MIsan Journal of Comparative Legal Studies

Judicial Conciliation in the Civil Proceeding (A Comparative Study)

Hossam Abdel Mohamed Zaher — 2022-09-08

في الواقع إن المشرع العراقي قد اغفل عن التشريع نصوصآ قانونية تنظم إجراءات التوفيق القضائي في
الدعوى المدنية وتبسيط تلك الإجراءات للخصوم ، إذ لا يمكن للخصوم اللجوء إلى القضاء في كل صغيرة وكبيرة
، لان العقل والمصلحة يقتضيان اللجوء إلى طريق أفضل وأسرع لحسم النزاع بين الخصوم فالتوفيق القضائي
يتميز بالبساطة والسھولة والسرعة في الإجراءات والتخلص من السمات الشكلية في قانون المرافعات المدنية مما
يعطي الاطراف حرية التبادل في الآراء والوصول إلى حل شامل في نزاعاتھم ، فالمشرع لم يبين تعريف التوفيق
القضائي ولم يبين تلك الإجراءات القانونية التي يجب على الخصوم سلوكھا وكذلك لم يبين ما ھي الآثار القانونية
للتوفيق القضائي لذلك من الضروري دراسة ھذه الفكرة ومعالجتھا ضمن نظرية عامة ومشكلاتھا.

Legal controls of the holding company A comparative study))

hasan eulwan lafatuh hasan eulwan lafatuh — 2022-09-08

عرفت النظم القانونية انواع واوصاف متعددة من الشركات حيث أن هناك أدوات

وأساليب لتكوين هذا النوع من الشركات العالمية الا وهو الشركة القابضة بوصفها وسيلة للتكوين وهي شركة مساهمة عامة تقوم بالسيطرة المالية والادارية على شركة او شركات اخرى تدعى الشركات التابعة بنسبة 51% بامتلاكها بأكثر من نصف رأسمالها ويكون لها السيطرة على تأسيس مجلس الادارة وتقوم الشركة القابضة بتعيين ممثليها في مجالس ادارة الشركة التابعة بنسبة مساهمتها، ولا يحق لهذه الشركة أن تشترك في انتخاب بقيه اعضاء مجلس الشركة او هيئة المديرين حسب المقتضى الحالي وقد انصرفت الدراسات القانونية الحديثة في مختلف الدول إلى بحث هذه الظاهرة القانونية، نظراً للأهمية العلمية والعملية لهذا النوع من الشركات في الوقت الحاضر ، هذا وان لكل موضوع حدوده ومداه ونظراً الى خصوصية الموضوع من حيث انه يتناول النظام القانوني للشركة القابضة ، لذلك فأن خطة البحث تقع في مبحثين حيث تناولنا في المبحث الاول مفهوم الشركة القابضة وقد تم توزيع هذا المطلب الى فرعين الفرع الاول ماهية الشركة القابضة أما المبحث الثاني فيتناول القواعد الناظمة للشركة القابضة ، وتضمن المبحث الثاني إدارة الشركة القابضة وانقضائها ، وقد قسم المبحث الى مطلبين رئيسين ، المطلب الاول يتعلق في إدارة انشاء الشركة القابضة وتناول المطلب الثاني انقضاء الشركة القابضة وتصفيتها وختم البحث بخاتمة تضمنت أهم النتائج والتوصيات المتعلقة بموضوع البحث
الكلمات الافتتاحية : شركات, اندماج , استثمار

International Adopted Mechanisms to Assis Environmental Refugees (A Comparative Study)

Hiba Thahab Maw — 2020-01-01

The phenomenon of environmental asylum is a phenomenon that is very
common nowadays. It is increasing continuously and repeatedly. However, the
international community avoids admitting this phenomenon for political and economic
reasons. Since the international law does not of the environmental immigrants as
refugees, it is necessary to search for the reasons and jJustifications that lead them to
mislead the protection of public international law. Despite the absence of international
rules for environmental refugees, states as well as international governmental and nongovernmental organizations resort to certain mechanisms when natural disasters occur
in order to reduce their effects, including those adopted by states before the disaster
strikes, such as organizational preparedness, early warning, as well as providing shelter
and food…etc. These mechanisms directly affect the phenomenon of environmental
asylum positively because the ability of the state to manage the disasters and to
coordinate for relief operations provided for the victims will certainly reduce the
number of environmental refugees

Commentary on a Decision of Court of Cassation on the Formality of the Musatahah Contract A Comparative Study"

Wadad Wahib Lahumud — 2020-01-01

In this commentary, we address the presentation of the jurisprudence of the Court of
Cassation in its judgment numbered (268 in the year 2007), considering that the
Musataha contract (Usufruct )that was not registered in the Real Estate Registration
Department is a valid contract contrary to the provisions of the Real Estate Registration
Law No. 43 of 1971, as well as the Comparative Law which considers this contract to
be Aynyia and one of the formality contracts, for which it is required to be registered
in the Real Estate Registration Department, otherwise the contract is not considered
valid. If the Court of Cassation goes in the direction of attributing them to the
provisions of Civil Law No. (40) for the year 1951 amended, the existence of the
provisions of the Real Estate Registration Law stipulates that there is no doubt that the
(Usufruct) Musataha contract is a Formality contract, i.e. it must be registered with the
Real Estate Registration Department. It is noted that the Real Estate Registration Law
was issued after the provisions of the Civil Law were issued in terms of date.

Criminal confrontation Drugs and psychotropic substances (( Comparative study ))

Jaafar Shaker Ehsen — 2020-01-01

Criminal confrontation is to address unlawful acts related to narcotic drugs and
psychotropic substances by criminalizing them, and to tighten and mitigate criminal
confrontation based on the importance of the aggressed interests. Therefore, the
interests considered important to great in the legislation of criminal and punitive texts
related to any unlawful contact with narcotic drugs and psychotropic substances and
the identification of crimes was Terms of gravity Therefore, the confrontation differed
in terms of defining the crimes according to their gravity, where the legislator faced
some criminal behavior with intense confrontation, in order to classify those crimes in
terms of gravity as a felony, and this was discussed in the first demand and other crimes
that the legislator considered in terms of gravity as misdemeanors and the criminal
confrontation to face these crimes was reduced Observations were made about each
crime, the extent to which the criminal confrontation is consistent with the gravity of
the act and the extent of its prejudice to the perceived interests.

The Role of Green Taxes in Reducing Environmental Pollution in Iraq (A Comparative Study)

Zainab Abdul-Kadhim Hassan — 2020-01-01

It is known to all that taxes are one of the main resources of the state and an
important source of funding for the public budget, as well as its role in achieving
economic and social stability by redistributing income and reducing class differences
between various groups of society, in addition to its role in achieving political stability.
However, tax legislation is no longer limited to those traditional jobs or goals of the
tax, but the latter has become an additional role as an effective tool to confront the
dangers of environmental pollution resulting from economic development operations.
For the purpose of taking note of non-traditional goals of the tax and its role in
achieving what is called the green economy, we will separate the research on this
subject according to two independent section

Jurisdiction of the Court of the Administrative Justice to Censor Nationality Decisions (A Comparative Study)

Worood Lafta Mutair — 2020-01-01

Nationality is a legal and political bond that binds a person to a state, and the state is
free to regulate its nationality, but there are restrictions and considerations that limit
the authority of the state. The issuance of administrative decisions is the most important
aspect of the public authority’s privileges that the administration enjoys for the benefit
of individuals. However, this does not prevent the possibility of exposing the right to a
nationality for denial by the state or evidence contrary to the law. Therefore, the
legislator has to establish a fair balance that enables the administration to perform its
function on the one hand and to protect the rights of individuals on the other hand as
well as confirm or leave their membership of the state.
Judicial censorship of the legitimacy of the administration’s actions to verify that it
does not violate the law in matters of nationality represents a great position for reasons
including moral harm affecting the individual since depriving him of the state’s
nationality or forfeiting it from him without legal basis is considered material harm in
addition to moral harm, so the person rushes to the judiciary to dispute the
administration due to its action. The dispute is taken in the form of an appeal against
an administrative decision, a preliminary matter issue or an original or abstract case
that the person submits against the state to prove or deny nationality without the need
for an administrative decision from the administration. Consequently, it is necessary to
indicate the competent judicial authority in monitoring the issued decisions in matters
of nationality and to state the authenticity of the judgments issued therein

The Legal Nature for the Position of the Managing Director (A Comparative Study)

Dergham Fadel Hussein — 2020-01-01

The managing director plays a major role in the company as he undertakes the
completion of all necessary contracts conducts all necessary actions to achieve the
goals of the company stipulated in its founding contract. In spite of this importance,
the Iraqi Companies Act No. 21 of 1997 was devoid of any provision regulating the
legal status of the position of managing director despite the significance of this in
determining the legal basis for the managing director to be responsible for his mistakes
against the company and the partners as well as to determine the legal basis for the
accountability of the company against the third party for the actions of its managing
director. Therefore, this research is devoted to studying and analysing the most
important doctrinal views that have been said on this subject in order to provide the
Iraqi legislator with proposals to amend the legislative system in a way that ensures the
adoption of the perfect legal nature for the position of the managing director, and in a
manner that makes Iraqi legal system keep pace with modern legislative trends as far
as the subject of this research is concerned.

Judiciary Interference in the Formation of the Legislative Authority (A Comparative Study)

Farid Kareem Ali Hassoun Al-Shaibani — 2020-01-01

Abstract
It is evident to those who trace the Iraqi constitutional law after 2003, and
especially after the enactment of the 2005 constitution, that the issue of separation of
powers in Iraq has emerged more precisely from the previous stage, as it was
considered one of the important constitutional issues. However, within the framework
of this topic, there is another, more important issue which is the issue of preserving the
constitutional boundaries between the powers, and the non-interference between them
that may lead to the violation of the principle of separation of powers, and in particular
the supposed judiciary interference in he formation of the legislative power in the Iraqi
constitution. In other words, studying the problem of what are the limits of the judiciary
interference on the legislative power? In order to preserve and protect the independence
of each of them, and then not to interfere in the work of the other, the question that
arises in our topic is: does the judicial power exercise its competencies without limits,
controls, or specific restrictions; therefore, it interveres in the formation of the
legislative power? Or is it necessary to have certain limits and controls that ensure the
exercise of competencies within its proper legal framework in order to avoid political
conflicts with the legislative power, and to avoid a battle out of it, considering that
adhering to these controls is the best guarantor to establish the principle of legitimacy
and to secure it from strikes that may be exposed as a result of the extravagance of the
authorities in its competencies, and collision with other authorities. This problem will
be studied and answered through this research.

The Personal Right of Camp Residents in Picture Privacy"Comparative Study

Wissam Abdul Mohammed Zahir — 2020-01-01

Abstract
The 21st century has witnessed major invasions and violations, including what
happened in the Arab world in general, where wars led to displace their people, force
citizens to leave his home and search for a new home for security and peace. This calls
for the preservation of the personal rights of this citizen since it is not permissible to
intervene arbitrarily in the life of a human being who has left his country forcibly and
may not be photographed and posted pictures without permission, here it requires the
provision of civil protection for this human being.
Accordingly, the problem of the study is what is the right of privacy in picture? What
are the cases of abuses? What is the harm inflicted on this right? And how can it be
treated? To answer these questions, we relied on the analytical and comparative
approaches of making the rules of Iraqi, Egyptian and Jordanian civil law the subject
of analysis and comparison. The scope of the study is determined in accordance with
the theme of "the personal right of the camp residents in the picture privacy ", and so
it is divided into two sections. The first section deals with the historical origin of the
right of privacy and the second discusses compensation for the abuse on the right of
picture privacy of the camp residents. The researcher has found in the first section that
the historical origin of the right of privacy was not referred to by the majority of
legislations that was the subject of directly comparable. But the researcher has found
that within the right of privacy in general, and that this right was transferred to modern
legislations. The researcher has found that modern Egyptian civil legislation was better
than other comparative legislations since Egyptian legislation has stipulated that the
infringement procedures should be stopped in the future with compensation for the
victim. The researcher also found in the second section that all comparative laws have
taken the same path in claiming compensation in the case that the damage actually
occurred.

Disciplinary Punishment for A Policeman in Iraqi and Comparative Laws

Uday Sameer Haleem Al-Hassani — 2020-01-01

Most of the legislations in the countries have adopted the principle of the legitimacy of
disciplinary penalties, as the penalties were imposed on workers in security institutions
exclusively. These penalties were graded in severity from the lowest to the highest and
according to the severity of the violation through a disciplinary system. The latter is
not considered an arbitrary privilege for the administration; rather it is a set of
principles whose provisions are regulated by law. These principles are considered part
of the general principles in criminal law that jurisprudence and administrative judiciary
have made great efforts that had the creative role to adopt principles that are deemed a
constitution for disciplinary punishment. In case that they are not available, the
disciplinary decision is void. Consequently, this topic is dealt with through two
sections, the first deals with what disciplinary punishment is, and the second deals with
divisions of disciplinary punishment.