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Journal of Law, No. 2, 2013

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Journal of Law, No. 2, 2013 Ivane Javakhishvili Tbilisi State University Faculty of Law Journal of Law №2, 2013 UDC(uak) 34(051.2) s-216 Editor-in-Chief Irakli Burduli (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) Besarion Zoidze (Prof., TSU) Giorgi Khubua (Prof.) Lasha Bregvadze (T. Tsereteli Institute of State and Law, Director) Paata Turava (Prof.) Gunther Teubner (Prof., Frankfurt University) Lawrence Friedman (Prof., Stanford University) Bernd Schünemann (Prof., Munich University) Peter Häberle (Prof., Bayreuth University) Published by the decision of Ivane Javakhishvili Tbilisi State University Publishing Board © Ivane Javakhishvili Tbilisi State University Press, 2014 ISSN 2233-3746 Table of Contents Besik Meurmishvili Official Pursuit Principle in the Georgian Law…………………………...…………………………….5 Sulkhan Oniani For the Meaning of Term "Btche" in Old Georgian Law…………………………………………..….13 Giorgi Amiranashvili Mistake as to the Identity of a Contracting Party – Feature of the Regulation in the Georgian Legislation …………………………...……………………………………………………………..…24 Nona Zubitashvili Doctrine of Corporate Opportunities in US and Georgian Law……………………………..………...40 Ketevan Iremashvili Insurable Interest Doctrine and Analysis of Its Critics…………………………...………………...….51 Daria Legashvili The Impact of Changed Circumstances on Contractual Relations…………………………...………..67 Natalia Motsonelidze The Role of Modern Biomedicine in Insurance Law…………………………...………………...….106 Ekaterine Kardava Labor Relationship Between Physical Persons…………………………...………………….……….116 Ketevan Japaridze News Institutes for Ensuring Fulfillment of Child Support Obligation…………………………...….129 Guram Nachkepia Methodological Problem of Grounding Accessorial Guilt of Participators to the Crime..………….149 Joseph Vardzelashvili Interrelation Problem of Qualification of an Act as a Crime and Objectives of the Punishment…….159 David Tsulaia The Genesis of Genocide…………………………...……………………………..………………….169 Rusudan Jobava Peculiarities of Translation of a Juridical Text from French into Georgian…………...…………….194 4 Besik Meurmishvili Official Pursuit Principle in the Georgian Law 1. Introduction History of creation and development of criminal pursuit, as of a procedural institute of the cri- minal law, is quite interesting. The mentioned procedural term with its form and meaning established nowadays and reflected in the Georgian science and the legislation, would certainly not exist in the old Georgian law. Establishment of this institute had to pass certain stages and use experience of many countries. At present, criminal pursuit is a complex of activities considered by the criminal legal pro- ceedings, which are implemented by the relevant state institutions to disclose a person who committed the offence.1 Criminal pursuit is directed against the person who committed the crime and it serves for protection of the public interest. From this side, it is very interesting to see if a similar institute of criminal pursuit or a state institution entitled to disclose and punish the criminal existed in the old Georgian law. A lot of interesting information is collected in some of the old Georgian law texts. Some notes about the "pursuit" are also mentioned in historical forms of Georgian legal proceedings. Historically, there were two different forms of pursuit known in the feudal state court procee- dings. The first of them was accusatory process, which existed in the feudal states during the Re- naissance period. The second was the criminal investigation or inquisitive process, which was charac- teristic for the later feudal period.2 In the 19th century, combination of the elements from the mentioned types of the forms of proceedings created the third type, which is called a mixed process.3 Criminal investigation process and civil lawsuits were implemented in the same manner. Each of the cases was a public dispute between a prosecutor and a defendant or a plaintiff and a respondent. Indictment proceedings were started by the initiative of a prosecutor. As for the court, it played a passive role and the scope of its activities was limited to the assessment of the parties’ according to the formal requirements of the law. The cases were conducted verbally. The parties had the equal procedural rights. It was their responsibility to collect and present the evidence. The parties were equally responsible at the court. The prosecution was usually presented by Assistant – Professor, Doctoral Student of the TSU Law Faculty. 1 Strogovich M.S., Criminal Law Process, Tbilisi, 1948, 104; Aabashidze G., Prosecutor as a Body of Criminal Law Pursuit (at the Investigation Stage), Tbilisi, 2011, 9 (in Georgian). 2 Lekveishvili M., Court Proceedings in East Georgia During 17th-18th Centuries, Tbilisi, 1963, 3 (in Georgian). 3 Vacheisjvili Al., Criminal Law Process, Abstracts from History of Criminal Law Proceedings, Part 1, Tbilisi, 1955, 30 (in Georgian). Besik Meurmishvili, Official Pursuit Principle in the Georgian Law the victim or his/her closest kin. Representation was not allowed due to the privacy of the process. The defense, with its modern meaning, did not exist. The prosecutor and the defendant were obliged to prove their truth with their speeches defined by the rule and the factual conditions. The silence of the defendant meant a recognition of the charge.4 When a struggle started for eradication of scattering and for strengthening the king’s gover- nance, the form of the pursuit proceeding was less corresponding to the idea of creation of a central state. For this reason the form of this process gradually changed into so call investigation, inquisitorial process, which soon became the dominant form. So called "official pursuit principle" was developed and "initiation of criminal law pursuit" became the prerogative of the state and not of a private body. With special civil servants, the state started initiation of criminal law proceedings; the investigation process, unlike the accusation process, rejected the competition principle; the legal proceedings became confidential and written. The parties did not have equal rights any more. The process was divided into two stages. The preliminary investigation, when the evidence was collected, got central importance. The judge, who was in charge of investigating the case, had unlimited rights. One more characteristic element of the investigation process was discussion of the case at a closed meeting and rejection of public announcement of the judgment. The first place among the evidence had an acknowledgement of guilt by the accused; it was called "the queen of the evidence". The investigation (inquisitorial) process knew three types of verdicts: "guilty", "not guilty" and "not proven" – leaving the accused suspected. The third type of verdict was taken when the court could not collect enough evidence to consider the defendant guilty or not guilty and the case remained undecided for a definite or indefinite period, until finding some new circumstances.5 As for the mixed type of the process, it was established on two different principles: a preliminary investigation – investigation basis and a hearing of the criminal case at the court – competition principle.6 Thus, the conduction of a legal case knew three forms of the process: accu- satory, investigation (the same as inquisitorial) and mixed processes. At the initial stage of deve- lopment of the law, criminal as well as civil cases were conducted directly by the court. At the later stage of the development, "public basis" was introduced by the criminal investigation (or inquisitorial) proceedings. New institutes - so called "official pursuit principle" and "preliminary investigation", which were necessary elements for strengthening the central government were established. The state bodies, which implement the mentioned functions, were being established. These bodies were considered as parts of the court or as an effective mechanism subordinated to the court control, which served for fighting against narrow feudal interests and strengthening the idea of the united government. From this point of view, the old Georgian law texts are not exception. They contain important information about the principle of "official pursuit". 4 Lekveishvili M., Court Proceedings in East Georgia During 17th-18th Centuries, Tbilisi, 1963, 3-4 (in Georgian). 5 Ibid., 6-8. 6 Vacheisjvili Al., Criminal Law Process, Abstracts from History of Criminal Law Proceedings, Tbilisi, 1955, 126; see more in: Strogovich M.S., Criminal Law Process, Tbilisi, 1948, 47-50 (in Georgian). 6 Journal of Law, #2, 2013 2. "Samparavtmedzeblo" – A Legal Investigation Institution as the Body Implementing the Pursuit The first source of the Georgian law, where the term "pursuit" is mentioned, is "The Deep of Renewal for the Land Possession and Inaccessibility to Giorgi III and Shiomgvimi" dated 1170.7 The mentioned deed mentions "Samparavt-Medzeblo" Court.8 This document states that "Samparavt- Medzeblo justice is implemented wherever it finds something stolen and kept by a peasant in his home. If someone has stolen several times, our Chenils will hang him, or prosecute him; and if he goes far away, our Chenils will chase him. Our thieves pursuers will take away what was stolen and establish the justice".9 This section of the deed clearly shows that in that period, in Georgia,
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