MIsan Journal of Comparative Legal Studies 2023-07-24T06:01:29+00:00 أ.م.د.أميل جبار عاشور [email protected] Open Journal Systems <p>The journal was founded in 2020 under the name of Misan Journal for Comparative Legal Studies. Its function is to publish comparative legal studies and research. It is a refereed journal recognized by the Ministry of Higher Education and Scientific Research and is issued periodically in physical or electronic format, and it can be issued in both ways together. The journal publishes two issues per year and it is semi-annually. </p> Legislative Confrontation to the Crime of Water Pollution (Comparative Study) 2023-07-23T05:54:39+00:00 Ahmed Hassen Oraibi [email protected] Aqeel Aziz Oudah [email protected] <p>As a gift God give to humans and all other living creatures, water is regKarded the most important natural resource. Even though this necessary resource affected by different ways and forms of aggression. The most dangerous of them is pollution. Pollution causes effective changes in physical and chemical properties of water which, in effect, can be harmful to the health of all living creatures including humans. As a result of the global technical development, pollution has aggravated and increased that formed a clear and direct danger. It has harmful effects which can affect humans to the core. Because of that, most states, international committee and humanitarian organizations have faced this crisis.They have enacted laws that criminalize any act that pollutes the water. This research tries to clarify the position has been taken by Iraqi legislator toward this crime, and compare it with the Egypt and United Arab Emirates’ positions toward the same</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 Legal guarantees for the tasks of non-governmental organizations in the protection of human rights (A comparative study) 2023-07-23T06:05:07+00:00 Idris Abdullah Faisal [email protected] Muslim Taher Hassoun [email protected] <p>Legal guarantees for the tasks of non-governmental organizations in the protection of human rights are a key link in the chain of factors affecting the international, regional and national community. Which it adopts in achieving its goals and the methods used in the framework of human rights protection, in addition to that research on this topic will contribute to highlighting the role and importance of these organizations in the field of human rights protection at the international, regional and national levels</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 The Procedural Response to The Corona Virus Pandemic -A Comparative Study- 2023-07-23T06:16:27+00:00 Haider Ars Afen [email protected] Baraa Ahmed Khanjar [email protected] <p>The outbreak of the Corona virus epidemic led to a great halt in the manifestations of public life and posed a serious threat to public health It is necessary to take effective governmental measures towards this virus, protect societies, and provide all reasons to mitigate the effects of the disease and its repercussions on the public health of citizens, so the health authorities, in an attempt to address this pandemic, resorted to imposing a set of preventive measures and measures to protect and reduce as much as possible the risk of the outbreak of a virus pandemic&nbsp; Despite the restriction of the rights and freedoms of individuals characterized by these measures, they nevertheless contributed greatly to reducing the spread of the corona virus as much as possible</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 The legal center of arbitration centers in Iraq (a comparative study) 2023-07-23T06:27:06+00:00 Hussaln jabar lazim [email protected] hassan alwan lefta [email protected] <p>The developments in the field of international trade were the main reason for the emergence of a type of arbitration, which is institutional arbitration. The need has become urgent for the existence of an organized arbitration under which institutions are entrusted with the task of supervising and managing the arbitration process according to procedural rules established in advance by these institutions. The latter were called arbitration centers. As a result of the success of this experiment, arbitration centers and organizations have spread in most countries of the world.</p> <p>&nbsp;&nbsp;&nbsp;&nbsp; Recently, Iraq witnessed the establishment of a number of arbitration centers. Hence the search for the legal status of the arbitration centers in Iraq. In terms of the definition of these centers, the functions they perform and the legal basis for their establishment in Iraq. They opened as civil society organizations; this is due to the absence of a special law for the establishment of arbitration centers in Iraq, so the Iraqi NGO law represents the legal basis for its establishment. It arranged for her personal and financial rights, as well as obligations towards the state and private law persons dealing with these centers</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 Compensation of the accused for arbitrary arrest (Comparative study) 2023-07-23T06:44:02+00:00 Hussain Jassim Shati [email protected] <p>The arrest of persons is a serious procedure authorized by law during the investigation phase, if the interests of the investigation require such action to be taken in order to establish the truth. The risk lies in the fact that it directly affects and limits the freedoms of persons and prevents them from exercising their normal lives.</p> <p>Most notably, the legislation restricted the arrest to the judicial authorities, assuming competence, independence, impartiality and impartiality between the parties to the proceedings. While such safeguards were in place, the legislation did not prevent the arrest from being arbitrary, especially when investigating judges were overreacting in many cases that did not require arrest at all.</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Some judges may use the arrest procedure as a punitive measure, especially in cases of clan disputes, or quarrels between some neighbouring families. The judge argues that the arrest continues to force the disputants to reconcile with each other. In such a case, does he compensate the accused who has been arbitrarily arrested?</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 The Responsibility Of The Professional Partner In Accordance With The General Rules Of The From Taken For The Professional Company ((Comparative Legal Study)) 2023-07-23T07:22:32+00:00 Hawraa Saad Amean [email protected] Jaafer Kazem Jabr [email protected] <p>&nbsp;&nbsp;&nbsp;&nbsp; As a result of the difficulties facing individual work in terms of effort, time and financial costs, professionals tend to work collectively with each other within a legal framework represented by the professional company, where a group of professionals establish a professional company through which they practice their duties, hence the need for a legal organization that governs&nbsp; The professional partners work within this type of company, and it shows the limits of their responsibility within the professional company,&nbsp; The liability of the professional partner varies according to the form the company takes, as it is sometimes an absolute and unlimited liability towards the company and towards third parties, and at other times it is a limited liability and is limited to the amount of the partner’s contribution to the company’s capital</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 Legal subjectivity of the administrative surface contract A comparative study)) 2023-07-23T07:44:00+00:00 Dalia Jabbar Abdel Hassan [email protected] Alaa Nafeaa Katafa Al-Eidani [email protected] <p>The contract is one of the legal systems reached by the human mind, and it is a tool for the exchange of benefits and the transfer of funds, and an effective tool for the distribution of wealth, the exchange of services, and the development of resources. And to meet the needs of citizens, and to run public utilities, and this in turn requires that the administration enjoy a different position from what is familiar in private law, so what is known as the administrative contract appeared, and over time, the administrative contracts diversified until they became endless, and among these contracts, a contract appeared that gives the contractor from The administration has the right to create buildings and facilities on land belonging to the administration, which is called the administrative surface contract</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 Legal authentication to registered unregistered property a comparative study)) 2023-07-23T07:57:28+00:00 Ream Lazam Abed Omran [email protected] Ghani Resan Jader [email protected] <p>Real estate registration is on of the important issues on the&nbsp; legal level to its many practical applications in this era ,the essence of the research topic deals with the stages that real estate registration has gone through since ancient times until the present day ,man has known the idea of real estate registration since ancient in every era the disposal of land was subject to certain registration procedures aimed at establishing the right of ownership for its owners and protection dealing with it from fraud and deception ,the land was distributed among the families and the land was not transferable except after the approval of the individuals.</p> <p>And that the renewed registration of the property raises many questions the most important of which is the legal authentication of the stages of the unregistered property, as well as the legal&nbsp; authentication of the&nbsp; procedures for registering the unregistered in this time</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 Oversight of the formation of the administrative judge's self-confidence --A comparative study 2023-07-23T08:07:42+00:00 Zainab Saeed Jassim [email protected] Amer Zghair Mohaisen [email protected] <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The examination and study of the case’s evidence by the administrative judge results in a clear picture that draws in his mind and is closer to the presumptive truth, which leads him to issue a ruling in the case, and because the administrative judge’s conviction must be established philosophically and legally, so it was necessary to have a cover&nbsp; Legal works to provide adequate protection for the work of the administrative judge, and in order that the conviction of the administrative judge does not go away from the path of truth, it was necessary to have a higher authority working to monitor this conviction in order to guarantee the rights of the litigants in the case, and the effects it leaves appear through the reasoning of judicial rulings</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 The impact of legal incentives in encouraging foreign investment projects (Comparative study between the Iraqi and Kuwaiti laws) 2023-07-23T08:22:38+00:00 Sajjad Khaled Abdul Rahman [email protected] Ghaith Ayob Yousef [email protected] <p>&nbsp; &nbsp;&nbsp;Foreign investment plays an active role in developing the economies of countries and their resources and developing their capabilities. It is the focus of attention of many countries, especially developing ones, that seek to attract foreign investments to improve their economic environment and competitive position. The pursuit of attracting foreign investments is matched by the need for an appropriate legal environment for investors to establish their investment projects, through the existence of a legislative framework that regulates investment and gives incentives to investors. Therefore, countries have developed legislation that regulates the investment process that includes incentives for investors, and among those countries are Iraq and Kuwait</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 The Compelling Danger of Marine Rescue and Aids (A comparative Study in Course of Some Arab Laws and International agreements) 2023-07-23T08:42:53+00:00 Saddam Abdul-Hussein Rmeish [email protected] <p>The international and domestic legislation clarified the danger necessitating marine rescue and assistance by stipulating it in its legislation, and it included a statement of the conditions that must be met in the danger, whether they are general conditions represented in that the danger must be real and serious, and that it be possible and expected, and that there is a link between the emerging act For the sea and damage to goods or lives. In addition to the availability of special conditions represented in the fact that the danger must be of a degree of gravity and fall on a ship in the legal sense of it. The study also showed the degree and type of danger that must be available in order to be in front of rescue or sea assistance that requires a reward. Accordingly, we decided to study the issue of the compelling danger of marine rescue and assistance in accordance with Arab legislation and international agreements related to the subject of the study</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 Legal Department/ Center of the Ministry of Higher Education 2023-07-23T08:46:52+00:00 Dheyaa Mosleh Mahdi Saleh [email protected] <p>Most of the world’s constitutions adopt the principle of checks and balances between the legislative and the executive authorities and these checks and balances differ in quantity and quality based on the relationship between these authorities whether in society or in the environment surrounding the methods of governance and public office appointments.&nbsp;</p> <p>One of these methods of oversight by the legislative authority over the executive authority is the procedures and tools the legislative authority holds, and one of these procedures and tools is the questioning of the prime minister and his cabinet members to ensure they are accountable for the actions that fall within their remit. Questioning is one of these procedures and tools used by the parliament to perform its supervisory duties over the government as it implies the elements of accusation and accountability for the government actions, which indicates the relation between the questioning and vote of no confidence. This may lead to a vote of no confidence in the government or one of its members in case a violation was proven to have been committed by them and this can be defined as Political Ministerial Responsibility</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 The committees concerned with referring the public tender (Comparative study) 2023-07-23T09:25:29+00:00 Abdullah Ali Jabbar [email protected] Sadiq Muhammad Ali Al-Husseini [email protected] <p>The process of the administration concluding its contracts does not take place in the way in which individuals conclude their own contracts. Despite the powers and privileges that the administration enjoys, it is restricted in the contracting process by the specific procedures imposed on it by law in order to choose the contractor with it, and among the most important contracting procedures is The latter can only be done through committees. That is why the legislation regulating the contracts of government agencies required the latter, before approval, to form specialized committees that would take upon themselves the determination of the best bidder among the submitted bids in preparation for contracting with him</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 The difficulties facing the implementation of administrative decentralization in Iraq (Comparative study) 2023-07-23T09:31:46+00:00 Ammar Duair Falih [email protected] <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The difficulties facing the implementation of administrative decentralization in Iraq- Comparative study</p> <p>Dr. Ammar Duair Falih</p> <p>Within the framework of the democratic orientation and the reform of the administrative system in the new Iraq, and in order to provide basic services to the citizen in a smooth manner and without delay, and to ward off obstructive routines and reduce redundant episodes. Administrative decisions related to the implementation of projects and the provision of services closely related to the lives of the masses of citizens in the best possible way and at the available speed.</p> <p>To achieve this, it was necessary to adopt the framework of decentralization in administration as a constitutional principle in order to strengthen the role of local governments by rejecting hateful centralization, assigning local affairs that are embodied in the function of the service side, completing the management of daily affairs, organizing public life, and maintaining security, tranquility and order, at the internal level in local governments in the provinces.</p> <p>&nbsp;Therefore, at the internal level, the Law of Governorates Not Organized in a Region No. (21) of 2008 was issued and amended, and entered into force from the date of its issuance (published). In the Iraqi Gazette, issue dated 3/31/2008) based on the text of the second paragraph of Article 122 of the Constitution, which provides for the administration of governorates that are not organized in a region in accordance with the principle of administrative decentralization and the regulation of this matter by law.</p> <p>But with the application and practice, it became clear that the law suffers from many shortcomings and it is necessary to "extend the powers of local authorities and increase the financial resources of administrative units to enable them to manage their affairs." Accordingly, Law No. 21 of 2008 was amended three times (First Amendment No. 15 of 2008). 2010, Second Amendment No. 19 of 2013, Third Amendment No. 10 of 2018).</p> <p>Although the decentralization system in Iraq is legally organized and includes wide powers of local governments, which are not underestimated, so that the latter make real governments, the political will and other reasons prevented the implementation of administrative decentralization in Iraq properly.</p> <p>This is what prompted us to discuss the causes of this problem, foremost of which is the lack of agreement on granting the power to legislate laws to governorates that are not organized in a region</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 Procedural Provisions for Crimes of Electronic Extortion of Children through Social Media (A comparative study) 2023-07-23T09:44:55+00:00 Faisal Ghazi Muhammad [email protected] Ameel Jabbar Ashour [email protected] <p>Carry out legal or illegal action for one reason another the Iraqi legislature is passive in the face of laws to panish electronic and information crimes this situation has propted the Iraqi judiciary to make hse of same texts in the penal code to penalise the crimes but thes crimes which one committed on children are different because children are valnerable weak and ignorant there fore thes texts are not enough what is needed is new kind of strict texts to criminals electronic crimes against children</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 The legal system of the theory of certain science in Iraq (a comparative study) 2023-07-23T10:02:29+00:00 Mohammed Issa Kharbut [email protected] Amer Zghair Mohaisen [email protected] <p>The theory of certain knowledge replaces the official methods for announcing administrative decisions, as it plays the role of the primary purpose of the process of communicating administrative decisions, which is to obtain definitive knowledge of the person concerned with the administrative decision. He dealt with it in a way that is different from the way the French and Egyptian Councils of State dealt with it</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 Philosophy of speed in commercial law (A comparative study) 2023-07-23T10:12:37+00:00 Ishraq Sabah Sahib [email protected] Mohammed Majeed Kareem [email protected] <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Speed ​​is one of the original topics in commercial law, but it did not take its share of the research, despite its control over commercial work. Commercial work, and the position of the Iraqi legislator is paradoxical, He did not mention speed in the third article of the Trade Law, which was devoted to explaining the foundations on which trade is based, at a time when commercial jurisprudence is almost unanimously agreed that the reason for the existence of commercial law lies in the nature of business that is characterized by speed and succession, which makes civil law inappropriate for its ruling. On the other hand, the legislator stressed in some applications the need to follow speed, rather he used formulations that indicate his keenness to carry out the work in a great speed, such as saying “as fast as possible” and saying “immediately”, so this study comes to show the position of the Iraqi legislator regarding speed, and to determine The legal and economic basis and philosophy that led the legislator to adopt speed in this or that wor</p> 2023-07-23T00:00:00+00:00 Copyright (c) 2023 The disciplinary sanction in public position a comparative study 2023-07-24T05:32:02+00:00 Mohammed Muthar Yahya Albazzaz [email protected] <p>Since the public office is a national assignment and a social service whose duty is aimed at the public interest and the service of citizens in the light of the legal rules in force, therefore, the public office is not a privilege or domination of those in charge of its affairs, but rather it is a social service.&nbsp; In addition, it can raise criminal liability, hence the legislator’s intervention to organize the process of accountability of the employee through what is known as the disciplinary system in the public office, which is meant by the set of legal rules that regulate the process of holding the public employee accountable for his breach of his job duties in order to deter and reprimand him.</p> <p>These legal rules deal with defining the procedures followed in holding the employee accountable in a way that ensures that the authority is not abused against him by the administration, as well as defining the penalties that can be imposed on him, and indicating the authorities or authorities that have the right to impose them and specifying the competent authority to consider the appeals submitted against those penalties and ways to nullify them.&nbsp; .</p> <p>Therefore, our study, which is poisoned by disciplinary sanctions in the public office, came to explain various problems, including those related to the extent of the commitment of the disciplinary authority to the legal principles that govern the disciplinary penalty, and the extent to which it respects the guarantees granted to the penalized employee, and the legal consequences of the disciplinary penalty that are binding on both sides of the disciplinary relationship, the employee and the administration.&nbsp; Accordingly, the study was divided into three sections, the first was devoted to the concept of disciplinary punishment, by defining it and explaining its characteristics and the principles that govern it, while the second was devoted to the types of disciplinary sanctions in comparative law and Iraqi law by offering several criteria to classify them accordingly.&nbsp; While the third topic came to indicate the expiry of the disciplinary penalty</p> 2023-07-24T00:00:00+00:00 Copyright (c) 2023 The crime of workers insulting justice in the justice A comparative study)) 2023-07-24T05:39:56+00:00 Aqeel Aziz Odeh [email protected] Methaq Mosad Aziz [email protected] <p>The workers in the justice systems represent the judiciary and work in its name and for its account. It is very natural for them to be exposed more than others to risks when exercising the duties of public office, especially if we know that a number of these duties conflict with the interests of individuals and this conflict may lead to these people committing various attacks.&nbsp; Its types are imposed on workers in the justice services while they perform these duties or because of them, so most criminal legislation tended to provide the necessary criminal protection for them through the criminal texts in the Penal Code.</p> <p>&nbsp;&nbsp; And that the Iraqi Penal Code is one of these legislations that criminalize the crime of insult, as well as imposing a penalty on the perpetrators of this crime against workers in the justice services, because criminalizing this act leads to the achievement of the interest of society, even in an indirect way, and the interest of the workers themselves directly, meaning that this protection&nbsp; It enables them to perform their duties without violating them, as they work in one of the very important state facilities, which is the judiciary&nbsp;&nbsp; Facility</p> 2023-07-24T00:00:00+00:00 Copyright (c) 2023 Criminalizing racial discrimination in sports stadiums (A comparative study) 2023-07-24T05:48:08+00:00 NAJM ABED ADAB [email protected] <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Sport has important benefits in developing the fitness of young people, which affects their physical structure, in which the athlete can play games according to their sports and legal rules. To punish the perpetrators of the crime of racial discrimination, the texts of sports laws in some countries also included punitive texts for the perpetrators of racial discrimination, whose images are represented by color or religion or in the form of symbols and signs with a racial connotation. At the same time, the United Nations tried to invest its role in various sports activities in order to Promoting the values of peace and human rights in general, and combating racial discrimination in particular, through issuing agreements and resolutions that limit racial discrimination, and urging states to cooperate with intergovernmental organizations, and at the same time, international and regional sports federations issued laws emphasizing combating racial discrimination in ways that help Efforts to combat racism in various sporting events</p> 2023-07-24T00:00:00+00:00 Copyright (c) 2023 Legal capacity of autistic patients in commercial work A comparative study) 2023-07-24T05:53:28+00:00 Wadad Wahib Lahmoud [email protected] <p>&nbsp;&nbsp;&nbsp;&nbsp; Autism appears in the early stages of a person, i.e. in childhood, and this disease is often associated with mental retardation. Autism in all its forms is a disability, and it is called “autism disability.” It is a disability in mental development, resulting from a neurological defect in the brain.&nbsp; Therefore, our study was limited to the legal capacity of the autistic to undertake commercial work, through which we knew the autistic patient and his cases, some of which are severe, the autistic cannot direct any work, some of them are simple, he needs someone to take care of his affairs, and some of them are lighter than simple, so this person can rely on himself to some extent, This does not mean that he does not need help from others, especially in some legal actions, but in terms of legal provisions, the unauthorized minor autistic patient cannot engage in commercial work because he does not acquire this capacity due to his incompetence, and also the provisions of bankruptcy do not apply to him because bankruptcy is a system for merchants. And leading to the necessity of appointing a guardian over the minor to undertake the business on his behalf, because he is an autistic patient and is considered a person with special needs, so he needs someone to take care of his affairs</p> 2023-07-24T00:00:00+00:00 Copyright (c) 2023 Administrative bodies concerned with drug health protection in light of the Corona pandemic "Comparative study" 2023-07-24T05:57:45+00:00 Wisam Razaq Falih [email protected] <p><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong>The issue of public health is of great importance in society due to the spread of diseases and epidemics and the increase in their risks, and that medical health represents a basic requirement for every individual in society, and achieving it and upgrading it to the maximum extent possible is of great importance to preserving human health and life, so most countries have established Specialized administrative bodies entrusted with the task of achieving public health and protecting it from diseases and epidemics.&nbsp;&nbsp;&nbsp;&nbsp; Also, the function of the administrative bodies is one of the basic functions in the state, as it is entrusted with the task of protecting and maintaining public order and achieving community stability, by preserving public security, public health and public tranquility, and that the public health system at the current stage has become seriously threatened after the spread of many Diseases and the Corona pandemic (Covid-19), which spread in the world in a fierce and very rapid way in all countries of the world and claimed the lives of thousands of people, and due to the deterioration of the health situation and the increasing number of patients, most countries sought to organize administrative bodies specialized in protecting drug health at the central and local level It works to provide health and medicine requirements in an organized and appropriate manner for all citizens</p> 2023-07-24T00:00:00+00:00 Copyright (c) 2023 The role of the rules of attribution in applying the substantive rules of national origin to the international contract A comparative study 2023-07-24T06:01:29+00:00 Mayada Sabah Hassan [email protected] Fareed Haneen Jasim [email protected] <p>Objective rules are divided into two parts, including objective rules with an international source and objective rules with an internal source, and as far as the matter relates to our study of the last rules, where jurisprudence differed in the mechanism by which these rules are applied, are they applied by the judge before whom the dispute is presented directly without the need for the rules of attribution? They are rules that are not applied except by the rules of attribution or by using one of the rules of attribution, which is the will, and this is the prevailing trend</p> 2023-07-24T00:00:00+00:00 Copyright (c) 2023