Peculiarities of the disposal of property owned by the Juvenile

Abstract

The continuous improvement of the legislation, especially when the issue concerns the disposal of the property owned by the juvenile, should be evaluated as an expression of public and private interests. After all, the well-being of each participant in the civil turnover, including juveniles, significantly depends on the perfection of the legal framework, the correct formation, and the implementation of which guarantees the stability and satisfaction of their interests. In modern legal systems, each subject of law should have the opportunity to analyze the norms and, as necessary, use the means of protection of the rights. Despite this, the substantive regulation of the issue in Georgia, as well as the provision of fast and accessible forms of solution to the issue in the relevant direction from the procedural point of view, remains a challenge.

Therefore, it is considered essential to improve the norms of the Civil Code of Georgia, which increases the risks of non-uniform interpretation of the norms related to the disposal of property owned by the juvenile. This significantly leads to eliminating both legislative gaps and indistinctness in practice. In addition, procedural legal regulation harmonized with international development trends about issues related to the disposal of juvenile property will significantly determine the proper functioning of the court system, contributing to the perfection of the system of the means of dispute resolution existing throughout the state.

Keywords: Legislation, family, court

Introduction

Legislation in any field of law is usually the result of the existing state policy about the relevant issue. It can be said that each issue regulated by law is administered based on its political and legal weight. In a specific period, the legislator responds to the actual legal problem by establishing legal mechanisms to protect the proper rights. However, the provisions of the law may allow different interpretations. The definition of legal norms is important in this process because it involves clarifying its content - to determine what the legislator has woven into it.[1]

After ratifying the Convention on the Rights of the Child on November 20, 1989, Georgia was obliged to provide the child with the protection and care necessary for his well-being. Actually, by adopting the mentioned Convention, the General Assembly of the United Nations put an end to almost ten years of discussion regarding the possible results of adopting the Convention and its positive aspects.[2] It has been noted that the state Parties to the Convention shall consider the rights and duties of the parents, representatives, or other responsible persons by law and shall take all appropriate legislative and administrative measures for this purpose (the second part of Article 3 of the Convention).

It should be noted that the convention contains the most general provisions about the protection of children’s rights and establishes goals but does not contain regulations about the mechanisms for enforcing the provisions.[3] Therefore, it is logical that the legislative framework of child protection existing throughout the state of Georgia has not been considered to be perfect until the Code on the Rights of the Child was adopted in 2019, which finally helped the process of forming a unified, systematic vision of the protection of child rights. By adopting the Code on the Rights of the Child, Georgia attempted to get closer to international approaches in the relevant field to harmonize the legislation with the relevant standards. A number of legislative changes have been made, including changes to the Civil Code, so that such actions would not or could not be carried out, which would create a substantial threat to the legal interests of a juvenile and, upon reaching the age of majority, she/he would be deprived of the opportunity to restore the violated rights.

According to the current regulations in Georgia, in civil legal relationships, a juvenile is also considered alongside a legally capable and effective person, who, taking into account certain peculiarities, can also participate in the relationships in civil turnover—the person having civil rights and duties. However, civil legislation offers a specific regulation about the issue, which is determined by maintaining the stability of the civil turnover. Despite that, the perfect functioning of the state-wide justice system in Georgia, from the point of view of protecting the property rights of juveniles, remains challenging. Despite the efforts to improve the civil legislation, it contains vagueness, which increases the risks of misinterpretation of the legislation theoretically and practically. Taking into account the relevance of the issue, the structure of the regulatory norms existing in the relevant direction is discussed in the paper. The correct perception of norms and proper application in judicial practice are discussed. It explains how the grounds for the disposal of the active estate owned by the juvenile should be perceived and what their legal aspects are. As a methodological basis of the paper, general scientific-historical and, special-normative and comparative legal research methods are used.

 1. Disposal of the property owned by the juvenile, as part of the unified system of the norms that require permission

From the point of view of civil law, in the legal systems of modern states, the issue of protection of property rights of the juvenile, at least at the level of theoretical declaration, takes an important place.[4] Today, it is recognized that a child has separate and independent property from his / her parents.[5] The need to act in accordance with the best interests of the child is a principle on which family relations are based. However, from a practical point of view, this principle is abstract and theoretical.[6] The mentioned connects psychoanalytics and public policy.[7]

It should be noted that the first part of Article 63 of the Civil Code of Georgia, from the time when the Civil Code of Georgia came into effect, indicated the need to consider the interest of a juvenile when concluding an agreement and linked the validity of the contract to the fact of getting benefits by the juvenile. The mentioned issue was determined by the decision of the juvenile’s legal representatives, which belonged to the subjective category. Therefore, considering only the relevant issue, making an objective and complete assessment was impossible. Vague, subjective, and general circumstances could be the circumstances that could be considered to have been beneficial for a juvenile. As a result of adopting the Code on Children’s Rights, the mentioned issue was regulated, and the need to match the agreement’s content with the juvenile’s best interests has been determined at the legislative level. And since 2020, the second part of Article 183 of the Civil Code of Georgia has been amended, according to which “An immovable thing owned by a child may be disposed of by his/her parent or other legal representative in the best interests of the child, based on the consent of the court”. So, based on the mentioned norm, the subject of judicial research is the determination of the circumstances if the alienation of the immovable object is derived from the child’s best interests.

Changes have also been made in the cases of concluding a contract regarding the movable materials. In Article 186 of the Civil Code of Georgia, it has been stipulated that the disposal of the movable object of a value of more than 1,000 GEL owned by a child, by his parent or other legal representatives, is possible only based on the approval of the court, taking into account the best interests of the child. In relation to the issue, it should be noted that the Civil Code of Georgia does not define the legal definition of the term movable object, unlike, for example, the German Civil Code, according to which “objects according to this law are considered to be only physical objects”. According to the opinion existing in the legal literature, objects are impersonal, divisible, subject to the domination of persons, separated by nature and physically united things.[8] Considering the above, if we interpret the specified norm of the Civil Code of Georgia in a literal sense, its effect should not be extended to assets worth more than 1000 GEL, which does not meet the definition of a movable object.

It should be emphasized that in practice, an interesting case of giving consent to the disposal of movable property of the juvenile is the disposal of the financial resources placed on the deposit. This type of case has been reviewed by the courts several times.[9] Although the legislation does not unequivocally require the presence of court approval for the mentioned issue, and the deposit/account does not belong to the category of movable property, in accordance to the practice established in Georgia in recent years, the presence of a court decision of the appropriate content is required by the banking institutions, to dispose of the financial resource existing on account of a juvenile. Accordingly, it is clear that the current edition of the norm does not reflect the content of its use in practice, and in fact, its definition is much broader.

Accordingly, as a result of the analysis of the article, it is determined that the legislator, to ensure the proper protection of the best interests of the child, extended judicial control to the cases of disposal of movable and immovable property and left the cases of the disposal of immaterial property beyond regulation. On the other hand, claims and rights belong to intangible assets (Article 152), the so-called “Incorporeal things”.[10] Prerequisites for recognition of the rights and claims as intangible properties (objects) are a. Turnability - possibility to transfer the active to other persons, b. Material usefulness, c. The right to demand something from another person.[11] It is important to state that, the disposal of the request or right owned by the juvenile by the parent may also interfere with his /her legal property interests.

Considering the above, it is possible to say that implementing legislative changes is deemed necessary. In particular, it is desirable to amend Article 186 of the Civil Code of Georgia and to the list of agreements subject to judicial control mentioned in the Civil Code of Georgia, add the disposal of the financial resource existing on the bank account/deposit, if the total amount of the financial resource on the deposit/account exceeds 1000 GEL; Also - disposal of another type of claim or right, if the amount of the claim or right exceeds 1000 GEL. This is necessary to eliminate the ambiguity regarding the definition of the article and the possibility of its possible misinterpretation.

2. The procedural side of the issue

According to the abovementioned, it is established that the issue of disposing of the property owned by a juvenile is considered a material legal basis of the requirements, which, in the presence of relevant factual circumstances, is followed by the necessity of court permission for such a transaction (disposal).

Therefore, a special procedural means could have been considered in Georgian legislation to resolve a material-legal issue of a similar nature. However, when applying to the court regarding the issue of the disposal of the property of the juvenile, no special norm regulating this relationship has been developed, which should be considered as a kind of legislative deficiency. Therefore, the practice has been formed as follows: as a rule, the norms established by the Code of Civil Procedure of Georgia are used in this direction, and the issue is considered through undisputed proceedings.

Accordingly, it is important to determine to what extent it is appropriate to transfer issues of the relevant content to the judge for consideration, taking into account that the timely and effective decision of the issues related to the disposal of the property owned by the juvenile has critical importance; In addition, it is also known that the Georgian justice system is overloaded and the procedural deadlines are significantly violated. Therefore, it is important to assess the issue; if it would be possible to delegate the relevant authority to consider the cases to another official, that would also complete the chain of justice and, to some extent, relieve the courts of this particular type of cases. This could be evaluated as an attempt to reduce the flow of court cases with adequate legal instruments that would ultimately improve the unified chain of justice operating throughout the state.

For example, German practice should be considered in this direction. It is worth noting that in Germany, the application for permission to dispose of the property of a juvenile is not considered by the judge but by the so-called “Rechtspfleger”.[12] This is a court employee who has a higher legal education, is employed in the justice system according to the established procedure. He/she does not represent a judge but has the competence of a delegated judge based on the legislation.[13] The establishment of a relevant legal institution in Germany has been caused by the fact that the judges have been overloaded with cases. With the instances having a complex nature, they had to consider many cases of a less complex nature. Therefore, from 1909, part of the judge’s powers have been transferred to the “Rechtspfleger”. This was first regulated based on administrative orders and then on a special law adopted in 1957. Today, representatives of the mentioned profession perform their activities independently and based on the law.[14] However, it is clear that they do not enjoy the same standards of independence established for judges.[15] In fact, they replace the judge in relation to the specific issues to be decided by the court. For example, in the field of family law, they consider the cases having the following content: about the appointment of a legal representative, establishing paternity, and discussing the issues related to adoption.[16] They consider cases related to the registration of property, real estate, and a number of commercial cases,[17] also – about the enforcement procedures.[18]

These officials are not assistants of the judge but work parallel to them and are responsible for making independent decisions regarding the cases within their competence.[19] An institution similar to the one mentioned also operates in Austria, where the powers of relevant officials are even wider.[20] Also: in Estonia, Poland, Czech Republic, Slovenia, Bosnia-Herzegovina,[21] Belgium, Finland, France, Hungary, Italy, Luxembourg, Spain, Sweden.[22]

In the states where this position has been introduced, it is considered an important contribution to the administration of justice. Although the scope of powers delegated varies in each state, as a rule, the approach to the following issues is uniform: 1. Cases of a specific content subordinated to the court are handed over to the mentioned officials for consideration. 2. Any person who wishes to work in the proper position must satisfy the criteria established by national legislation related to education and qualifications. It should also be emphasized that in 1995, a model statute was adopted in Spain to regulate the activities of relevant officials. [23]

Considering the above, introducing a similar status in the Georgian judicial system would be evaluated as a regulation harmonized with international development trends. It would significantly help the consideration of juvenile cases in court proceedings and contribute to overcoming the challenges in the judicial system. It will contribute to perfecting the judicial system and form an efficient and flexible one.

Timely resolution of the cases is important to the extent that justice that cannot be achieved within a reasonable period is unattainable.[24] Additionally, the question of access to justice, which has become relevant since the 60s of the last century, is still a subject of global discussion.[25] Among them, it is relevant in Georgia. Therefore, it would be a useful innovation to propose appropriate regulation. After all, private law should reflect and serve the implementation of public policy.[26]

Conclusion

Within the framework of the work, it has been confirmed that it is important to excel in the norms of the Civil Code of Georgia, which regulates the issue related to the disposal of property owned by juveniles. The issue is noteworthy both - from a substantive and procedural point of view. In the presence of an imperfect legal base in Georgia, the issue is subject to revision and analysis. Within the framework, it was determined that considering the unification process of law, it is relevant to excel the national legislation in the relevant direction. In addition, the law-making process should not be carried out by the automatic reception of any universal act in the mentioned field. It is necessary to analyze the existing reality in Georgia and consider the successful practices of other states. As a result of the mutual reconciliation of approaches, an adequate solution to the issue is offered. It is considered necessary to implement not episodic but fundamental legislative changes. This includes the reasoned convergence of the Georgian Law Institute and ensuring its compliance with the standards of leading democratic values-oriented legal systems.

In particular, it is desirable to amend Article 186 of the Civil Code of Georgia and to add to the list of the contracts subject to judicial control - the disposal of the financial resource on the bank account/deposit if the total amount of the money on the deposit/account exceeds 1000 GEL; Also - disposal of another type of claim or rights, if the amount of the claim or right exceeds 1000 GEL. This is necessary to eliminate the existing ambiguity regarding the definition of the article and the possibility of possible misinterpretation.

In addition, it is desirable that the category of the cases related to the disposal of the property of a juvenile should not be considered by judges, but in this direction, the practice of several European states should be taken into account, where the permission for the disposal of the property of a juvenile is considered by an official so-called “Rechtspfleger”.

Implementing the mentioned changes will enhance Georgian law and ensure its compliance with the standards of the leading democratic values-oriented legal systems. This will eliminate legislative gaps and ambiguities in practice.

Bibliography

Normative acts:

1. The civil procedure code of Georgia. https://www.matsne.gov.ge (In Georgian).


2. The civil code of Georgia. https://www.matsne.gov.ge (In Georgian). 

Scientific literature:

1. Burduli, I. (2020). For the issue of disposal of real estate owned by a juveline by a parent. Journal of Comparative Law.


2. Zoidze, B. (2003). Georgian civil law. Tbilisi.


3. Chanturia, L. (2011). Interdiction part of civil law. Tbilisi.


4. Khubua, G. (2015). Theory of Law. Tbilisi.


5. Jugheli, T. Makhatadze, N. 2023. Current challenges of the legislative regulation of the issue of juvenile property disposal. Tbilisi.


6. Albayrak, S. (2018). Freely Disposable Property of Child. Selcuk Universitesi Hukuk Fakultesi Dergisi.

1. Arkuszewska, A. (2012). Jurisdictional Status of the Polish Rechtspfleger. Annales Universitatis Apulensis Series Jurisprudentia.

8. Buxton, T. (2002). Foreign Solutions to the U.S. Pro Se Phenomenon. Case Western Reserve Journal of International Law.


9. Cappelletti, M., Garth, B. (1978). Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective. Buffalo Law Review.


10. Engle, E. (2011). The Convention on the Rights of the Child. Law journal QLR 29.


11. Fenge, H., Cramer-Frank B., Westphal Th. (1995). Remedies concerning Enforcement of Foreign Judgements. Legal Education and Training in Europe.


12. Freeman, M. (1997). The Best Interests of the Child? Is the Best Interests of the Child in the Best Interests of Children? International Journal of Law, Policy and the Family.

1. Holvast, N. (2014). Considering the Consequences of Increased Reliance on Judicial Assistants: A Study on Dutch Courts. International Journal of the Legal Profession.

14. Kapp, Th. (2009). A European Rechtspfleger for the European Union. International Journal for Court Administration.


15. Kappl, T. (2016). Strong Justice for a Strong Europe: A European Rechtspfleger. International Journal for Court Administration.


16. Leblanc, J. (1991). The Convention on the Rights of the Child - Current Legal Developments. Leiden Journal of International Law.


17. Ionescu, R. (2021). The Best Interests of the Child, Annals of “Dunarea de Jos”. University of Galati: Legal Science.


18. Oberhammer, P. (2006). Civil Enforcement in Austria. European Business Law Review.


19. Omerspahic, Z. (2018). Child Property Rights - A Child as a Shareholder. South East European Law Journal (See Law Journal).


20. Schack, H. (1993). Private Lawyers in Contemporary Society: Germany International Association of Legal Sciences Symposium: National Reports Case. Western Reserve Journal of International Law.


21. Singer, J. (2023). The Right to Have Property A Presumption of “Possible”. Texas A&M Law Review.


22. K. (2014). German Rechtspfleger. Germany.


23. Van der Weide, J. (2020). Remedies concerning Enforcement of Foreign Judgements. Common Market Law Review.

Footnotes

[1] Khubua, G. (2015). Theory of Law. Tbilisi. 149.

[2] Leblanc, J. (1991). The Convention on the Rights of the Child - Current Legal Developments, Leiden Journal of International Law. 281.

[3] Engle, E. (2011). The Convention on the Rights of the Child. Law journal QLR 29. 793.

[4] Omerspahic, Z. (2018). Child Property Rights - A Child as a Shareholder. South East European Law Journal (See Law Journal). 48.

[5] Albayrak, S. (2018). Freely Disposable Property of Child. Selcuk Universitesi Hukuk Fakultesi Dergisi. 444.

[6] Ionescu, R. (2021). The Best Interests of the Child, Annals of “Dunarea de Jos”. University of Galati: Legal Science. 79.

[7] Freeman, M. (1997). The Best Interests of the Child? Is the Best Interests of the Child in the Best Interests of Children? International Journal of Law, Policy and the Family. 360.

[8] Zoidze, B. (2003). Georgian civil law. Tbilisi, 26-28.

[9] Jugheli, T., Makhatadze, N. 2023. Current challenges of the legislative regulation of the issue of juvenile property disposal. 17.

[10] Zoidze, B. (2003). Georgian civil law. Tbilisi, 46.

[11] Chanturia, L. (2011). Interdiction part of civil law. Tbilisi. 54.

[12] Wirtschaftslexikon.gabler.de [25.12.2020]. Wolfsteiner in MünchKomm. zur ZPO. 6 Auf. 2020, §724 Rn. 21. See: Burduli, I. (2020). For the issue of disposal of real estate owned by a juveline by a parent. Journal of Comparative Law, 25.

[13] Burduli, I., (2020). For the issue of disposal of real estate owned by a juveline by a parent. Journal of Comparative Law. 21.

[14] Thomas, K. (2014). German Rechtspfleger. Germany, 2.

[15] Schack, H. (1993). Private Lawyers in Contemporary Society: Germany International Association of Legal Sciences Symposium: National Reports Case. Western Reserve Journal of International Law. 188.

[16] Kappl, T. (2016). Strong Justice for a Strong Europe: A European Rechtspfleger. International Journal for Court Administration. 1.

[17] Fenge, H., Cramer-Frank, B., Westphal, Th. (1995). Remedies concerning Enforcement of Foreign Judgements. Legal Education and Training in Europe. 108.

[18] Oberhammer, P. (2006). Civil Enforcement in Austria. European Business Law Review. 595.

[19] Holvast, N. (2014). Considering the Consequences of Increased Reliance on Judicial Assistants: A Study on Dutch Courts. International Journal of the Legal Profession. 39-60.

[20] Van der Weide, J.  (2020). Remedies concerning Enforcement of Foreign Judgements. Common Market Law Review. 610-611.

[21] Thomas, K. (2014). German Rechtspfleger. Germany. 16.

[22] Arkuszewska, A. (2012). Jurisdictional Status of the Polish Rechtspfleger. Annales Universitatis Apulensis Series Jurisprudentia. 7.

[23] Kapp, Th. (2009). A European Rechtspfleger for the European Union. International Journal for Court Administration. 61.

[24] Cappelletti, M., Garth, B. (1978). Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective. Buffalo Law Review. 190.

[25] Buxton, T. (2002). Foreign Solutions to the U.S. Pro Se Phenomenon. Case Western Reserve Journal of International Law. 103.

[26] Singer, J. (2023). The Right to Have Property A Presumption of “Possible”. Texas A&M Law Review. 716.