Mission Statement

Fostering dialogue between Georgian and European legal communities and promotion of Georgia’s European aspirations through providing an expert overview of the important legal developments pertaining to the rule of law, human rights & democracy, free market economy, Europeanization of the legal culture & legal education, and the approximation of Georgian legislation with the European Union law.

GEORGIAN LAW JOURNAL

The periodical of the Georgian-Norwegian Rule of Law Association

VOLUME 3 ISSUE I 2019

1 June, 2019

Issue

This special issue of the Georgian Law Journal features the student essays from the second edition of Giorgi Margiani Annual Law Student Essay Competition held at the end of 2018. Our decision to run a special issue with student essays was determined by several factors. We were more than impressed by the pertinence of the topics chosen for the essays. Varying from

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articles

The Liberalization of Drug Policy and the Role of the Constitutional Court of Georgia in this Process

NIKA PIRVELASHVILI

Abstract

The main objective of this paper is to give the reader a general overview of the drug policy existing in Georgia and its negative results. This article will mostly cover the judgments of the Constitutional Court of Georgia which had a crucial impact on prompting the process of liberalization of drug policy. Also, there will be presented an experience of other countries and reports of international organizations regarding this topic. Thus, while analyzing abovementioned information within the scope of comparative, teleological and systematic methods, the necessity of liberalization of drug policy and its further positive effects on society will be underlined.

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The Issue of Consumers’ Food Safety: Comparative Legal Analysis

DAVID GVENETADZE

Abstract

Food safety is extremely important for human’s normal existence, since contaminated food evolves life-threatening conditions, such as widespread diseases,1 which are still a serious problem.2 Consequently, production risks forces states to provide food safety.3 In this respect, the World Health Organization’s data is crucially important, according which: Food causes over 200 diseases,4 one out of every ten men die from contaminated food, resulting in 420 000 deaths annually in the world; Food contamination affects economics and the society (reduces exports and tourism, lowers economic progress of states); Consumers’ awareness is essential for food safety, as they must make informed decisions and identify risks.5 As it seems, food safety significantly influences to the states public interests, consumers’ well-being and health. Therefore, it constantly maintains the actuality and according to new challenges, needs periodic research.
Based on the abovementioned, the aim of present article is to discuss consumers’ food safety issue; namely to review EU food legislation, analyze current challenges and precedents in this field; assess food safety standards and hazards in Georgia and finally to determine a way out from these challenges

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A Critical Comparison of Georgian Corporate Income Tax Model with theEU Analogues (Primarily the Estonian Model)

GIORGI TSAGURIA

Abstract

The changes that the CIT model adopted in 2016-17 was probably the most challenging in Georgian modern Tax Code, because it was solely based on the CIT of just one country – Estonia. Therefore, Georgian new CIT model, based on 2016-17 tax reform (GCITM) is almost unique and have a very poor practice in Georgia, as well as in Estonia. This fact also excludes observations of any court practice or of any other tax dispute platform effective in Georgia. Although the GCITM has important strengths, based on its practical usage – number of important mismatches have been detected and discussed in this article. Based on the restrictions of the format – only problematic/unclear issues related to GCITM are observed. The article also proposes ways to improve GCITM, mainly adopting the approaches used in Dutch and Estonian CIT models. This analysis is not related to the economic consequences, but to the incentives and legal logics.

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A Pig in a Poke: Tax Avoidance, Directors, Shareholders and a Company Life

AVTANDIL KUTCHAVA

Abstract

Variation of taxes and reducing them is the case when we need to be aware of some rules to stay away from jail and not to lose millions. While working on a specific transaction lawyers need to identify all the risks to clients and the company. So it is necessary to know the method of indication of risks. For example, the Supreme Court of Georgia has discussed the issue of liability of a director and a partner when they abuse tax reliefs. The aim of the present work is to research and detect the limit between tax avoidance and tax planning according to the decision of the Supreme Court of Georgia (6th May of 2015), also determine if there is enacted any kind of a special test by this decision. This includes liability of a company, its director and partners
when they use tax reliefs, also criminal liability of them and the risks that appear on the local market because of the explanation formed by the court. In order to reach the outlined aim perfectly, there are used the methods based on comparative analysis and synthesis, generalization, abstraction, analogy and system approach in the present work.

Pay less taxes as it is possible – of course this is a legitimate goal. According to the 94th article of the Georgian constitution the payment of taxes shall be obligatory in the amount and in accordance with a procedure established by law.1 In the organic law on economic liberty this wide issue turns specific: we read there that “the liberty is the main principle of the economic
policy that is expressed in a small government, responsible macroeconomic policy and low taxes”2. This means that if minimization is determined by law then it is possible to lobby with your taxes in such a way that allows you to undertake less tax obligation. Accordingly, the basic questions that shall be responded with the help of this research are:1. Can we reduce taxes and how? 2. What is the difference among tax evasion, tax avoidance and tax planning? 3. What does the principle of abuse of law mean in tax law? 4. Is there any test that indicates whether the specific case is about tax avoidance or tax planning? 5. What kind of liability lies with companies, directors and partners if they decide to reduce taxes? Who is responsible for a concrete action and what is this liability based on legally? 6. What shoud a director do when he can reduce taxes – act in favor of company’s interests and be under the risk of criminal liabliy or pay more and
be accountable to the partners personally? The three key forms (terms) – tax evasion, tax avoidance and tax planning are not defined well in Georgian legislation. For example, Tax evasion – here we come across the cases when violation is obvious: a person does not use a cash machine, carries out illegal accounting and, accordingly, directly breaks the law. In this case not only does the person have to pay basic amount, but also fine and penalty. At the same time criminal liability lies with him.
Tax avoidance is an intermediary element, here a company does not violate written law and obeys formal demands, but activation of an illegal structure/scheme causes the results that have not been intended by the legislator.4 So, in order to understand the will of the legislator which the specific relief is based on, we should use legal texts, its history and explanatory notes.Tax planning is when a taxpayer as a result of his legal actions reaches the aim of the legislator about enacting a certain relief and neither criminal nor administrative liability lies with him.5 At the moment when there are a lot of questions about the terms, Georgia does not have various judicial practice related to them. In Criminal Code of Georgia we meet a term “tax avoidance” in Georgian language and “evasion of taxes” in English language, so this leads to big problems on the local market. 6 If we take into account the amount that is enough for the action to be considered as a crime7, every potential case may be recognized as a crime. Accordingly, every director and/or a partner is a potential accused, if his decision is not considered by tax authorities as tax planning.

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An Indirect Purchaser as an Eligible Person to Claim the Cartel Damages

GIVI ADAMIA

Abstract

The key objective of this study was to investigate the legal status of the indirect purchaser of cartelized goods or services in the process of claiming the cartel damages. It is also to be mentioned that, there is not any perfect and complete substantive or procedural rules with respect to the cartel damages in Georgian Legislation. The article gives respective analysis of this issue and provides
recommendations to solve these legislative problems.

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