TIKRIT UNIVERSITY JOURNAL FOR RIGHTS

Abstract. :Violations of the sanctity of private life have become widespread through modern technologies, including hologram technology, as this technology has caused the disclosure of secrets and personal information of some people, especially those famous scientifically, artistically, or in the world of commerce and finance, and has caused damage to their reputation and social, personal and financial status. From this standpoint, the idea of research came in order to establish the legal basis for protecting this right and to determine the nature of the responsibility arising from its violation and the mechanism for compensating it to redress the damages resulting from it.

Abstract: This research examines the penalty for liability in construction contracts. This contract is considered a form of insurance in general and liability insurance in particular. Legislators in both Iraq and Lebanon have not provided specific provisions for this contract. Therefore, we must refer to the general provisions stipulated by the legislator regarding insurance in Iraqi Civil Law No. 40 of 1951 and the guarantee contract in the Lebanese Code of Obligations and Contracts of 1932. This type of insurance pertains to construction contracts. Considering that insurance is a contingent contract, its purpose is to insure against the risk that befalls the building subject to the contract. The contractor enters into a liability insurance contract with the insurer, who undertakes to cover the risk, redress the damage, and compensate the affected third party. This relieves the contractor of the burden of liability towards third parties.

Abstract. : The origin of the loan contract is that the borrower returns to the lender the same amount and description as he borrowed, and that the lender does not receive any benefit from the borrower outside of the loan contract, even if the latter is not of the same type as the borrowed money. However, in reality, it often happens that the lender recovers from the borrower money that is greater in amount than the borrowed money or better in quality, whether the recovery is based on a contractual condition or custom or without them. The borrower may also take an action that takes the form of compensation or donation for the benefit of the lender based on a contractual condition or without a condition. The diversity of forms of increase when returning the loan and the difference in its provisions constituted an incentive for us to research its provisions in Islamic jurisprudence and law in order to clarify the extent of the agreement between the texts of the law and Islamic law related to some forms of that increase organized legislatively in compliance with the provisions of the Iraqi Constitution in force for the year 2005, which prohibited the enactment of any legislation that conflicts with the constants of Islam and to propose treatments in places where this agreement is absent, in addition to investigating the ruling on its forms that are not organized legislatively. In Islamic jurisprudence, by reviewing the opinions of Muslim jurists regarding each of its forms, with the aim of giving preference to the opinion that most achieves justice and is most consistent with the texts of Sharia and law, and proposing its codification within the folds of the loan contract texts contained in Iraqi Civil Law No. 40 of 1951.

Abstract. :Leasing common property is considered one of the important legal matters related to partnership, as it requires taking into account the rights and obligations of the partners. The concept of common property refers to money that is jointly owned by several partners, such as real estate or other property. When one of the partners independently rents common property without the approval of the others This raises many legal provisions, as in some legal systems, a partner must obtain the approval of the other partners before taking this step, as leasing could affect their rights, and each partner has the right to object to leasing the common property if this is not obtained. Their consent.

Abstract :Deficient performance is the debtor's incomplete implementation of his obligation as a result of his negligence and failure to fulfill his obligation, or the two parties to the obligation agree to amend the obligation with their consent, which results in multiple options available to the creditor in demanding compulsory specific implementation in completing the deficient performance or repairing the defect in it, or accepting partial performance without objection, and the debtor is considered to have fulfilled his obligation to the extent that he has implemented it, reducing the creditor's obligation with his right to claim compensation for damages resulting from the deficient performance, and this is what results in the difference in the legal nature of deficient performance, and accordingly we will divide this research into two sections, as for the first section we will discuss the concept of deficient performance, and as for the section it will be for the nature of deficient performance and its effects.

Abstract: The great development witnessed by the world in the field of construction and building and the rise in the housing crisis as well as the rise in prices in residential buildings, which increased the difficulties of purchasing these buildings, which led to the diversity of types of contracts concluded to purchase residential units still under constructio and pay them in a periodic manner paid on specific dates, and this was the result of the government\'s inability to provide safe housing for citizens, which prompted the private sector through investment to build residential complexes and sell them to citizens, and this is done by concluding investment contracts between the investor and the National Investment Authority and granting an investment license.

Abstract :Commercial competition can play an important role in the economic life of countries, provided that this competition remains within its legitimate framework. Whereas the Iraqi legislator has pledged to draw up a new economic policy for the legislative system, at a time when many factors have overlapped in commercial activities, which has made commercial competition affected - in terms of its legitimacy - by various factors, the effectiveness of which is not limited to local markets but extends to international markets. This has prompted us to expand the discussion within the limits of our study to discuss the means of achieving unfair competition internationally in the first section, and in the second section on the provisions of civil liability for unfair competition internationally.

Abstract : Forensic linguistics is a science based on the study of written texts related to crimes and legal disputes or issues related to the language of criminal law and its clarity. Forensic linguistics is used in the field of drafting special criminal laws. It can be said that forensic linguistics represents the spirit of special criminal law texts, and that they are written in criminal linguistics, analyzed and resorted to. Special criminal laws are the means of the legislator in the Kurdistan Region - Iraq to organize its own interests or to confront the rapid changes that affect the values and essential interests of society. It is found that the Iraqi constitutional legislator addressed the issue of forensic linguistics directly, as the legislator stipulated in Article (Fourth) of the 2005 Constitution that "the Arabic language and the Kurdish language are the two official languages of Iraq." It is also found that the legislator in the Kurdistan Region of Iraq allocated Articles (4 to 6) within (Chapter Three) under the title (Language of the Law and Courts) of the Official Languages Law in the Kurdistan Region - Iraq No. 6 of 2014 for this matter.
Thus, it is found that what is meant by legislative reform is one of the main methods for reforming laws by canceling them, creating new laws, and merging laws. Despite this, we find that there are problems related to the controls of criminal linguistics for drafting special criminal laws in Iraq and the Kurdistan Region, which are represented by the legislator not avoiding the passive voice, not using the conjunction (and) and (or) carefully, not avoiding grammatical and inflectional errors, separating related words, avoiding the use of padding, digression, and verbosity, brevity, using legal phrases, and using punctuation marks correctly.
Regarding the issue of criminal linguistics and its relationship to the translation of special criminal laws, it is found that the legislator resorts to translation in order to take the term or concept and implant it in his criminal legislative system, but in some cases, translation is a reason for the fluctuation of criminal linguistics in special criminal laws and thus spoils the criminal legislative system and disrupts the issue of legislative reform. Among the most prominent cases of fluctuation of criminal linguistics in special criminal laws: unstable translation, the uselessness of the borrowing method, and in the same context, it is found that correct translation is considered one of the factors of stability of criminal linguistics in special criminal laws in the region, and it has a fundamental role in legislative reform, and this is achieved through: good choice of term, success in finding the term in the borrowed language.

© 2023 TUJR, College of Law, Tikrit University

Abstract: Banks have a great responsibility in the field of preventing money laundering, as it is the first step through which the crime passes. Therefore, they must be careful and attentive in this area and cut off criminals. Banks may find themselves partners in the crime without their knowledge, due to lack of attention and failure to take risks and appropriate measures. Failure to follow a financial and banking policy that addresses this crime before it occurs, in addition to training its employees and developing their capabilities on financing methods and the tricks and tricks of those with illegal income.

Abstract :There are no jurisprudential studies that address the issue of an illegal immigrant residing in the country to which they have migrated and becoming involved in disputes that require a legal framework to govern such conflicts. Despite entering the country illegally, this immigrant is often treated similarly to a foreigner who has entered the territory legally, with some exceptions. The laws that should be applied to disputes involving this immigrant have been reviewed, but there are certain aspects that the Iraqi legislator should have addressed by specifying the applicable law. Leaving this matter to the discretion of jurisprudence and the judiciary does not lead to achieving justice. The recommendations that should be considered by the legislator to reach the most appropriate laws governing disputes involving illegal immigrants have been outlined.

Abstract: Modern legislation and international conventions have been concerned with establishing the principle of equality between men and women in the field of rights and obligations, and preventing all forms of discrimination against women, including the permanent Iraqi constitution of 2005, where the principle of equality between men and women is enshrined in Article (18/second) of it, which stipulates: "Everyone born to an Iraqi father or an Iraqi mother is considered Iraqi, and this is regulated by law." Accordingly, the Iraqi Nationality Law No. 26 of 2006 embodies this legislative trend by following legal principles in the foundations of imposing, acquiring, losing and recovering Iraqi nationality, and it has expanded the role of women in it. And it does not include in the regulation some of the effects of equality between the father and mother in the foundations of imposing the original Iraqi nationality, for example, the conflict between the text of Article (3) and Article (4) of the same law and the mechanism for its lifting, or the effect of (acquisition, loss, or recovery). The mother has Iraqi nationality over the nationality of her immature children, especially if they were those on whom Iraqi nationality was imposed on the basis of her Iraqi nationality. In addition to the existence of some texts that the legislator singled out for women and did not include only repetitive provisions that the legislator had previously touched upon among other articles, such as the fact that the Iraqi nationality shall not lapse from the one who acquired the nationality of her husband unless she declares in writing her desire to renounce the Iraqi nationality. For all this, the Legal Center for Women was chosen in the Iraqi Nationality Law No. 26 of 2006 as a title for this research in order to shed light on the distinguished role of women in light of the new principles in the law in force in comparison with the provisions of the repealed law and some Arab laws, as well as to determine the extent to which legal texts are accurate and keep pace with this Legislative development to ensure accurate regulation of the effects of equality between the father and mother in the opportunities for imposing, acquiring, losing and reclaiming Iraqi nationality, and its impact on the nationality of their children who are not of majority age.

Abstract :With the acquisition of the draft Civil Damages Law of 2017, can this implementation project be at the level of the Civil Law for Civil Damages? The draft is also the first thing presented by the Ministry of Justice after the reform that was carried out with the Contract Law and Public Order and the proof of partial obligations for some drinks, and in fact the integration of the concept of profitable misconduct and the civil fine into the French Civil Code in the future.Which will respond with a fundamental change to the “reform” and “punish” functions of civil liability, by imposing a civil fine in the event that profitable misconduct occurs, as the civil liability law reform legislator provides an effective treatment for the phenomenon of profitable error, and the foundational elements of profitable misconduct and the penalties commensurate with illicit profit are the strengths of this legal system,Because the former makes it possible to determine the scope of the civil fine while the latter hinders any hope that the perpetrator (perpetrator of profitable misconduct) has of retaining the profit he has obtained.© 2023 TUJR, College of Law, Tikrit University

Abstract :The preamble is the introductory section of any international treaty, and it serves as an introduction that explains the basic goals and principles that led the parties to conclude the agreement. Although it is not part of the legally binding texts, it is considered an important part of the structure of the treaty. The preamble does not create direct legal obligations on the parties, but it indirectly affects the interpretation of the executive texts. It is an essential tool for achieving harmony between the parties and enhancing cooperation to achieve the common goals of the treaty. The strength of the preamble varies from one treaty to another according to the purpose of the treaty and the context for which it was concluded. Some treaties whose preambles include binding and clear provisions, including the Preamble to the Charter of the United Nations of 1945, which refers to the determination to save future generations from the scourge of war and affirms human rights and respect for the rules of international law. The Paris Climate Agreement of 2015, for example, included in its preamble the commitment of states to address climate change and promote sustainable development. The preamble plays a crucial interpretive role in interpreting the executive texts of the treaty in the event of ambiguity or dispute. When the preamble comes in a complex and incomprehensible style, the parties are forced to interpret its content. Moreover, the preamble enhances commitment to universal principles and contributes to supporting the international legitimacy of the treaty. Thanks to these functions, the preamble is considered an essential part that contributes to enhancing the effectiveness of treaties and their flexibility in application. As for the mechanism of its formulation, it must be characterized by clarity in its language, as lawyers advise that it be written in a language that is understood and agreed upon by all concerned parties to avoid future disputes. It must be characterized by comprehensiveness of all the main objectives of the treaty and the context .

Abstract :The theory of international legal personality is one of the theories of public international law, which has developed under successive international judiciaries when considering many different international issues, It is what the international entity acquires and becomes qualified by acquiring international rights and acknowledging its obligations towards the international system and the rest of the international entities, The traditional international civil judiciary applied only to granting states an international personality to the exclusion of other entities, which considered that personality an absolute personality that was not limited by borders except by international commitment, thus completing the civil judiciary in its modern form in addition to the traditional judicial view. By granting international organizations a functional and limited personality that is derived from their goals and the charter that established them, without individuals, whose status remains within the national scope only, but the individual, with development, is accompanied by his acquisition of international rights stipulated in international agreements, his commitment to what is stated in the international system, and the possibility of him being exposed to international sanctions, which has become Like an international entity, and like the two previous international entities, the individual has an international personality, This was reinforced by what was stated in the criminal justice system in its traditional and modern forms, and accordingly, the international judiciary became the theorist for that character. Because of its effective role in many theories of international law.

Abstract : The arbitration award Is the natural result of the arbitration mission, and it Is the core of the subject of the implementation of arbitration awards , Therefore, it is necessary to know the awards that may be Implemented, the meaning of the arbitration award, Its nature, and the treatment that the arbitration award will receive in view of its legal nature adopted by countries. Since the subject is the implementation of foreign arbitration awards, It is necessary to know when the award Is foreign, and when It is national or domestic. Thus, we wIll discuss the criteria followed in granting the arbitration award a foreign status. Accordingly, we will talk about the Implementation of the foreign arbitration award, and then move to the implementation against the state In the first section, and after that discuss the executive Immunity if the state concludes an arbitration agreement and the effect of that on its executive Immunity, and then the end of executive immunity in succession.

Abstract : Legal legislation in most countries seeks to use electronic systems and abandon traditional systems due to the disadvantages of the latter and replace it with the electronic system based on the use of technology, communications and the Internet in the field of public service and the completion of administrative work, as exploiting this tremendous development in information technology will contribute to enhancing the ability of the administration to innovate by working to introduce basic improvements in the course of administrative work and the benefits it provides for the benefit of institutions and administrations with the availability of speed and efficiency in enhancing this system, and most countries have worked to apply the principles of electronic administration and its system, which is based in its existence on the practice of the competent authorities in the state of the method of good governance, as it is a system based on a set of specific foundations that the need for it emerged after the era of political collapses in most countries, as it is a system based on a set of rules that aim to control administrative performance and achieve transparency and justice and grant the right to the interested party to question the administration and achieve protection for those dealing with it.

Abstract Impartiality is one of the important criteria for the quality of administrative investigation with a public employee, and one of the most important guarantees assigned to him in all stages of the disciplinary process, which contributes to protecting the employee from the influence of administrative authority and ensuring reassurance for him. Neutrality means detachment from personal inclinations and whims and not being biased towards whoever is being investigated. He has the investigation, and one of the requirements of the investigator’s impartiality is that he does not interfere in the course of the investigation to influence the will of the referred employee by directing questions in a way that indicates and suggests that the employee confesses to the accusation against him through the statements he makes. The referred employee has no choice but to acknowledge what is stated in it, even if you do not intend to. His desire to make these statements, therefore, violating the principle of neutrality in the administrative investigation is a reason for the absence and emptying of the true content and meaning of the disciplinary guarantees for the public employee, and it can be said that this guarantee is achieved by the following:
1 - Separation between the authority to accuse and impose punishment, meaning that the authority that exercises investigation with the violating employee and then imposes disciplinary punishment is completely independent of the authority that directs the accusation, and this is what we find clearly in the judicial system, where the Egyptian legislator adopted it, as for the presidential system. We find that the guarantee of neutrality is non-existent or to a limited extent, as the administrative head possesses all powers, as both the Iraqi and Kurdistan legislators adopted this system in State Employees Discipline Law No. 14 of 1991 in force and Inclusion Law No. 5 of 2020 in force in the Kurdistan Region.
2 -Dismissal and removal of members of the disciplinary authority in the event of a relationship, friendship, or rivalry with the offending employee, in the presence of which it is not possible to issue an administrative decision without Omil’s bias.

© 2023 TUJR, College of Law, Tikrit University

Abstract: This study summarizes the search for the characteristics of delegation as a balanced system and as a method to improve administrative performance in application of laws and regulations to break administrative bureaucracy and maintain the necessary controls and oversight to limit any abuse or abuse of delegated authority. Administrative delegation is of great importance in achieving flexibility and speed in making decisions, and reducing the burden on higher authorities. However, at the same time, it may lead to ambiguity of powers and weak oversight of the exercise of delegated authority, which may open the door to the abuse of this authority unless it is governed by restrictions and controls.

Abstract : The validity and effectiveness of the arbitration agreement depends first on its meeting of its basic components, which are the authorization of the arbitrators to resolve the dispute subject to arbitration and the agreement’s self-sufficiency, meaning that it includes the basic aspects on which the arbitration process is based. Therefore, the agreement must be clear in presenting the dispute to the arbitrators and exclude presenting the dispute to the courts. The arbitration agreement is a contract in itself, like any contract, for which the arbitration law has set a set of conditions in order for it to be valid between the parties. Some of these conditions are objective and obligatory for the validity of the agreement, and some are formal, invalidating the condition if it is not observed. This agreement, when it is valid by observing the conditions required for it, has a set of effects, some of which are vis-à-vis the parties, some of which are vis-à-vis the arbitrators, and some of which are vis-à-vis the state judiciary, which is obligated to respect this condition. Some of these effects are specific to the agreement itself, as it is independent of the rest of the contract’s conditions and is not affected by the invalidity of these conditions.

Abstract : In order for the administrative judiciary to effectively carry out its duty in protecting the principle of legality and ensuring respect for the rights and freedoms of individuals, it must enjoy independence and impartiality in the face of other state authorities, as both neutrality and independence are of great importance in maintaining a judicial system capable of restoring rights to their owners, as it should The judge who decides the dispute in accordance with the law must be impartial to a person or entity and devoid of any personal bias or influence that may fall on him. He must also stand at the same distance from the parties to the case to ensure that the scales of justice are maintained equal.

Abstract :Judicial expertise is of great importance in judicial work as it is the most applied procedure. For example, it is noted that compensation claims brought before the judiciary are often linked to an expertise procedure, as is the case with real estate cases of various types, as it is a means of proof. Therefore, the Iraqi legislator has organized the method of seeking the assistance of experts in the Evidence Law and the Experts Law, but the expert who is sought by the courts has not been highlighted, and his important role in resolving many cases that require technical expertise before issuing a ruling has not been explained. The reasons that lead to the expert’s assignment, therefore, we had to research this in the content of the study, in which we reached several conclusions, the summary of which is that the judge has discretionary power to accept or reject the request to assign the expert. The Iraqi Evidence Law stipulates that the expert’s rejection shall be in the same procedures as the judge’s rejection, and the reasons were not explicitly mentioned, but the majority of jurisprudence and what is practiced in the courts agreed on the inclusion of the text of the reasons and procedures. The Iraqi legislator and the legislators of the countries being compared organized disciplinary penalties, criminal penalties, and tort liability to which the expert who violates or deviates from the course of his work and does not adhere to neutrality between the opponents and others is subject.

: The Muslim family is built through marriage in Islamic law, which is the only form of a legitimate relationship between a man and a woman. This relationship is concerned with our Islamic law, seduction, positive laws, and social systems, to protect the rights that result from this marital relationship, As one of these considerations came the idea of registering a marriage contract in the official departments of the state, where this snag is considered a problem of The Times, in which opinions diverged, and in which words and advisories opinions differed.
The circumstances of the era have necessitated the writing of contracts in all areas, civil transactions and personal status, including the marriage contract due to its seriousness, importance and distinction from other contracts, as the Sharia has taken precautions for it and stipulated that it be documented and announced with testimony, and given that testimony has become an unreliable means of changing people's circumstances, corrupting morals and weakening trust, The symptoms that can occur to people, from inattention, forgetfulness, death, reversal of testimony, and constant absenteeism, must turn to the safe means of our time of documentation in official writting.

Abstract : This research deals with the foreign arbitral award, its nature, and the procedures for recognizing and implementing foreign arbitral awards in general and on the territory of the Russian Federation in particular. It also sheds light on the most important major international agreements in this field and their impact on developing the Union’s internal laws to facilitate implementation and the extent of the impact of the Convention on the Implementation of Foreign Arbitral Awards ( New York) of 1958 enacting the Russian Federation Arbitration Procedures Law of 2002 currently in force within Russia.

Abstract : Possession as a legal system is not a modern system, it is a system that peoples have known since ancient times, and it has been applied in legal systems since the Roman era, then gradually moved to the laws of the Middle Ages and extended to our current era, where most modern legislation, including the French legislator, derived its legal rules from the provisions of Roman law and Islamic law, but in terms of possession, it moved towards the provisions of Roman law, so it considered in Article (2228 and following) that the acquisitive prescription is a reason for ownership and other real rights. As for the Iraqi legislator, according to the legal provisions stipulated in the Civil Code in force in Article (1145), it took the rule of possession as a reason for acquiring ownership. As for the Egyptian and Lebanese legislator, they did not deviate from what was organized by both the French and Iraqi legislations regarding possession, as they devoted a large part of the legal texts to it.

Abstract: The scope of the jurisdiction of the Penal Code on crimes committed on ships is an important topic in international law, as the laws and legislations governing this scope vary based on the location of the ship (territorial waters, international waters) as well as the nationality of the ship. This research deals with a comparative study between international treaties and national legislations of Islamic countries on this topic. The research aims to analyze how the Penal Code is applied to crimes committed on ships, focusing on the discrepancy between international treaties and national laws in Islamic countries. It also seeks to clarify the extent to which these legislations are compatible or inconsistent with international standards, and to identify the challenges facing Islamic countries in this context. The research relies on the comparative analytical approach, where legal texts from international treaties such as the United Nations Convention on the Law of the Sea (UNCLOS) and the Hague Convention are analyzed and compared with the national criminal laws of Islamic countries such as Egypt, Saudi Arabia, and Iran. Judicial cases and legal materials are reviewed to clarify how national laws are applied in different situations. The research finds that there is a significant discrepancy between Islamic countries regarding the application of the Penal Code to maritime crimes. While some Islamic countries follow international standards closely, others apply laws derived from Islamic law that may differ from these standards. The research points to the need to enhance the compatibility of national laws with international treaties to ensure effective law enforcement on maritime crimes.

Abstract. : The usual course of matters is that the criminal legislator determines the penalty for each crime, provided that such punishment is compatible with what results from the criminal act in terms of its gravity and gravity. This is to achieve public and private deterrence. However, it is very different in the case of multiple offences, which at first glance seem to give rise to delicate difficulties in the case of one offence committed by one offender. Whether those acts are interrelated to achieve one purpose indivisibly, or when each act has.