MIsan Journal of Comparative Legal Studies

دور محضر الجلسة في تصحيح بيانات الحكم ( دراسة مقارنة)

2024-07-13T21:13:39+00:00

The minutes of the session are a paper of the lawsuit, in which everything that takes place in the session is recorded, and testifies to the safety and validity of the procedures that take place in the lawsuit and completes the rest of the judicial papers, such as the judgment in some of the due and necessary data in it, and arranges many legal effects in the civil litigation, and has authority as an official paper with the data it contains, and the minutes of the session are important in completing the judgment data, Therefore, we will discuss the importance of the minutes of the hearing in completing the judgment's data

The Applications of Force Majeure in Islamic Sharia on Contracts (Comparative study)

2024-07-14T10:33:32+00:00

The aim of this study is to explore the applications of force majeure in Islamic jurisprudence, given its direct impact on contracts and financial transactions. Islamic jurisprudence was the first legal system to address force majeure with practical rulings, considering each of its rulings as a separate theory. Therefore, we will elucidate the applications in which Islamic jurisprudence has addressed force majeure, as well as those that do not fall under its purview, such as specific excuses, defects in the subject matter of a contract, and the impossibility of contract performance. We will also examine the applications in which force majeure has been addressed, such as currency exchange rate fluctuations, natural disasters, and general excuses. These rulings are sometimes in line with positive laws, as they can either decrease or increase the contractual obligations, a principle that is also applied in positive laws.The Civil Law of Iraq, for instance, explicitly allows for the reduction of excessively burdensome obligations to a reasonable extent if justice requires it, as stipulated in Article(146/2). The central question posed in this study is: What are the most important applications of force majeure in Islamic jurisprudence regarding contracts? The answer to this question is as follows: There are several applications of force majeure in Islamic jurisprudence that directly impact contracts, such as general excuses, the occurrence of natural disasters, and currency exchange rate fluctuations

The Iegal Basis For Criminalizing Normalization With The Zionist Entity (A Comparative Study)

2024-07-14T11:32:30+00:00

The legal basis for criminalizing normalization with the Zionist entity goes back to the Penal Code No. (111) of 1969, which criminalized normalization with the Zionist entity in the text of Article (201), and then a special law was issued criminalizing normalization with the Zionist entity No. (1) of 2022, and this is similar to The legal basis in the General Penal Code with the law criminalizing normalization with the occupying Zionist entity in the Penal Code, as most of the acts criminalized in the law criminalizing normalization were previously criminalized under the Penal Code, but they differed in terms of punishment, as the punishment in the Penal Code is harsher and more severe than the criminalization law. Normalization with the Zionist entity, and therefore the legal basis in the law criminalizing normalization differs from that in the Penal Code

Human Trafficking Crimes The crime of slavery as a model ((Comparative study

2024-07-15T16:57:53+00:00

That crime is a social phenomenon that we see has accompanied our human society since ancient times, and as a result has been infected in all its forms, and therefore it was necessary to emerge methods and means, in order to restore social balance, or alleviate the impact of turmoil and imbalance that affects the security and safety of society, so the penal law began criminalizing some forms of behavior to protect the core values in society, and with the development of society, and the passage of time and the need to legislate a new set of laws to keep pace with developments accompanied by a quantitative and qualitative rise in the proportions Crimes, on the one hand increased the number of crimes on the other hand crimes arose New, the criminal legislator has responded to the development that hit the role of the state, and despite the great role played by legislation in criminalizing improper behavior, and imposing penalties on its followers, but this policy is double-edged, as the large number of punitive provisions in the special penal laws, such as human trafficking legislation, terrorism, and others, lead to conflicting laws among themselves, and confuse the judicial arena with an endless torrent One of the texts, which sometimes led to conflict in judgments and instability in the selection of which texts are most useful in applying to disputes that are presented before the judiciary, this leads to prejudice to criminal justice, because the large number of laws kills the law ,Therefore, our study will be on the crime of human trafficking, in particular, and we will focus on the crime of slavery as a comparative study between Iraqi and Lebanese law

Constitutional Empowerment of Women in Iraq ( Comparative Study )

2024-07-15T17:05:56+00:00

This research aims to explain the constitutional legal organization of equality in women's rights granted to them and the extent of the Iraqi government's restriction to international conventions that have equalized between women and men away from discrimination experienced by developing countries, it has been shown through this study that the constitutions of the Republic of Iraq varied in the recognition of rights and freedoms for women between allowing and restricting, but in the end they responded to international requirements to allow women to obtain their rights, taking into account the restriction of Sharia and religion in the recognition of those rights, it turns out to be ours The relentless pursuit by the Iraqi state to allow women to participate in political life and obtain their rights with men

The legislative basis for criminalizing insulting religious symbols (A comparative study)

2024-07-15T17:13:05+00:00

This research deals with the constitutional and legal texts that represent a legislative basis for the crime of insulting religious symbols, as the legislative basis is of great importance for any crime or legal organization, as the existence of a direct or indirect constitutional text leads to the need for a legislative treatment of this crime as well as the inadmissibility of prejudice to the legal regulation of this crime by the legislator and the judge alike, This research also dealt with the legal basis of this crime by researching the texts of ordinary laws that regulated this crime directly or indirectly, in the Iraqi, Emirati and Egyptian laws

THE ROIE OF CAUSATION IN DETERMINING JURISDICTION (ACOMPARATIVE STUDY)

2024-07-15T17:36:08+00:00

Justification is considered one of the most important elements of the judicial ruling because it has an important role in protecting the parties to the administrative case, but it represents a sure guarantee for the tool of the Supreme Administrative Court in the work of judicial oversight. Therefore, justification is one of the most important elements that contribute to determining the competent court. The ruling issued to dismiss the administrative case for lack of Jurisdiction contains the factual and legal elements on which the court relied to dismiss the case for lack of jurisdiction. The judiciary also makes an effective contribution in addressing the problems faced by the judge in determining the competent court due to the legislator’s inability to distribute jurisdiction in an organized manner. Reasoning provides solutions in determining judicial jurisdiction through principles. Legal created by the judiciary

Compensation for the newborn resulting from artificial insemination (Comparative study

2024-07-16T09:46:43+00:00

The subject of the study is to what extent a newborn born from artificial fertilization is entitled to compensation for damages that befall him as a result of medical errors issued by the doctor or medical center concerned, the results of which appear after birth in multiple forms such as disability, deformity, or other diseases, and the reason for this lies in the multiple mechanisms of artificial fertilization. It varies with the diversity of devices, materials, and methods used in artificial fertilization in all its stages, from the beginning of obtaining male and female cells from the spouses and fertilizing them externally in the laboratory or via ICSI, preserving the fertilized egg, implanting the embryo, then pregnancy and birth. It is possible for medical errors to occur at all these stages and lead to... To harm the newborn, and this is considered a sufficient reason for the emergence of liability requiring compensation

The engagement of a woman in the Iddah Period in Islamic law and law (A Comparative Study)

2024-07-16T10:04:26+00:00

The Engagement is one of the preludes to marriage and is generally permissible at any time. It is by statement or insinuation. However, for a woman observing the iddah period, she has a privacy that is regulated by Islamic law in some detail and neglected by the law. According to the provisions of Islamic law, it is not permissible to propose marriage to a woman who is in the iddah period absolutely, whether the iddah period is due to death or divorce. As for the engagement as an insinuation, it is permissible for the woman whose husband has died. But it is not permissible for the woman in iddah period during a revocable divorce. There is a difference between permissibility and non-permissibility for a woman in waiting period following an irrevocable divorce

The extent of the administration’s authority to subsequently correct its administrative decisions (A comparative study)

2024-07-16T10:10:07+00:00

The general rule that governs the effectiveness of administrative precision is the rule of non-reference of administrative decisions in the past, as their impact on progress and the future continues without reverting to previous facts, as is assumed because the administration did not initiate legitimacy in every legal matter stripped of it, but it may ignore it and act contrary to the beginning and thus be stigmatized. Its actions are due to the defect of non-discrimination, or due to the defect of the partial ban or its measures, or due to its social cause and motives, and it may also cause some problems due to minor or major problems due to e-mail, so it has become the administration’s right, and even among the reasons for its defective improvement

The provisions of the administrative of E-Decision (A comparative study)

2024-07-16T10:15:57+00:00

In light of the great Technological development round the world in E-Programs and E-Systems, and digital transformation make the administrative entity keep up with such development. This occurred through inserting and using such systems and programs in the administrative system, and not following the traditional means only to promote to the public interest. This interest represented in their legal acts like issuing the administrative decisions. The Administrative decisions are considered on of the traditional means, so these entities attempt to the transfer or shift from the traditional means to the Electronic one. This can be represented in the modern means in the light of E-Administrative decisions due to the transferring from the traditional system to the E-System. The Administrative decision will aid the administrative entity to present its services in better way, faster and with low cost to the public. This issue, motivated most of the countries round the world to adopt the E-Government to complete all the required tasks recently. It is necessary to use the E-Administrative decision for its flexibility, developing, and comprehend all the updates in the administrative field. In addition to the mentioned above, it will reserve the ongoing of the public interest easily, and regularly

Invalidation of adversarial procedures as a result of fundamental and oral defects (a comparative study(

2024-07-16T10:23:15+00:00

Customs have settled on using the term invalidation in the dictionary of procedural principles, where invalidation is considered synonymous with the punishment or penalty of the Penal Code, meaning that they have the same meaning. Just as there is a text in the Penal Code that includes the phrase (there is no crime and no punishment except by a text), here too we can call invalidation as a penalty for failure. Regarding some of the procedures taken by opponents or arbitrators, the arbitrator does not rule on procedural invalidity unless there are reasons and motives calling for that. Either these reasons are fundamental that lead to invalidity or secondary reasons that result in penalties other than invalidity. It becomes clear that the importance of invalidation is that it does not result in only one stage in the dispute, but rather it accompanies it from the time of its procedures until the issuance of the arbitral award. Thus, the adversary’s procedures may be invalidated, or the arbitration award may be affected as a result of the invalidation of those procedures

The law applicable to branches of foreign oil companies in Iraq Comparative analytical study))

2024-07-16T10:30:40+00:00

Iraq is one of the oil-producing countries that occupies an advanced position among the Arab and international oil-producing countries due to its large reserves, but it lacks the components of the oil industry in terms of technical, technological and administrative expertise. Therefore, he sought the help of foreign oil companies specialized in this field through oil service contracts. However, the presence of these companies through affiliated branches within the territory of the Iraqi state has raised many legal problems, because these companies have a foreign nationality and a legal system that governs their formation, enjoyment of legal personality, and expiration, and at the same time they are subject to the legal system of the host state. Accordingly, we discussed in this research how to address these problems through analysis and comparison, to point out the shortcomings and loopholes that marred the system, and the research came to many conclusions and proposals

Material Error Before The Administrative Court (Comparative Study)

2024-07-16T10:36:00+00:00

The legislator paid attention to judicial rulings and decisions because they represent the title of truth when resolving any dispute, because of the protection they bear for the rights and freedoms established by the reality of the parties to the dispute, as these rulings work to stabilize the legal conditions in society, and to realize the role of the predominance of the judiciary in that. . However, these judicial rulings may suffer from some errors, including material errors (arithmetical or clerical) that do not fall within the subject matter of the decision and do not change its content, but the matter requires correction .

This study aims to clarify the legal provisions related to correcting the material errors contained in the decisions of the administrative courts, as it dealt with the concept of those errors and the statement of their nature, the legal system for them, and the conditions for the procedures for correcting them, until they are decided, according to what came in the Civil Procedure Law, which is the procedural law of the Law of the Council Country

The concept of disciplined sanctions in Iraqi and Lebanese law (A comparative study)

2024-07-16T10:41:11+00:00

It is know that the administration cannot work without the expressed Human will since then, legislation has paid great attention has paid great attention to the public employee and his legal situation perhaps the most important concern, of the public employee in this regard is the provision of job guaranteess, in cluding the quarantees associated with disciplinary Among its effect, the iraqi legislator was distinuished in this regard by providing a number of means trough wich the employee can get vid of disciplinary pen at ties and avoid their effect, in addition to the judicial methed represented by the obligatory grievance, the iraqi legislator adopted asystem of thanks and appreciation that removes the penalty, but com parative laws, in cluding lebanen remove this penalty trough the aspect of appeal before the state shura council, this letter has therefore produced many result and proposals that would avoid deficiencies in compartive Iraqi legislation

Humanitarian principles in armed conflict (A comparative study between Islamic Sharia and international law)

2024-07-16T10:54:01+00:00

The purpose of this research, as indicated by the title of the research, is to identify the legal and legal point of view on the subject of (humanitarian principles in war conflicts), as the humanitarian concepts of the legislators of international law and its protectors are mixed, as is evident from their defense and support for some of the criminal acts carried out by some countries. Influential powers such as the United States of America, Britain, and other axis powers in our contemporary world, as what was forbidden in international laws and constitutions, human rights organizations, the United Nations, and the Security Council, has become permissible, or kept silent about in their international forums, and this requires reconsidering the laws and protocols that were agreed upon. It was stipulated in the Geneva Convention in 1945, which prohibited and criminalized anyone who commits a criminal act that violates a human right or a human principle. Unfortunately, we have not found that these laws and constitutional articles have any effectiveness in armed conflicts and disputes in our present era

Invisible trademarks (olfactory trademark as a model) (Comparative legal study)

2024-07-16T11:07:42+00:00

This study sought to explain a new type of trademark, clarified its most important conditions, and allowed for a statement of the jurisprudential disagreement regarding the most important trademark, which is the olfactory trademark. This study attempted to draw the attention of the Arab legislator in general and the Iraqi legislator in particular to a new type of non-traditional trademark that has emerged in the arena. Trademarks should be understood and recognized in their technical and legal aspects.

This study proved that despite the hesitation of the Arab legislator to legally recognize a mark that cannot be visually recognized, including the olfactory trademark, the French and American legislators recognized the right of olfactory trademarks to legal protection under the trademark system, due to their increasing economic value

The penal policy of the Iraqi legislator towards the contributor to the crime (Comparative Study)

2024-07-16T11:19:59+00:00

Our penal legislator has taken legal equality in punishment between the perpetrator and the accomplice as a general principle. The responsibility of the accomplice in the crime is no less serious than the responsibility of the perpetrator، as the provisions of Article (50/Paragraph 1) of the Iraqi Penal Code stipulate that “everyone who contributes as perpetrator or “An accomplice in committing a crime shall be punished with the penalty prescribed for it unless the law stipulates otherwise.” On the basis of this text، the legislator determined the general rule in determining the penalty for shareholders، which is based on the fact that the assisting partner is subject to the same penalty as the perpetrator for the crime committed by him. It is also noted that our legislator Equality was established in a certain type of crime، which is terrorist crimes، whether the contributor is an actor or an accomplice، regardless of whether the participation was prior or contemporaneous with the commission of the crime. The judge is obligated to apply the text specific to the crime in the event of an accomplice participating with the perpetrator، and the provision it includes regarding punishment، where both limits are applied. The highest and lowest punishment، and if it includes preventive measures، then both of them impose those measures on him as long as they are subject to the same text، that is، the partner is punished with the same punishment as the perpetrator for the same crime، and part of the jurisprudence holds that punishing the accomplice with the same punishment as the perpetrator does not mean that they are equal in punishment، as equality in punishment is not what is meant by it. The punishment for the accomplice is equal to the punishment for the perpetrator. Rather، what is meant by this rule is for the accomplice to be subjected to the punishment stipulated in the article applicable to the perpetrator’s act. If the crime was a minor theft، the penalty shall not exceed five years’ imprisonment to which both the perpetrator and the accomplice are subject alike

Judicial adaptation of the penal rules and their application in the absence of criminal legislation for new crimes, Iraq as an model (A comparative study)

2024-07-16T11:29:22+00:00

Throughout history, as human societies have evolved, the types of crimes they face have also evolved. This has led to the adoption of laws and legislation aimed at reducing the negative effects of these crimes on individuals and societies. It is not forgotten that in the last decades of human history, technology has become dominant in all its forms, which has opened the door to new types of crimes that were never heard of before. These crimes can be committed within the state or be transnational. Criminals use high-tech expertise to achieve illicit goals, often evading any form of control. They target, according to their goals, the interests of individuals, institutions and countries, and exploit their ability to destroy evidence in order to escape punishment and continue their cybercrimes in another part of the world. In order to establish these advantages and complications, we find that most countries, including the Republic of Iraq, have not enacted a special law for this new type of crime, which necessitated the need for a legal solution to confront these new crimes and respond to them quickly, so it fell upon the judiciary to find this solution by adapting some rules. Legal law, whether in the Penal Code, or special laws with a penal element, to confront these crimes and impose criminal liability against their perpetrators

Trading and Investment in Cumulative Preferred Stocks (A Comparative Study)

2024-07-16T11:37:32+00:00

For summarizing the economic evolution of a joint-stock company, various types of shares are sought to attract investors' interest. Despite the equal obligation of shares in providing privileges, certain economic necessities may introduce specific shares in the company, granting owners distinct benefits compared to ordinary shareholders. Cumulative and preferred shares are examples, offering fixed rights unaffected by the company's financial status, with accrued dividends during financial delays. Understanding share types issued by joint-stock companies, such as cumulative shares, and distinguishing their characteristics from other financial securities, is crucial. This includes exploring limitations and trading procedures, distinguishing them from other preferred shares

The importance of the minutes of the hearing in correcting the judgment (AComparative Study(

2024-07-16T11:45:10+00:00