MIsan Journal of Comparative Legal Studies

The impact of partisan quotas on amending the Constitution of the Republic of Iraq 2005 comparative study

Adnan ajil Obaid — Sun, 18 Dec 2022 00:00:00 +0000

The researcher deals with the problem of amending the Constitution of the Republic of Iraq for the year 2005 and the obstacles related to the political reality related to the constitutional text, the most important of which is the method of partisan quotas.

The ruling parties divided power between them and were keen to circulate it even though the constitution did not address this. The obstacles to amending the 2005 constitution were linked to the beginnings of its founding and its dependence on the components and sects in its writing committee without the inclusion of elements of expertise and specialization.

We discussed the meaning of partisan quotas and its consistency with consensual democracy and its constitutionality, detailing the obstacles to the amendment of component representation in the amendments committee with the lapse of constitutional terms. We have developed suitable solutions to address the problem of modification. We hope that it will find its way to implementation

Crimes of sabotage and smuggling affecting foreign investment in Oil sites (Comparative Study)

Nasser Karimish Khader Aljorany, Hameed Yasir Raddad — Sun, 18 Dec 2022 00:00:00 +0000

Protection from sabotage and smuggling crimes affecting foreign investment in oil sites provides guarantees that investment projects are exposed to crimes that sabotage the national economy, whether their purpose is mere sabotage, terrorist purposes, or to prevent foreign investors from entering the country.

Providing protection from sabotage and smuggling crimes that affect foreign investment in oil sites is of great importance in preserving the national economy from attacking it, by providing the appropriate investment environment for foreign investors to enter the country, and then this leads to the recovery of the economy and the creation of different job opportunities for many segments, by punishing people who commit these serious crimes that affect foreign investment, whether this punishment is based on the general rules in the applicable Iraqi Penal Code, or what is contained in the special laws concerned with the issue of oil, gas and foreign investment, such as the effective law for the preservation of hydrocarbon wealth, the law against smuggling of oil and its derivatives, and the investment law for the liquidation of effective crude oil, from objective penalties that are imposed on the perpetrators of this type of crime of high danger to society, so that these measures lead to attracting foreign investments and taking all necessary measures. Legal procedures that also facilitate foreign investors, to the country.

The failure to provide this protection leads to the reluctance of investors to enter any country, fearing for their lives and their money that they throw to invest in the state. Usually, foreign investments inside the country provide large funds that are entered into the state, and increase the level of economic development, especially in countries that do not have the resources necessary for the purpose of investing their natural resources, or even the lack of trained employers in this subject

Iraqi Civil Code No. (40) of 1951 In light of the foundations on which it is based (a comparative study)

Mohammed Hanoun Jafar — Sun, 18 Dec 2022 00:00:00 +0000

raq was part of the Ottoman Empire, and it was subject to the provisions of this amputation of laws, so Iraq applied the Code of Justice sentences developed by a committee of religious scholars in Istanbul, which represented the most likely views in the Hannifin School, as it represents the civil law for him.

After the independence of Iraq and the formation of its national government after 1921, the government's efforts aimed at establishing a national Iraqi civil law. Therefore, three committees were set up for this purpose, one in 1933, the second in 1936, and the third in 1943. The last committee was made up of Abdul Razzaq Ahmad Al-Senhoury and the membership of Iraqi law professors and judges and government of the draft of the new civil law. And it's called (Iraqi Civil Code No. 40 of 1951.

That the research on the foundations of this law is the subject of this research, where we divided it into two sections, we devoted the first, to determine what is the Iraqi civil law, and our second specialist, to discuss the foundations on which this law was based

تطور السياسة العقابية بين الواقع والطموح العراق إنموذجا(دراسة مقارنة)

Mazen Khalaf Nasser, Ibrahim Jabbar Mansour — Sun, 18 Dec 2022 00:00:00 +0000

The state seeks to criminally protect public interests at three basic levels: the policy of criminalization, the policy of prevention and the policy of punishment, where the punitive policy is one of the most prominent elements that have received the attention of schools of thought in criminal policy, given the importance of the goals it seeks to achieve, represented in addition to public and private deterrence to protect Society and striving to reform the perpetrators by rehabilitating them and reintegrating them socially. There has been a great development in the punitive policy after the emergence of many schools of thought, which contributed to humanizing punishment and reforming the prisoner, especially the new social defense movement, which affected the concept of punishment by evaluating the purpose of punishment. Addressing the situation inside the penal institutions is based on the necessity of achieving human rights principles in accordance with international and regional agreements concluded in this framework

Procedural Guarantees for Online Arbitration ( A comparative study )

Ibrahim Khalil Khanjar Mousayi — Sun, 18 Dec 2022 00:00:00 +0000

Arbitration litigation does not take place in a temporal or spatial vacuum, but rather it starts from a specific center and geographic location in which the arbitration committee convenes and begins its functions, and this center is called the spatial scope of the arbitration and since the location of the venue itself is not sufficient to control the start and progress of the arbitration procedures, rather it is necessary to identify the plan These procedures are going on, so that they are the basis point from which the agreement or legal period is expressed, according to the time scale of the arbitration

In the light of electronic arbitration, the parties do not need to move to another country or a specific place to attend the arbitration sessions, but they can participate in the arbitration procedures, each of them in their home country, and since the electronic arbitration procedures go faster than the traditional arbitration procedures, because the Internet can provide a service to communicate and exchange documents and notes By direct electronic means, then the question arises whether the completion of all arbitration procedures in electronic form does not violate the basic principles of arbitration such as the principle of respect for defense rights and the principle of equality between the parties to the dispute and ensuring the confidentiality of sessions

(Legal nature of professional facilities) (A comparative study)

Rafah Karim Karbel, Asaad Musa Sakran — Mon, 05 Dec 2022 00:00:00 +0000

Determining the legal nature of professional facilities has great practical benefit, as by knowing the legal nature of professional facilities, we arrive at the law applicable to them, as well as knowledge of the judicial authority that handles the issue of resolving disputes that arise during the exercise of its functions, and that some legislations have considered professional facilities from people of public law , and therefore subject to the jurisdiction of the administrative judiciary, and others are considered private law persons and therefore subject to the jurisdiction of the ordinary judiciary and the other consequences of that

The role of Class action in intellectual property protection (A Comparative Study)

Itidal Abdalbaqi Yousif , Areej Muayad Abdulmunem — Mon, 05 Dec 2022 00:00:00 +0000

The issue of intellectual property protection is considered one of the important topics at the present time, and perhaps the judicial means are one of the effective means in this protection, and one of its applications is the class action lawsuit in some advanced legislation. A group of affected persons for the purpose of obtaining lump-sum compensation to be shared later; Perhaps the absence of Iraqi legislation from organizing this lawsuit is what prompted us to choose this topic as the title of our study, which consists of two parts, the first of which is to explain the concepts and conditions of the class action lawsuit, and the second is to explain the controls and effects of the class action lawsuit

Problematic of adaptation the Al-Istisnaa contract in Iraqi civil law (Acomparative study)

Ayad Kadhim Saadoon — Mon, 05 Dec 2022 00:00:00 +0000

One of the topics that are relevant in the industrial and commercial fields,especially after the great expansion that took place in them,is the subject of the istisna`a contract , as the scope of their activities expanded and became more projects basedon the idea of work, preparing the requirements of that work and delivering it completely, and thus the idea of adapting this contract mixed between being a contract a work or a contracting contract, as the contractmay entail a transfer of ownership of the manufactured thing, and the transfer may need a certain formality at the time . Renting and contracting the matter that made it difficult to adapt this contract, and the same is true of Muslim judges who also differed in its adaptation between the sale or lease contract or considering it a complex contract, and in order for this contract to play its role in regulating the relationships arising from it in clear legal way, it is necessary to state the opinion of jurists the law and law regarding it

Assignment of the public employee in the legislation Republic of Iraq and the Gulf countries (A comparative study)

Mon, 05 Dec 2022 00:00:00 +0000

This research which includes a study of public employee delegation is one of the important topics in Iraqi legislation and Arab Gulf states. Public employee delegation means that the employee performs another job in the same or another government side with keeping his job degree. Delegation is one of the temporary modes which was used in the administrative legislation and custom by using administrative decree from the legal authority to run it in regularity and to meet the administrative activity needs of the authority that the employee is delegated, and achieving the public interest and rehabilitation the employee staff and development of their experiences and qualifications. In Iraqi legislation, the law of civil service No. 24 in 1960 doesn't have decrees that regulate employee delegation on the contrary of the Arab Gulf states which organized decrees of delegation in the laws of public service and other special laws

The doctor's tort responsibility for organ transplantation and transplantation and its relationship to child abduction "An analytical study"

ABDELRAZEK WAHBA SAYEAHMED MOHAMED — Mon, 05 Dec 2022 00:00:00 +0000

This research dealt with the tort responsibility for the transfer and transplantation of organs among the living and its relationship to the crime of child abduction, where we have explained the concept of child abduction and the tort responsibility of the doctor for the transfer and transplantation of organs in violation of the legislation and regulations followed in this regard and the impact of this responsibility. In light of this, the research concluded with a set of recommendations, including that kidnapping is to move the child from his place, detain him in another place and control him, and this leads to raising the doctor’s negligent responsibility when he extracts the organs from the kidnapped child and his obligation to compensate for the damages inflicted on him. As a result, we concluded with a set of recommendations, including that the age of childhood should be determined, the position of the Algerian legislator on the process of organ transplantation should be determined if one of the spouses is a foreigner, and educating the public about the risks of organ transplantation and transfer

The administration uses the judge to apply the penalty for example: Iraq, Egypt, France (a comparative legal study)

Hayder Abdulnabi Tooly — Mon, 05 Dec 2022 00:00:00 +0000

Decision-making in implementing an executive action decision, it acts on its own responsibility, confrontation and assets, and in order to avoid these solutions, and the best solutions sometimes come to the judge, as - and generally - the administration uses its privilege in direct concession in order to interpret the implementation of its contracts with its contractors and suppliers, and raises the dispute before The contract judge, on the basis that there is no principle to object to the contract, on the basis that there is no principle to object on the basis that she can ask her judge, its amounts and size, she must choose the procedure she prefers, more appropriate to the general facility and less risky, and does not allow You so

Iraq's rights to maritime navigation according to the Khor Abdullah Agreement and its international implications (A comparative study)

Ali Abd AL- Hussin Jarallah — Mon, 05 Dec 2022 00:00:00 +0000

The issue of defining borders is one of the important issues that take great interest in countries in general, as this issue played an important role between Iraq and Kuwait, as the nature of relations between the two countries witnessed tension and attraction in the past, which finally ended with Iraq’s occupation of Kuwait in 1990, and as a result a threat to international peace and security and the intervention of The United Nations, through the Security Council, which in turn issued many resolutions in accordance with the provisions of Chapter VII of the charter of the organization above, perhaps the most prominent of which are Resolution 687 of 1991, Resolution 773 of 1992 and Resolution 883 of 1993, according to which the borders between the two countries were demarcated، And that the Khor Abdullah agreement came to regulate maritime navigation between the two countries in this strategic navigational corridor of Iraq, in which it overlooks the Arabian Gulf. From this agreement we will deal with it in this research

Objective confrontation of domestic violence crimes A comparative study))

Zuhair Rashid Aziz, Ameel Jabbar Ashour — Mon, 05 Dec 2022 00:00:00 +0000

The phenomenon of domestic violence has spread dangerously in our Arab society, especially in the Iraqi society, due to the social and cultural conditions, as well as the economic conditions represented by poverty and unemployment, which led to a large number of domestic violence crimes, Therefore, research on the topic of objective confrontation of domestic violence crimes is of great importance, as it is based mainly on the need to deal with this topic in particular because it is one of the sensitive topics Which related to the most important nucleus of society, which is the family, and despite that, the legal legislation has dealt with this phenomenon, but this treatment was incomplete and needs a lot of amendment to address the defect in legal legislation and Special Iraqi Penal Laws

Alqawaeid Alnaazimat Lisuqut Aldaewaa Almadania (Dirasat Muqarana)

غني ريسان جادر , زهراء عبد الكريم عبد الحسين سبع — Mon, 05 Dec 2022 00:00:00 +0000

For every lawsuit, there must be rules regulating its procedures, leading to a decisive ruling on its subject matter, or its end with the issuance of a decision without ruling on its subject matter, because the law sets a set of rules that must be followed by the parties to the case and the competent court at the same time in order to achieve the public interest, including It includes the notification procedures and the documents that the lawsuit petition must include, because Contrary to that, the penalty for the fall of the civil lawsuit, which the Iraqi legislator called null and void by the Jordanian legislator, and in order to guarantee the defendant’s right, he had to follow these rules, taking into account the implications of them

The effect of administrative licensing on criminal liability for chemical leakage (A comparative study)

Aqeel Aziz awdh , Ghusen Mnahi KHyoon — Mon, 05 Dec 2022 00:00:00 +0000

It has become clear through this research that the legislation related to the protection from the leakage of chemicals is based on a set of principles, among which is that this legislation is a means of regulating and developing security, taking into account international obligations to lay the necessary foundations for this. Practicing chemical activity and leaving the details of these practices regulated by the regulations and instructions issued by the competent authority for administrative licensing in the extent that criminal responsibility for the leakage of chemicals has been achieved.

It is therefore not considered an administrative license. As justification for chemically polluting the environment. Chemicals may not be used. Or work in it in any capacity whatsoever, or establish, operate or manage any industrial facility except after obtaining the necessary license for that. Administrative licenses do not constitute a reason to justify the commission of an offense of diversion of chemical substances, unless otherwise provided in the criminalization text, even if the judiciary sometimes avoids this reason unless the criminal text establishing the offense allows exemption from criminal responsibility. These licenses are issued by the competent authority to prevent the leakage of chemicals when granting licenses, the most important of which is the purpose of using these chemicals, their location and movements, and the protection of workers in particular, as well as the protection of people. And the environment from the effects and dangers of chemical spills

The legal framework for the protection of international rivers the Tigris and Euphrates as a model for a study in public international law and Iraqi legislation

Hala Ahmed Mohamed — Mon, 05 Dec 2022 00:00:00 +0000

Water resources are among the most important sources of the marine environment, as the development that man has reached at the scientific and technological level and the success he has achieved in discovering alternatives to different, multiple and wide fields, but he did not find any alternative to water. On the other hand of this great importance, we find that water resources are limited And its increase is never consistent with the huge population increase that the world is witnessing, and the danger

Giving the authority to propose amending the Constitution of Iraq of 2005 to the Speaker of the House of Representatives, as is the case with the President of the Republic of Iraq

Hind Ali Muhammad — Mon, 05 Dec 2022 00:00:00 +0000

Every political community has a specific constitution, which is considered to be the general law in the state, which includes rules and provisions that regulate how the authorities operate in the state by setting general laws in the state that in turn guarantee the rights and freedoms of individuals, and this is in accordance with the principle of legality that ensures the protection of rights and freedoms. That when the state establishes its constitution, it sets it according to what is commensurate with the history and customs of society. Therefore, it always seeks to make constitutional amendments in a manner consistent with the nature of economic, social and political conditions in the country, in order to achieve the best interest of the citizen. The purpose of the amendment is the participation of all segments of society in carrying out the reforms that accompany the state, that every constitution may provide for specific procedures or special procedures in the process of amending the constitution, some constitutions may give the Speaker of Parliament the right to constitutional amendment in a manner that suits the state and the people and to give the Speaker of Parliament the power to be the administrative head of the House and the true representative of Not giving the authority to amend the Iraqi constitution to the President of the Iraqi Council of Representatives is an extremely dangerous matter. This issue must be reconsidered by giving the right to the President of the Iraqi Parliament in the matter of amending the Iraqi Constitution of 2005

Offences against the right to juvenile safety A comparative study

YASIR AWAD SHABAN — Mon, 05 Dec 2022 00:00:00 +0000

Child safety needs to criminal protections. child can not defend himself before he is characterized as a child such as the embryo. Also, child is weak, and he needs protection after its birth, starts crawling, standing on his legs, and walking with difficulty. Child requires family's name and health protection such as providing her the necessary vaccines in its childhood stage. Child should educate by his family under the law

Obligations of the parties in the event of ship stranding In international waterways

Maher Al-Saeed Muhammad Gbr, Ghaith Ayoub Youssef Saleh — Mon, 05 Dec 2022 00:00:00 +0000

The research included two chapters, in which, through the introduction, the importance of the research was clarified. The two researchers were interested in the issue of ship stranding in the Suez Canal and its disruption as a vital and important navigation passage linking the East and West of the world, explaining that any defect or disturbance related to the canal passage has a severe impact on the traffic in it. Causing many problems with regard to the movement of global trade, so what happened from the delinquency of the Panamanian ship Ever Given in the width of the canal, causing its closure, leaving behind more than 400 ships stuck in the canal, inflicting heavy losses on the transport and shipping sector in the world, not to mention the high prices in the markets as a result of the arrival of Shipments are late, and also as a result of high transportation costs, which will raise many problems related to the obligations of the parties to the transport contract, and who is responsible for compensation for The damages caused by this dangerous event. As for the research problem, it was embodied in the complexity and overlapping of relations between the parties that were damaged as a result of the stranding of the Panamanian ship, and thus also the difficulty of determining the obligations of the parties, and who is responsible for compensating these damages. Or the Ever Given Company that operates it, or the Bernard Shawkat Ship Management Company, which handles the technical management of the ship, all of these questions need to be answered accurately, which exposes us to many difficulties

The State Council has addressed the flaws in the legislative and administrative system based on its authority specified in the law (A comparative study)

Mitras Hashem Sayhood — Mon, 05 Dec 2022 00:00:00 +0000

It is known that the Council of State is the advisor to the administration and the judge of its disputes, as the Council exercises these two functions on an almost daily basis. It settles administrative disputes and provides legal opinions and advice. The council’s advanced activity allows it to monitor negative phenomena at the legislative and administrative levels. Nevertheless, it remains restricted in dealing with cases before it by issuing a ruling or submitting a fatwa. However, it does not have the right to take a decision to address the previous phenomena from their roots. Because if he did that, he would have interfered with the work of other authorities, and this is prohibited for him according to the principle of separation of powers.
For this reason, the legislator has created a means to ensure a measure of reconciliation between the aforementioned principle and the council’s intervention in the administrative or legislative field, and that is through the periodic report that it addresses to public authorities and public opinion annually, as this report includes what judgments, fatwas or research show of negative phenomena At the legislative and administrative levels, with the aim of alerting the necessary reforms. In addition to the above, the report is of great importance, as it carries preventive dimensions as it represents a manifestation of cooperation between the judicial and advisory functions of the State Council on the one hand, and between it and the executive and legislative authorities, on the other. Therefore, the benefit of this topic is achieved by directing attention to this small and important part, to make it the subject of our current research

Philosophy of speed in commercial law (A comparative study)

Ishraq Sabah Sahib, Mohammed Majeed Kareem — Mon, 05 Dec 2022 00:00:00 +0000

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 work

Legal guarantees of pension rights for presidents of administrative units (A comparative study)

Waleed Khashan Zghair , Marwa Attia Atti — Mon, 05 Dec 2022 00:00:00 +0000

The president of the administrative unit is one of the most important people working in state institutions, and that importance is due to the activity he undertakes, which is managing the public facility and organizing the affairs of its administrative unit in various aspects, which contribute to the renaissance of society and the advancement of its members, so we find that the research topic focused on protecting their pension rights in terms of Providing legal guarantees for them, as the research dealt with the issue of objecting to the pension rights before the Board of Audit of the Pensioners’ Cases and the statement of the mechanism of forming the board and the procedures followed before it with an indication of the nature of the decisions issued by it. and the litigation procedures followed before it

The power to establish the political responsibility of government in parliamentary systems (A comparative study)

منتظر صبيح داود — Mon, 05 Dec 2022 00:00:00 +0000

Countries with parliamentary systems are characterized by the effective performance of the oversight system over the performance of the democratically elected government. This oversight role is basically committed to parliament along with its legislative function. The need for a large parliamentary majority to establish it, and the oversight tools are not limited to the representatives of the people (Parliament) in moving political responsibility during the government’s exercise of its executive role, but the government itself can be among the bodies that move that responsibility before Parliament, at the beginning of its formation or during its assumption of the reins of actual power. And when it senses political responsibility as a precautionary measure against withdrawing confidence from it, this is by offering confidence in its government program to obtain a parliamentary license by granting confidence in it from the start, or by offering confidence in its actions or executive performance at a certain stage of the government in order to obtain the confidence of Parliament Renew your confidence

The constitutional foundation of the principle of citizenship ( A comparative study)

Mohammed Hussein Jassim — Mon, 05 Dec 2022 00:00:00 +0000

The principle of citizenship expresses the nature of the organic relationship that binds the individual to the homeland in which he acquires his nationality, and the rights and duties imposed by this relationship as stipulated in constitutional and legislative texts.

The Constitution regulates the scope of citizenship rights and duties, as the rights of the citizen are regulated under the provisions of the Constitution, including civil, political, social and cultural rights..

However, activating the citizen's enjoyment of his rights and his carrying out his duties and responsibilities stipulated in the constitution, requires that there be effective and guarantor constitutional mechanisms for the enforcement of these rights and the fulfillment of duties. These mechanisms are embodied in the principles of equality and participation