of the law. Punitive rules relating to trade or industry become branches of law called the Commercial Penal Code or the Industrial Penal Code, and these results are unacceptable; they destroy the integrity and substance of the Penal Code.[19]
Proponents of this trend have coined the term special penal codes, which are meant to include the range of offences that have a certain legal independence under which the administrative penal code is incorporated, and the criterion of such independence has been questioned. Some went on to introduce the criterion of legislative independence, that is, the existence of a certain set of offences in legislation separate from the Penal Code, such as the Traffic Act, while others have considered the interest that the legislation aims to protect. Thus, material interests are protected by the Financial Penal Code, and economic interests are protected by the Economic Penal Code, thus, it is likely from the jurisprudence that the independence of the Special Penal Code does not mean its complete separation from the General Penal Code. However, the general provisions of the Act remain the principal to be referred to whenever the special Penal Code is deficient or deficient.[20]
1.2.2. Criticism of the grounds supporting the criminal nature of the infraction
Although the criminal nature of the offences is defended and maintained in the framework of the tripartite division of the offence, it is governed by the Criminal Code; there are those who believe that some laws should include administrative and disciplinary sanctions for those who violate certain administrative provisions; in such cases, the legislator considers that the offence is a minor offence and does not deserve to be considered a criminal offence.[21] This statement acknowledges general administrative offences; no justification for him.
In addition, offences are distinct from offences and misdemeanours in many legal provisions. Whether the substantive provisions or the procedural provisions, for example, in the origin of the violations are unintentional crimes, some jurisprudence even holds that the violations are material crimes, and if the trend is not to believe that the violations are material crimes, stressing that “there is no crime without a moral element”. The difference between offences and offences and misdemeanours remains clear regarding the form of the moral element, and the offences, due to their insignificance, are not recorded in the criminal record or the criminal record, the system of rehabilitation does not apply to them, and there is no need to apply it to them.[22]
In this discussion, we conclude by discussing the grounds for both directions and the criticisms directed against them. The trend of administrative nature was successful in its arguments, and although there were some observations, they were not substantive, as was the trend of the criminal nature of the infractions. What has been said is the abandonment of the historical basis of the administrative nature of irregularities after the French Revolution. It does not mean that the nature of administrative offences is extinguished. As practical as it has been, the principle of separation of powers has been rigidly applied. France has since recognized the nature of administrative offences, which are met with general administrative sanctions, and the principle of separation of powers has not been violated but has been applied flexibly. Cooperation between the authorities, the relationship of cooperation between the judiciary and the executive branch, and the statement that there is an agreement in many provisions betwee