Ivane Javakhishvili Tbilisi State University Faculty of Law Journal of Law #1, 2012 UDC(uak) 34(051.2) s-216 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, 2013 ISSN 2233-3746 Table of Contents Marina Garishvili Characteristics of Ancient Rome Criminal Law Process ……………………………………………….5 Davit Bostoghanashvili Several Critical Comments on Views Stated in the Dissertation Work of Davit Chikvaidze "Church (Canon) Law Process" ……………………………………………………………………….23 Michael Bichia Object of Civil Legal Relations ………………………………………………………………………29 Irma Gelashvili Legal Status of Frozen Embryo ………………………………………………………………............ 50 Tamar Zoidze Payment of Damages, Caused by the Substandard Product in Court Practice of Georgia ………….. 80 Giorgi Makharoblishvili Remuneration and Insurance, as Legal Guarantee of Protection of Directors of Capital Companies against Responsibility …………………………………………………………………... 93 Natalia Motsonelidze Principle of Restitution in Kind (According to Georgian and German Civil Codes) ………...…… 116 Nata Sturua Disclosure of information causing property harm …………………………………………………...134 Akaki Kiria, Salome Kerashvili Mergers & Acquisitions (Legal Foundations) ………………………………………………………151 Sergi Jorbenadze Issuance of Public Information in Georgia …………………………………………………………. 175 Temur Tskitishvili Attempt of Result Qualified Threat Tort …………………………………………………………… 186 Bachana Jishkariani Economic Criminal Law and Its Significance for the Contemporary States on the Example of Germany ………………………………………………………………………... 215 Gvantsa Beselia Which Role Can Ethics Management Play in the Improvement of the Performance of Public Administration? What is the Relationship between Ethics and Law in this respect? ………………. 229 Tamar Zaalishvili Principle of Social State, Its Elements and the Human Right to Dignity – the Basis for Ensuring the Subsistence Minimum ………………………………………………….. 252 Levan Makharashvili Regionalism in Europe and in Georgia (Comparative legal analysis) ……………………………… 261 Ketevan Tskhadadze The Need for a Representatives Institution in Administrative Law ………………………………....278 4 Marina Garishvili* Characteristics of Ancient Rome Criminal Law Process I. Archaic Era Criminal Law Process in the Ancient Rome Law Development Criminal law process evolution clearly reflects the level of legal culture of the society with the State order, as the personal nature of responsibility in the previous history periods (talio – revenge, paying back, and compositio – payment in blood) was the indication of under- development of public-legal basics or its existence at the embryonic stage. The criminal law process was not characteristic, as an area of legal system, of the ancient period. In this regard the Rome criminal law process is not an exception and it was preceded at the initial stage by the primitive revenge and vindictive principles. The objective of the present work is to study the ancient Rome criminal law process evolution with the consideration of relevant stages of development in the State and legal systems of Rome. There is no relevant scientific study of Rome’s criminal law process in Georgian legal literature. Ancient Rome criminal law process, similar to the civil law processes, has gone through the several stages of evolution. Chronologically - archaic period of legal development (754- 367 yy before Christ), Rex (rexes) period in Roman State (754-510 yy before the Christ) and early republican period (510 – 367 yy before Christ). For the above discussed periods the legal actions for criminal cases were implemented at the Curiata assemblies (comitia curiata). The information on such assemblies are provided in the legislative acts from early republican period, namely: laws on provocatio ad populum and limits of administrative penalties (30 buffalos and 2 sheep) (lex Aternia Tarpeia) and, of course, - Leges duodecim tabularum (laws on twelve boards).1 The first part of commissional court processes was referred to as anquisitio (study, investigation) and considered the investigation carried out by the Magistrate. With the participation of informal citizens’ assembly the magistrate was clarifying the fact of conviction of the crimen (crime). In case of its verification, at the third sitting it would issue the decreta (decree) on guilt, which was * Associate Professor of the TSU Law Faculty. 1 Struve V.V. (Editor), Reading Book on the History of Ancient World. Rome, Moscow, "State Educational- Pedagogic Publishing House of the Ministry of Education of Russian Federation", 1953, 25-29; Kudinov O. A., Comments to the Origins of the Roman Law, Мoscow, Publishing and Trading Corporation "Dashkov Co.", 2009, 70-76; Bartoshek M., Roman Law. Notions, Terms, Definitions, Moscow, "Legal Literature", 1989, 183; Morev M. P., Roman Law. Text Book, 2nd Edition, Moscow, Publishing and Trading Corporation "Dashkov Co.", 2011, 551(in Russian). Marina Garishvili, Characteristics of Ancient Rome Criminal Law Process usually followed by the provocatio ad populum et rogatio2 procedure, which in the period of Rome republic considered the appeal of the citizen towards the public assembly of Centuria (comitia centuriata) on the decree issued by the magistrate in cases when the decree sentenced the guilty person to death and the citizen would appeal to Tribute public assembly (comitia tributa) – in cases when decree considered the payment of penalty. Hence, as a result of "provocatio ad populum" the criminal competence of the magistrates was limited with only the preliminary court- case processing. We are of the view that "provocatio ad populum" was not the legal way to appeal the sentence, but it was used as a political means of protest against the malfeasance from the officials. Ulpianus (Domicio Ulpianus) discusses in more detail the reasons and results of appellation in the first book on "Appeal", which states that "there is nobody who does not know how often and how necessary is to use the right to appeal, as it can indisputably correct the unjust results of lack of experience of the judge, although in some cases the correct decision can be changed to the worse – as the person who makes final decision does not always make better decision"(D.49.1.1).3 Ulpianus in the same work discusses, whose court decision can be appealed through appeal rule, namely: "can the rescript of the princeps be appealed if, for example, province prezzi or any other person approached for advice the princeps and due to such request the rescript has been issued? For example the question was raised: is there right for appeal? It is possible that in the approach for the advice the false data were provided. On the above problem there is a rescript from divine Pius, which was given to the community of Thacians, stating that such rescript can be appealed. The following words are used in the rescript: "if anybody approaches us and we provide with the answer in writing, the person can appeal the answer. As if he/she approves that the written answer was false and did not coincide with the truth, it will be considered that we have not expressed any preliminary position, as we answered the question, which was falsifying the circumstances and giving the other view" (D.49.1.1.1).4 In appeal process the Romans were determining specific requirements for the appealing party, namely Ulpianus indicated that "in the process of drafting appeal request, the following information must be indicated – who is applying for appeal, against whom is the appeal and which decision has to be reviewed via the appeal rule" (D.49.1.1.4).5 The claimant after the declaring the blame had to call (diem decree) the blamed person to the meeting of curiata (comitia curiata) during the pre-determined period of time. Then the defendant party should agree with the claimant the term (timing) for the appearance at "comitia 2 Bartoshek M., Roman Law. Notions, Terms, Definitions, Moscow, "Legal Literature", 1989, 265 (in Russian). 3 Digesta Iustiniani, Volume VII, Books XLIIIV-L, Kofanov L.L. (Responsible Editor), Moscow, "Statut", 2005, 223 (in Russian). 4 Ib. 5 Ib., 225. 6 Journal of Law, #1, 2012 curiata", where he would be presented the blame, and finally the defendant would be accused in front of the meeting which had the authority to make decision on the sentence. "Comitia curiata" made decisions on the sentence based on the free and direct perception of the justice without following of any formal norms. In our view, Romans were trying to limit the wilful act from the magistrate via the justice function of the "comitia curiata", but with the consideration of one circumstance: if the magistrate followed the general view of the citizens, the citizens, by participation in the justice process, - were demonstrating the unlimitedness of civil freedom. Only for the specific cases, instead of "comitia curiata" the justice process was carried out by so called "quaestiones extraordinariae" (extraordinary commission).6 German scientist T. Mommzen provides