Journal of Law, 2 2016.Indd

Ivane Javakhishvili Tbilisi State University Faculty of Law Journal of Law №2, 2016 The following issue is dedicated to the 65th birthday anniversary of the prominent representaƟve of Georgian legal science Professor Tedo Ninidze UDC(uak) 34(051.2) s-216 Editor-in-Chief Irak li Bur duli (Prof .,TSU) Editorial Board: Levan Ale xid ze ( Prof.,TSU) Gi orgi Da vi tas hivi li (Prof., TSU) Avtan dil De met rashvili ( Prof .,TSU) Guram Nac hke bia (Prof., TSU) Tev do re Ninidze ( Prof., TSU) Nugzar Sur guladze ( Prof.,TSU) La do C hantu ri a (Prof., TSU) Besarion Zoidze (Prof., TSU) Gior gi K hubua ( Prof.) Las ha Bregvad ze (T. Tse re te li I nstitute of State and Law, Di rec tor ) Pa ata Tu rava ( Prof.) Gunther Teubner (Prof ., Fran kfurt Uni ver sity ) Law rence Fri ed man (Prof ., Stanfor d Uni ver sity) Bernd Schünemann (Prof., Mu nich Uni ver sity ) Pe ter Häberle ( Prof., Bay re uth Uni ver sity) Published by the decision of Ivane Javakhishvili Tbilisi State University Publishing Board © Ivane Javakhishvili Tbilisi State University Press, 2017 ISSN 2233-3746 Table of Contents Tamar Zarandia Component Parts of a Thing and Appurtenance in Georgian Property Law........................................................ 5 Ketevan Kochashvili Will and ManifestaƟon of the Will .................................................................................................................... 13 NaƟa Chitashvili Specificity of Some Ethical DuƟes of Lawyer Mediator and Necessity of RegulaƟon ........................................ 23 Lela Janashvili, Giorgi Gogiashvili Problems with the Modern State Territorial OrganizaƟon ................................................................................ 41 Giorgi Amiranashvili Some CharacterisƟcs of Formal Requirements for a Legal TransacƟon in American Law ................................. 55 Ana Tokhadze LegislaƟve Shorƞall of Investor’s ProtecƟon in the Process of Involuntary “Typological Death” of Accountable Enterprise from the Exchange Stock ........................................................................................63 Mariam Ioseliani The Role of Sydnicated Loan in Project Financing ............................................................................................. 75 Daria Legashvili PeculiariƟes for DefiniƟon of the EssenƟal CondiƟons of the Agreement Concluded in Favor of the Third Party on the Basis of an Independent Require .............................................................................81 Nino Pepanashvili The PresumpƟon of Fault of Provider of Medical Services Under the Civil Code of Georgia ............................96 Salome Kavtaradze On Due Diligence, as the Issue of Legal NoƟon ............................................................................................... 103 Tamar Khubashvili ObligaƟons Related to the Property Rights Subject to RegistraƟon with the Public Registry ......................... 115 Maia Kopaleishvili For Declaring the Legal Act Void ...................................................................................................................... 131 George G. Tumanishvili Universal System of Sex/Gender RegistraƟon ................................................................................................ 139 3 Journal of Law, №2, 2016 Lasha Margishvili Federalism as the Territorial OrganizaƟon Form Historically ExisƟng in Georgia ............................................ 145 Zurab Jibgashvili DefiniƟon of the Role of ArbitraƟon of the President of Georgia and Some of its Features ...........................160 Revaz Khoperia A Rule of Carrying out DiscreƟonary Power of an AdministraƟve Agency ...................................................... 169 Giorgi GeƟashvili Substance of Community Service .................................................................................................................... 177 Maia Kvirikashvili Witness Coaching by a Prosecutor .................................................................................................................. 188 Lasha Panchulidze The Concept of Customs Value, DeterminaƟon of its Essence and Amount According to the Note to ArƟcle 214 of the Criminal Code of Georgia .......................................................... 194 KhaƟa Shekiladze The Substance of the Best Interests of the Child ............................................................................................. 205 Ushangi Bakhtadze The Harm Principle as One of the Bases of CriminalizaƟon ............................................................................ 219 Tamar Zarandia* Component Parts of a Thing and Appurtenance in Georgian Property Law Classification of things into component parts, essential component parts or appurtenances first of all concerns a physical criterion of more or less close linkage between things, though there are quite interesting issues, connected with a subject’s will. For example, an owner of a plot of land can appertain the thing possessed by him to an essential component part of an immovable thing by initiating a firm attachment of the thing to land. The same situation is with an appurtenance, which by definition of the Civil Code is a movable thing which, although not being a component part of the principal thing, but is intended to serve the principal thing and is connected to it by common economic purpose and thereby is linked in space to the principal thing and, according to established understanding, is deemed to be an appurtenance. It is important that just an owner can define the economic purpose of the movable things, be an intiator of the linkage of these things in space and in fact by expressing this will he is creating an appurtenance. Although is only the subject’s will sufficient or not to offer resistance to the objective criterion of physical connection between things? This issue can be argumented, though presumably an individual, subjective will cannot change terms established by law.The difference between these categories can be found in practical examples and the existed court practice. Key Words: a component part of a thing, an essential component part of a thing, a non-essential component part of a thing, an appurtenance, linkage, incorporation, a seeming component part of a thing, superficies solo credit-principle. 1. Introduction The main criterion of classification of things is their moveability, subjecting to motion and thus by classical classification things are divided into movable and immovable groups. According to the Civil Code of Georgia (hereinafter CCG) a thing may be either movable or immovable (Article 148). Immovable things include tracts of land and their essential component parts. The rest of the things are movable,1 be- cause they can change their place spatially and are not localized in any certain place. Apart from the above presented interpretation concerning a pure physical criterion of more or less close connection between things, there is also a rather interesting issue connected with a subject’s will. For example, an owner of a tract of land can reveal his will to a certain extent and manage to classify indirectly the thing owned by him and appertain it to immovable things by initiating a firm attachment of the thing to land. For example, an appurtenance, which by definition of the Civil Code is a movable thing which, although not being a component part of the principal thing, is intended to serve the principal thing and is connected to it by common economic purpose and thereby is linked in space to the principal thing and, according to established understanding, is deemed to be an appurtenance (Article 150 I). It should be noted that in relation to the principal things just an owner can define the economic purpose of the movable things, be an initiator of the linkage of these things in space and in fact by expressing this will he/she is creating an appurtenance. Although is * Associate Professor, Doctor of Law, TSU Faculty of Law. 1 Compare: Zoidze B., Property Law, Tbilisi, 2003, 32 with further notes. 5 Journal of Law, №2, 2016 only the subject’s will sufficient or not to offer resistance to the objective criterion of physical connection between things? This issue can be argumented, though presumably an individual, subjective will cannot change terms established by law. The CCG states that immovable things include a tract of land with its subsoil minerals, the land, plants grown on it and buildings and other structures firmly attached to the land (Article 149). Accordingly these criteria are difficult to be influenced, though as it was already mentioned, an owner can cause a certain discussion by connecting a movable thing firmly to an immovable one, for example, in case of premises. 2. Component Parts Parts, composing the existed thing are called components parts. Component parts can be different - essential and non-essential. Essential component parts are those parts of a thing that cannot be severed with- out either destroying the whole thing or this part, or extinguishing itspurpose (Article 150 I) (for example built-in fireplace). As a result of connection these things lose their independence and become a part of the whole thing(for example, building materials used in construction). The same can be said of cases, when parts canbe severed but expenses for carrying out this process are improperly high. By the definition of the Supreme Court of Georgia on defining a component part of a thing traditions of civil turnover are taken into consideration, but if there are

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