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Tariel Barseghyan about the Mistakes caused by One Word

Doctor of Law, Professor Emeritus of Law, 1990. The President of the Supreme Court of the Ra in 1990 Tariel Barseghyan is definitely in favor of amending the Civil Code. But in his opinion, it should be done by professionals. “If the legislation is dealt with by all those who have no idea of the Law alphabet, so we shall always stay in this state,” Mr. Barsegyan says. Legislative activity requires mathematics accuracy; a single word change can cause serious problems.

We talked about the amendments of the Civil Code, referred to the corruption risks in the judicial system, and then referred to the life and the family of the prominent lawyers Tariel Barsegyan. Iravaban.net  also touched a great number of issues in the interview with him in the framework of the new “Law Scholars” project

Mr. Barsegyan let’s talk about the civil law. What developments did it have during the years of the third Republic of Armenia?

During the years of the Third republic the Civil Code was adopted. It was circulated in 1998. Naturally, we could not have been led by the old code in the era of the market relations. It was necessary to adopt a legislation which regulates the economic relations in a new way. It was accepted, but needless haste prevented us from having a more perfect law. It’s true, in the beginning, when the new market relations were formed, the Code to a certain extent solved the problems, but currently there are so many shortcomings that hinder even to the market relations. Therefore, the need has arisen to modify or replace it. If we change the code as soon as possible, it will be benefit to the development of our society. The code has a lot of shortcomings, which we could not have noticed in the initially. If these gaps are eliminated, we shall have a rather successful legal instrument. Especially when we have the models of the Codes of Netherlands or Russia. There is space for work and to create. For example, when we were adopting the Code we never thought that we have a village, have farms and that the farmers need to create farmers co-operatives, however today the term “farming” is absolutely not included in our Code. Meanwhile, you can see yourself the place of agriculture and farming in market relations. And we must do everything to promote their creation so that they will have brand production. In addition, the issue of co-operative in the Civil Code is great confusion, and it must be corrected. The issues of the production co-operatives shall be regulated in the code so that the people should understand that it is not a collective farm, but an organization, which is created and have new qualities and have a lot of serious things to do. In fact, the Ministry of Justice is carrying out the activities of amendment of the Civil Code.  More than a dozen concepts have been developed and published. We are interested in your point of view on these changes. I have participated in all discussion that took place until the end of the last year. At the time I was Head of the Chair and ex officio obliged to participate in the discussions. Last year I resigned from the duties of the chair, reserving priority to the young faculty members and nearly all members are busy with the case. I am not aware of the new concepts as they were not provided to me. Anyway, I have extensive reports, reviews and articles about this Code, and I think that the concept developers have taken note of these comments. I can long about the code, very long, beginning from the first article and finishing with the last, presenting the shortcomings of each and how to correct the deficiencies. The Commission shall work very seriously.

Your courses include themes on business law as well. Is this branch of the law well regulated today to create favorable conditions for the business environment? 

I think it is not a branch of law, but rather a part of the civil law. It is part that develops much more dynamically than the civil rights. As such it is a part that does not contain formalism and does not consider the personal and individual qualities of the subjects, but it only has to deal with the regulation of the activities of entities that are engaged in the business. These are private businesses, which, unfortunately, our Code names with a wrong term and calls the “Entrepreneurs” and commercial legal entities. During these latest events on the “Turnover Tax” law, the people that came out into the streets were the individual entrepreneurs, the so-called small business. I’m not talking about large business; this law regulates the large business sphere as well. In short, everything that relates to the business is regulated by this law. However, we have gaps in the Civil Code, and these defects also apply to business relations. The First Article of the Civil Code also regulates relationships of the entrepreneurs and those with their participation, basically, these relationships are a separate group. Unlike most developed countries we have not accepted a separate Commercial Code, issuing from the principle of the monism of private law; their rules were included in the Civil law. At that time when we did not know how to handle this relationship within a single law we allowed a lot of errors and shortcomings. Thus, today I cannot say that our business relationships are well regulated. I shall mention only one article. Article two of the Civil Code reads: “Entrepreneurial activity is independent activity by a person conducted at its own risk pursuing as a basic purpose the extraction of profit from the use of property, sale of goods, doing work, or rendering of services.” There is only one thing missing, “regular” after the words “at risk” that is the word “regular” should have been written after the words “at risk”. In the absence of this word, we allowed a lot of mistakes. For one word, the Court of Cassation had to write a 3-4 pages of decision to clarify what we understand saying the business right, so that if a  man has bought a car and  a year after sold it is not subject to criminal liability for engaging in illegal activities. This is just one article quoted; I can recall numerous articles, individual laws. For example for example, we adopted three laws on joint stock companies, and four Bankruptcy laws, we are still thinking about the improvement of the law. Under the influence of the moment we accept legislative acts and after a trial period and when it passes inspection, we see that the law does not stand the test. Armenians have a good saying, “Give the flour to the baker, and let one bowel be spoiled. “If the legislation is dealt with by all those who have no idea of the Law alphabet, so we shall always stay in this state. It is necessary that legislation is dealt by the people who have legal education.”

In 1990, you were the President of the Supreme Court. What is your opinion about the RA Judicial System? How was it during your tenure and how is it now?

You know, whatever I say will seem subjective. However, I believe that our judicial system was in need of improvement, but its elimination was not appropriate. Only 5 countries among the 205 countries of the world do not have Supreme Courts. The remaining 200 have. Just this only fact proves that our country made a mistake. The court could have been upheld and improve the judicial system. Today a lot is spoken about two-tiered judicial system…

Especially in the framework of constitutional reforms.

Yes, at that time we had a two-level system, a four-level investigation format, and I am sure that errors were minimized. Why? Because the first instance case was reviewed by the Board of civil or criminal cases; in case of application it was reviewed in the presidency; and in case against officials of the Presidency, that is, in case of application to the Supreme Court and the prosecutor complaint it was considered ate the plenary sitting of 35 men. This four-stage sieve minimized the errors. Read the plenary Supreme Court decisions, they are still considered today, because they were the result of a collective mind and not the so-called precedent decisions but specific improved legal acts and comments on specific relations. I’m not saying that there are some mistakes or not, but nevertheless, I find that that judicial system needed to be improved, but it was better than the current one.

Corruption is a great defect of the judicial system. How was it in your days? Judging by your words, it was minimized because of the legal multilevel “sift”.  And what about its current level?

I am not involved in the judicial system as such, because I’m not in that system. If I was not there, would have been involved, but I have been in the system, and now I have come out, my words would be accepted greeted with hostility. No matter how much I want to be objective, however, they will say that I am biased, because I am not in the system, you praise yours and picks ours. That’s why I’m not doing it. And when I need I talk about it. A little while ago I said that the Court of Appeals provided clarification of the entrepreneur activities, moreover, it had no right to give such clarification, because Article 8 of the Civil Code does not allow any other interpretation than the literal interpretation.

Let’s speak about your personality, please tell about your family.

I have two children a daughter and a son. My daughter is elder. Both of them followed their father, no one chose the mother’s profession.

And what was the mother’s profession?

She was the graduate of biological faculty. I am a happy father for one simple reason, that I have two well educated children and the major part of this education is reserved to my late wife, because the man is very little engaged in the education issues of the children. Both my children have two children each. I have to mention that my grandchildren have chosen my profession as well.

In fact, the profession of lawyer is infectious.

You know, the profession itself is too exciting and prestigious. It has a big role worldwide. Moreover, it does not matter what area of law you are working in. And most importantly, it is the profession to support, if you’re a good lawyer.

What interests do you have in the field of literature? What books do you read in addition to professional literature?

In recent years, I almost do not read fiction, sometimes, when in a good mood I look through a Valiant Soldier Shveyk’s Adventures. I have forgotten how many times I looked through it.

What kind of music you like to listen to?

Classical music, I switch channels and listen to the Russian romances. The Armenian variety art as it is today is unacceptable for me. I can listen with great pleasure our former singers, but today’s shouts. I cannot listen this. I am not an expert musician and I do not ask to consider my opinion as a dogma, but today I do not find music of my taste in our Armenian art.

Let’s talk about work. Do you see interest of students to the law? Is it is growing or not?

The word studentship is very comprehensive. They are different; we have students who in my opinion do not come learn but to get a piece of paper. I do not consider them as students. But at the same time have talented students who listen to each word of the professor to sneak it and make their property. Working with such students is pleasure. You know that the seeds you sow will give fruits. The result is that our students achieve great success in foreign universities, in government agencies and play major role in the judicial system. It is worth to work as a lecturer for such students.

Last question, why did you choose this profession and have you changed your mind?

I did not choose this profession. The truth is that I wanted to become an architect. I did not apply immediately after school, for the simple reason that I needed to learn painting and drawing to enter the polytechnic institute. I joined the army, where a conversation took place between me and the Chinese Juan. Our political instructor major Makaradze called me and said that I have to enter the law school. It was news for me. I said that I was not ready or that. He created conditions for me to prepare. He even sent my documents to Yerevan State University and I entered. It was just in the first year that I realized that he was more right. So it became a lawyer, and have not regretted up to this day.

Iravaban.net

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