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Journal of Law Ivane Javakhishvili Tbilisi State University Faculty of Law Journal of Law #1, 2011 Tbilisi UDC(uak) 34(051.2) J-77 Editor-in-Chief Besarion Zoidze (Prof., TSU) Editorial Board: Levan Alexidze (Prof.,TSU) Giorgi Davitashivili (Prof., TSU) Avtandil Demetrashvili (Prof.,TSU) Mzia Lekveishvili (Prof., TSU) Guram Nachkebia (Prof., TSU) Tevdore Ninidze (Prof., TSU) Nugzar Surguladze (Prof.,TSU) Lado Chanturia (Prof., TSU) Giorgi Khubua (Prof.) Lasha Bregvadze (T. Tsereteli Institute of State and Law, Director) Irakli Burduli (Prof.,TSU) Paata Turava (Prof.) Gunther Teubner (Prof., Frankfurt University) Lawrence Friedman (Prof., Stanford University) Bernd Schünemann (Prof., Munich University) Peter Häberle (Prof., Bayreuth University) © Tbilisi University Press, 2011 ISSN 2233-3746 Table of Contents SCIENCE LALI ABRAMISHVILI PUNISHMENTS PROVIDED FOR BRIBERY ACCORDING TO OLD GEORGIAN LAW BOOKS .............5 DAVIT CHIKVAIDZE THE RULE OF EXECUTION OF SENTENCES OF CANON COURT ACCORDING TO PUNISHMENTS ....................................................................................................................18 MARIAM KHOPERIA THE ROLE OF MEDIATOR IN FAMILY SEPARATION ACCORDING TO GEORGIAN CUSTOMARY LAW ............................................................................................................................................35 GVANTSA GUGESHASHVILI PROTECTION OF GOODWILL BY COMPETITION LAW .............................................................................45 MICHAEL BICHIA SCOPES OF THE PRIVATE LIFE CONCEPT ACCORDING TO GEORGIAN LEGISLATION AND JUDICIAL PRACTICE.........................................................................................................................................57 IRMA GELASHVILI LEGAL AND ETHICAL PROBLEMS OF SURROGACY.................................................................................77 KETEVAN KOCHASHVILI INTERDEPENDENCE BETWEEN OWNERSHIP AND PROPERTY (With repect to the emergence of concepts and property rights) ...........................................................................90 TAMAR SHOTADZE COMPARATIVE ANALYSIS OF THE MORTGAGE AND “SECURITY PROPERTY”...............................119 Journal of Law #1, 2011 IRAKLI KAKHIDZE SYSTEM OF STATE SUPERVISION OVER THE ACTIVITIES OF LOCAL SELF-GOVERNMENT BODIES IN GEORGIA (Problems and Solutions)......................................................133 IRMA KHARSHILADZE AN ADMINISTRATIVE COMPLAINT AS A PREREQUISITE OF CLAIM SUBMISSION.........................152 ZURAB PAPIASHVILI LEGAL PROBLEMS RELATED TO THE STRUCTURE OF AND SERVICE AT THE MINISTRY OF INTERNAL AFFAIRS OF GEORGIA...............................................................................................................159 4 LALI ABRAMISHVILI∗ PUNISHMENTS PROVIDED FOR BRIBERY ACCORDING TO OLD GEORGIAN LAW BOOKS 1. Introduction “Whatever the offender had to face according to the court decision for the commited crime or offence, was known as “punishment”.1 Punishment is a special measure, established by the state aga- inst offenders. Thus, since early period of development of law, any action, regarded as violation of the existed law or directed against morals, i.e. crime, would be subject to punishment. The further the so- cial relations developed, the more the number of offenders and crimes grew. Types of punishment were changing in accordance with it. Criminal and property-related punishments were known not only for the law created by the state, but for customary law, existing earlier, regulating social relations. In the period of domination of customary law, “administration” of justice was considered divine deed and imposition of “punishment” upon offen- ders was performed in the name of God. “Romans, Celts, East Indians considered justice divine deed and the same applied to many other areas. But in the course of time justice moved from heaven to earth and finally Themis’ temple was being established on sinful earth.”2 But even after adoption of laws developed and ruled by the state, during long time, justice still had connection with “heaven”. So law books B.C. and in the first centuries A.D. were created in the name of God. Collections of laws, with consideration of the period of their creation, appear in more or less perfect form before contemporaries. From present-day point of view high legal level of legislative collections, beginning from early slave- owning system manifests at least in clearly showing what was considered inadmissible action for society in far past and how and in which way the violators of public order had to be punished. In accordance with law books and legislation existing in any country, bribery, i.e. taking bribe by administrative and judicial officials was known among the actions considered crime. Generally, bribery is the result of moral grubbiness. Just moral depravity formed the basis for bribery in ancient Athens and Rome, where judges evidently took bribe.3 And bribe-taken judges were subject to punishment. According to the history of criminal law, bribe-takers and bribery were subject to very strict punishment as early as on initial stage of development of society. E.g. according to the information of ancient Greek historian Herodotus, the King of Persia Kambiz sentenced corrupted judge to death, then skinned him and ordered to cover the judge’s armchair with that skin so that any person willing to sit in the judge’s armchair ∗ Doctoral Student, TSU, the Faculty of Law. 1 Javakhishvlili I., History of Georgian Law, Book 2, section 2, Tb., 1929, 503 (In Georgian). 2 Urbneli N., Atabags Beka and Agbuga and their Law, Tb., 1890, 269 (In Georgian). 3 Veko M.A., Organization of Criminal Justuce in the Most Important Historic Period, M., 1671, 77 (In Rus- sian). Journal of Law #1, 2011 could remember what kind of punishment they would face in the case of bribe-taking4. And the King Darius used to crucify judges caught in bribe-taking and making improper decision on the case.5 The more the bureaucratic machinery developed and the circle of officials widened, the more this bureaucratic machinery was formed in its sense, as governmental authority, standing above society. And implementation of its, as governmental authority’s function was carried out through the same bureaucratic machinery. The mentioned moment was most clearly observed in Rome. Development of bureaucratic machinery was accompanied with development of bribe-taking, which is proven by criminal sanctions of the oldest law of Roman legislation – XII Tabula – towards bribe-takers. In addition to property-related punishments, death penalty was provided for bribe-taking judges according to the laws of XII Tabula as stringent punishment. Punishment was provided for bribe-taking in other laws of Rome of following period. More or less perfect law, covering all possible crimes of magistrates, is considered to be the law developed in 59 B.C.”Pex julia åaåtundarumÍ” (Digest.L.48,11; Cod.L.9,27) including general prohibition of magistrates’ becoming rich in illegal way, prohibiting bribe-taking. As for sanctions, it provided for returning of illegally obtained property, expulsion from province, deprivation of senator’s title together or without expulsion, as well as confiscation of property as addition to basic punishment, etc.6 Despite numerous laws and existence of strict sanctions against bribe-taking officials, bribe-taking and extortion still flourished in Rome. In his famous speech against Verres, Cicero showed various methods of stealing and named bribe-taking as the gravest and the most shameful crime.7 In spite of this, bribe-taking officials were still remaining unpunished, so the saying was widely spread in Rome: “nobody can blame a rich person, even if he is guilty”.8 In regard to this saying, the opinion of French scientist Labulle about Julius Caesar is interesting. Labulle wrote: “I don’t know why the historians are dazzled with his genius and don’t seal this dishonest embezzler with the stamp of shame”.9 The period of Roman Republic and Empire knows legal proceedings, where high officials were prosecuted for bribe-taking, but very often these processes ended up with acquittal of bribe-taker magistrates and officials for the simple reason that they bribed judges. E.g. Lucian, Gillian viceroy, who oppressed the population of the province with heavy charges and who was prosecuted by Augustus, saved himself from punishment only because the ceded major part of his property to Augustus.10 French legislation also provided for strict punishments. But it should be mentioned that serious fight against bribery was impossible in France, in the country, where all positions, including judges’ positions, were sold. Nevertheless, French history of law knows the cases of prosecution of bribe-taker officials. E.g. on May 29, 1582, parliamentary advisor Jean Paulia, who was a speaker on Gastena’s case, took house, as a bribe from Gastena, dismantled it, moved to Clicha and built it for himself. Jean Paulia, accused in bribe- taking, was dismissed from his position, he was prohibited to occupy any judicial position, he was exiled 4 Kaukhchishvili T., Herodotus, History, vol. II, Tb., 1976, 383 (In Georgian). 5 Brokauz F.A., Efron A.I., Encyclopedic Dictionary, vol. II, book II, Petersburg, 1982, 214 (In Russian). 6 Utewsky B.S., General Studies on Official Crimes, М., 1948, 46-47 (In Russian). 7 Ibid, 45. 8 Ibid, 45. 9 Utewsky B.S., General Studies on Official Crimes, М., 1948, 178 (In Russian). 10 Utewsky B.S., General Studies on Official Crimes,
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