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Journal of Law Ivane Javakhishvili Tbilisi State University Faculty of Law Journal of Law #2, 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 SULKHAN ONIANI EXTREME NECESSITY AS A REFLECTION OF TELEOLOGICAL DEFINITION FORMULA “SATURDAY FOR A MAN AND NOT A MAN FOR SATURDAY” – IN NOMO CANON.............................5 ELZA CHACHANIDZE FALSE NARRATING...........................................................................................................................................13 IRAKLI BURDULI ON THE ISSUES OF FINANCES OF NOTARY’S OFFICE AND REMUNERATION FOR NOTARY’S WORK .....................................................................................................................................28 KETEVAN IREMASHVILI THE CHARACTERISTICS OF LEGAL REGULATION OF HEALTH INSURANCE.....................................37 EKATERINE LAPACHI PUBLIC REGISTER – THE BODY REGISTERING THE RIGHTS ON IMMOVABLE OBJECTS AND THE REFORMS IMPLEMENTED IN THIS FIELD................................................................61 GIORGI MAKHAROBLISHVILI DOGMATIC-THEORETICAL DELIMITATION OF ENTREPRENEUR SUBJECTS ON THE BASIS OF CAPITAL SOCIETIES........................................................................................................80 NATIA CHITASHVILI HARDSHIP AND IMPOSSIBILITY OF PERFORMANCE ARISING FROM CHANGED CIRCUMSTANCES..........................................................................................108 ANA RAMISHVILI PRIVATE LAW MECHANISMS FOR THE PROTECTION OF CONSUMERS’ RIGHTS IN CREDIT AGREEMENTS FOR CONSUMERS ................................................................................................................142 SERGI JORBENADZE MISTAKES IN TRANSACTIONS, PARALLELS WITH OTHER LEGAL INSTITUTIONS.........................154 Journal of Law #2, 2011 GIA GOGIBERIDZE PROTECTION OF PUBLIC INTERESTS AND REGULATION OF THE LOBBYING PROCESS UNDER THE LEGISLATION OF GEORGIA DURING DECISION MAKING .............................................182 TAMAR ZAALISHVILI LEGAL GUARANTEES FOR THE SEPARATION OF COMPETENCIES BETWEEN THE LOCAL SELF-GOVERNMENT AND REGIONAL DECONCENTRATED GOVERNMENT.....................................198 NINO KILASONIA THE FORMS OF PUBLIC PARTICIPATION IN ADMINISTRATIVE RULEMAKING...............................209 BESARION ZOIDZE ON THE SCOPES OF OPERATION OF POSITIVE LAW, I. E. ORGANIZED/RESPONSIBLE PERSON AND TOLERANT STATE (Essay) ....................................................................................................220 GIORGI DAVITASHVILI CRIME AND PUNISHMENT IN GEORGIAN CUSTOMARY LAW ...........................................................2288 4 SULKHAN ONIANI* EXTREME NECESSITY AS A REFLECTION OF TELEOLOGICAL DEFINITION FORMULA “SATURDAY FOR A MAN AND NOT A MAN FOR SATURDAY” – IN NOMO CANON 1. Introduction Christian doctrine has profoundly impacted development of legal culture. Basic values of Christian religion have been reflected in universally recognized human rights and freedoms, as well as minimal legal prescription – criminal law. From history of law of Christian countries, including Georgia, it is obvious that issue of guilt has been thoroughly analyzed in works of clericals and clerical law documents. The question: why Christianity and not some other religion – the answer can be found in philosophical doctrine, elaborated by Christian religion in relation to the concept of a human being and the universe. Christianity appeared to be the only religion, which has set for itself rather a difficult task, completely different from other religions – trinity dogma and issue of dual nature of Jesus Christ. Christian theology has answered questions which had never been raised by other religions: how can God be trinity in one being, be embodied son of a man, have two natures, and therefore have “double will – divine and human,1 action of double nature– divine and human, self authority of double nature– divine and human, wisdom and knowledge – divine and human”, be “completely God while being a human and at the same time – completely human while being God?”2 Such deep interest towards the issue of will of Jesus Christ has naturally brought clerical figures to research of issues of human intellect and free will, law, justice, crime, punishment, and therefore, problem of guilt, circumstances excluding guilt and unlawfulness. Christian doctrine has also tho- roughly analyzed teleological principle. It is obvious, that society which, according to its legal development, is at the stage of impersonal declaring, is not interested in issues of guilt and extreme necessity. Such things can only be possible, when personal declaring principle is already introduced. Christianity is based on this moral-ethical principle, when behaviorist model already existing in human being projected for future situations, the very thought, idea about, readiness to commit criminal action, rather than just criminal action committed, are judged and considered sinful. 2. Importance of Teleological Definition “Legal methodology is a set of rules, which should be considered by law administrator while interpreting law ”.3 Importance of interpretation of law by a law administrator is clearly demonstrated in * Doctoral Student, Assistant Professor, TSU, the Faculty of Law. 1 John of Damaskus, Thorough Communication of the Orthodox Faith, Tb., 2000, 396. 2 Ibid, 411. 3 Khubua G., Theory of Law, Tb., 2004, 176. Journal of Law #2, 2011 witty words of Charles Evan Hugues - the Judge of Supreme Court of USA: “We are under a constitution, but the constitution is what the judges says it is.”4 Teleological jurisprudence is one of the most important methods of law administration. It is a distin- guished instrument in law administration. Through it “a judge does not interfere in the field of political competencies of a legislator, but he/she facilitates adoption of substantially correct decision”.5 Authors of certain textbooks of law theory completely ignore teleological definition among the methods of interpretation of provisions. In such cases place of teleological definition is partly occupied by logical, systemic and historical explanations, as well as restricted and extended definitions.6 It is known, that “Savin distinguished grammatical, logical, historical and systemic definition of legal norm. System, established by Savin is not identical to modern devices. E.g. Savin is definitely against teleological definition of norm”.7 Despite of such diverse evaluation, it is obvious, that while defining a specific norm it is possible to use only one - teleological method of definition instead of various other ones, which makes it an independent and unique method. It is quite natural, since “norm interpretation has subjective nature… there is no uniform system of law application. In one case a judge can rely on the will of historic legislator, and in other cases an advantage might be given to systemic or teleological method”.8 The word “teleology” has Greek origin (`Teleios~ - achieved goal and “logos” – doctrine) and defi- nes idealistic doctrine, according to which any development is realization of a predetermined goal.9 “Ac- cording to teleological jurisprudence there is always a definite aim beyond law. In the process of law ad- ministration it is essential to properly explain this goal and adopt a relevant decision. If literal content of the law contradicts with goal of the norm, a decision should be made on the basis of the goal of the norm, rather than literal meaning. Legal decision should be based on material, rather than formal correctness”.10 Teleological explanation is not a historical explanation, since it studies “objective aim of the law “ra- cio Legis” rather than initial will of a legislator (any ties of a law with the legislator are ceased upon adop- tion of a law)… aim is a basis of legal norm, if we understand aim of the law, we understand the law”.11 Two types of teleological definition – extended and restricted are distinguished: a) “Sometimes legal norm provides relationships, which are beyond its scope (based on the aim of the norm). In such cases literal definition of the text might contradict to the aim of the norm”.12 In such case we apply teleological reduction (restricted) definition and “the norm is not applied, if its ad- ministration can cause a result, opposite to the aim of the law. In such a case the law is given restricted interpretation according to its aim”.13 Obviously, teleological reduction requires special legitimization, since literal definition of the law is ignored by law administrator.14 But there is objective reason for such 4 Chanturia L., Introduction to the General Part of Georgian Civil Law, Tb., 2000, 120. 5 Khubua G., Theory of Law, Tb., 2004, 157. 6 Inwkirveli G., Theory of Public and Law, Tb., 1993, 128, 130; Savaneli B., Theory of Law, Tb., 1997, 189-190. 7 Khubua G., Theory of Law, Tb.,
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