Journal of Misan Comparative Legal Studies

The jurisdiction of the criminal court is determined by the facts set forth in the bill of indictment in the case brought before it. However, the emergence of new facts remains a foreseeable possibility in any criminal proceeding and at any stage thereof—whether before the trial court or the court of cassation. Accordingly, there arises a compelling need for a legal framework capable of addressing such developments in a manner that ensures the preservation of the functional separation among the three core judicial functions: investigation, prosecution, and adjudication. This separation is vital for maintaining the integrity of judicial proceedings and enhancing public confidence in the administration of justice. The public perception that the accused has not been prosecuted for certain facts—merely because they were not included in the indictment-may severely undermine trust in the justice system. In this context, the Iraqi legislator, unlike legislators in comparative legal systems, has failed to regulate this situation within the provisions of the amended Criminal Procedure Code No. 23 of 1971. This legislative omission constitutes a significant gap that must be remedied through the incorporation of specific legal provisions governing the procedural treatment of newly discovered facts

The crime of electronic impersonation is one of the newly introduced crimes due to developments in the technological field. This crime has emerged as one of the modern forms of criminal acts that were not common when the Iraqi Penal Code (111) was enacted in 1969. Therefore, this form is a form of fraud crimes at the present time, which is considered one of the most serious crimes facing society. Therefore, countries have begun to criminalize it in particular by issuing criminal legislation related to criminalizing this type of acts. However, the absence of a law specific to these crimes does not prevent us from resorting to the general rules in the Iraqi Penal Code to criminalize this crime, because they are applied to these acts in principle. In the event that it is electronic, its effects are similar to the effects of the crime of impersonation and the crime of forgery that are known in the Iraqi Penal Code. Therefore, we decided to address this issue in three basic chapters. The crime of impersonation or electronic capacity may appear in several forms, including illicit access to websites and impersonation. Their actual owners, or simply viewing information from websites belonging to natural or legal persons and seizing information related to these persons with the aim of publishing it or blackmailing their owners. This crime may also include destroying the website after viewing it, and this crime is like other crimes that have two elements. The first is The material element that includes criminal behavior consists of the forms we mentioned. This crime also has a moral element consisting of the knowledge and will that the offender must have for the purpose of holding him accountable for his criminal behavior. Although there is no special law for this crime, it is essentially subject to the provisions of Articles (261,260) of the Penal Code which dealt with the issue of fraud.
The study included a main question: What is the crime of electronic impersonation, its prevention, and its punishment provisions? The answer, when analyzing the crime of electronic impersonation, was clear that it is a serious criminal behavior represented by the perpetrator hacking a website, accessing information and data, then impersonating the website owner, and dealing with the public by means of Electronic communication means that the website owner achieves material benefits and causes material and moral harm to the website owner. This requires a legislative confrontation of this criminal behavior, which represents an attack on private life, which the Constitution stipulates to protect. This is what calls on the Iraqi legislator to legislate a law that combats electronic crime in general. The crime is the subject of research in particular, and the penalty for impersonation or electronic identity has been increased and made it a felony instead of a misdemeanor, as stipulated in the Iraqi Penal Code No. 111 of 1969 in force to achieve general and specific deterrence and protect the rights of victims

This study addresses the legal classification of the Russian-Ukrainian war, which is considered one of the most influential conflicts in contemporary history. Tohe research aims to analyze the legality of Russian military actions in Ukraine in light of international law, focusing on the principles of the United Nations Charter. It reviews the political, economic, and social factors that contributed t the escalation of the conflict, as well as its implications for international peace and security. The research tackles a central issue concerning the compliance of the parties' actions with international laws, hypothesizing that the war constitutes a violation of these principles. Employing an analytical approach, the research draws on legal and academic sources to provide a comprehensive perspective on the conflict and its impact on the international legal system

تستمد الإدارة مشروعيتها في الحفاظ على الغذاء، وتقيم مسؤوليتها انطلاقا من الأساس الديني والتشريعي الذي يحمي الغذاء وتنشأ هذه المسؤولية على الدولة، وتتحمل هذه المسؤولية لما للغذاء من الأهمية القصوى في حياة الإنسان ودعمه بوصفه ركناً أساسيا من أركان الدولة، وتبرز أهمية الدراسة في بيان دور الحماية القانونية للغذاء. وخلصت الدراسة إلى تنوع العقوبات الإدارية، وتعدد التشريعات الناظمة لحماية الغذاء، كما توصي بوجوب تشديد العقوبات، وتضمين الدستور نصا صريحا لحماية حق الإنسان في بيئة سليمة خالية من كل أشكال التلوث، بما فيها التلوث الغذائي، وبما يكفل حقه في الصحة.
ان المحافظة على الصحة العامة من الحقوق التي يكفلها المجتمع لكل مواطن وعلى الدولة توفير المستلزمات الضرورية للتمتع بها، أن هذه الصحة العامة تتمثل في حماية صحة المواطنين من الإمراض والأوبئة ومكافحتها ومنع انتشارها وإعداد حملات التلقيح ومراقبة الأغذية وفرض القيود الصحية اللازمة على المحلات العامة وإعداد المياه الصالحة للشرب والعمل على حماية البيئة من التلوث، فالإدارة متمثلة بهيات الضبط الإداري والتي تعني بالمحافظة على الصحة العامة لا تستطيع ان تقوم بتوفير تلك المستلزمات إلا من خلال الاستعانة بالعديد من الوسائل التي من أبرزها اللوائح والأنظمة الخاصة بالمحافظة على الصحة العامة وكذلك القرارات الإدارية الفردية بالإضافة إلى اللجوء لأسلوب التنفيذ الجبري المباشر

The tax dispute represents the sole recourse available to taxpayers against the tax administration, which possesses certain privileges, thereby reestablishing a semblance of equilibrium between the tax authority and the rights and protections afforded to taxpayers under tax law. For the taxpayer, taxation serves as a compulsory deduction mechanism and a means of depleting personal finances and assets. The existence of a judicial authority tasked with striking a balance between the two parties has become one of the most important things in the tax field at a time when it is the primary source of revenue for the modern state and a means of achieving its intervening goals. This causes increased friction of the tax administration with individuals and thus provokes tax disputes between the two parties. It was necessary for us to recommend at the end of our research the need to abolish these committees and the development of a specialized tax judiciary in the form and mechanism that has been mentioned in order to ensure the actual protection of the application of the tax law. This was done in order to take the Iraqi legislator under the Income Tax Law No. (113) of 1982 and force a special path represented by the task of settling tax disputes to quasi-judicial committees called the Appeal Committees and the Cassation Authority

fi daw' aldirasat aistantajna bi'ana eard 'aw nashr suluk mujrim wafim yartabit al'amr bialmuhtawaa almas bialakhilaq waladab aleamat 'ana hadha alwasf la yughayir min tabieat aljarimat 'aw takyifiha alqanunii wanaetaqid 'ana almusharie aleiraqia raghm 'iisabatih fi tajrim hadhih alsuluk 'iilaa 'anana aiqtarahna ealaa almusharie tashdid aleuqubat bialnisbat alaa aljarayim almasih bialadab aleamat liansajim kharq alfiel mae tabieat wataqalid almujtamaei, bial'iidafat 'iilaa tajrim almuhtawaa alsabi' ealaa 'asas mieyar alaistighlal 'aw alhusul ealaa manfaeat 'aw eatiat 'iiza' dhalik kama yanbaghi, tushadid aleuqubat astnadaan 'iilaa aliat tanfidhiha 'aw rabtat, bimuhtawaa yataearad mae alqiam waltaqalid alaijtimaeiat wamunafi liladab aleamat 'aw yamasu alhayaat alkhasat lil'afrad wakadhalik rukn alealaniat astdlalaan bi'athariha alwakhimat ealaa almujtamaeat Keywords: Criminal liability for publishing content that offends public morals

Given the importance of the role played by the arbitrator in the arbitration process and the importance of the task entrusted to him, various international and national legislations have surrounded the process of selecting the arbitrator with conditions that are not open to discussion in terms of their availability, The arbitrator plays the role of a judge in settling the dispute before him after the judge’s real jurisdiction has been stripped away by the parties’ agreement to refer this dispute to arbitration as an exceptional judicial means. Because of the importance of this role that he performs and the weight of the responsibility placed on his shoulders to issue a ruling in which he preserves the rights of the opponents and ensures the proper application of the relevant legal rules, it was necessary for him to have characteristics that reflect the seriousness of the task that he performs, The arbitrator must be independent, not be bound by any subordinate relationship with the parties, and be neutral, not favoring one side at the expense of another, in addition to his integrity, which requires him to disclose what affects the course of the arbitration trial. In addition to the conditions that must be met by the arbitrator, he must perform a set of obligations that will ensure the seriousness and integrity of the course of the arbitration procedures and preserve the rights of defense and equality between the opponents, leading to the issuance of a sound and enforceable arbitration award, Accordingly, we will devote this section to explaining the conditions that must be met by the arbitrator, in addition to the obligations imposed on him and which he must fulfill, in two sections. The first section will be devoted to examining the conditions that must be met by the arbitrator, while the second section will be devoted to examining the obligations imposed on the arbitrator

This study addresses the issue of urgent justice as a tool for protecting constitutional rights in Iraq, given the serious violations these rights may face, the effects of which are difficult to remedy through traditional judicial mechanisms. The study demonstrates that delaying the resolution of disputes of a constitutional nature may lead to To the loss of the effectiveness of the judicial ruling, which requires the provision of urgent judicial means, such as guardianship orders and the suspension of the implementation of the contested decisions, which are stipulated in both the Civil Procedure Law No. (83) of 1969 and the State Shura Council Law No. (65) of 1979.
We focused on the extent to which the Federal Supreme Court in Iraq has adopted the principle of urgent adjudication, particularly in cases of flagrant violations of constitutional provisions, whether through contrary legislation or decisions, or through the failure to implement the court's own rulings. The study is based on two hypotheses: the first, the possibility of a legislative vacuum regulating urgent matters before the court; and the second, the possibility of an existing regulation whose effectiveness requires an assessment.
The study concluded with an analysis of the legal and procedural framework for urgent judicial proceedings before the Federal Supreme Court, demonstrating its adequacy in achieving urgent constitutional protection. It also conducted an analytical comparison with the American and Egyptian experiences, with the aim of extracting best practices and appropriate recommendations for enhancing the effectiveness of the constitutional judicial system in Iraq

The research topic focuses on the Comply or Explain rule as an advanced legal methodology that emerged from the developments of economic life at both the official and societal levels. Many recent legislations have adopted the aforementioned rule as a flexible methodology in enforcing the rules of law that depends primarily on taking into account the special character of commercial interests on the one hand and not compromising the rule of law on the other hand. The idea of the mentioned rule is mainly focused on enabling traders (individuals and companies) to establish their own regulatory mechanisms to respond to the rules of law on the one side and involving the social element in monitoring them and holding them accountable in the event of violating the rules of law on the other side. The Comply or Explain methodology therefore allows traders to choose the appropriate time to work with the provisions of the law, provided that the reason for this laxity is disclosed to the market in general and the regulatory authorities in particular. On this basis, the research specifies a state of legal integration between the official bodies responsible for monitoring the implementation of the law and the unofficial bodies (the market) authorized by the disclosure (explanation) mechanism to monitor traders who violate the provisions of the law and take the appropriate position against them according to the market’s ability to influence the field of credit and commercial reputation

This research focuses on administrative oversight as an internal mechanism used by higher administrative bodies to ensure compliance of subordinate units with laws and regulations. It outlines the types of administrative control, such as hierarchical and supervisory oversight, and tools like reports, inspections, and internal audits. The study highlights its role in correcting administrative misconduct, preventing corruption, and improving performance. Administrative oversight serves as an effective tool to enhance efficiency and maintain discipline within the public administration without judicial intervention

This study examines the role of the Federal Supreme Court in Iraq in protecting human rights through a comparison with the US Supreme Court. It aims to review the origins, jurisdictions, and working mechanisms of each court in protecting rights and freedoms, highlighting their similarities and differences. It also focuses on the challenges facing the Federal Supreme Court in Iraq, such as the lack of political independence and the limited powers it has to enforce its decisions. Furthermore, the study offers recommendations for improving the effectiveness of the Federal Supreme Court in protecting human rights, drawing on the US experience in this area. Ultimately, the study seeks to highlight the importance of strengthening judicial independence and expanding the powers of the Federal Supreme Court in Iraq to ensure better protection of human rights

يشكل القانون الدستوري القواعد الأساسية في الدولة المعاصرة فهو يبين شكل الدولة ونظام الحكم فيها و تنظيم السلطات العامة من حيث تكوينها واختصاصاتها وعلاقتها بعضها ببعض وبالأفراد او المواطنين ويقرر حقوق الانسان وحرياته ويضع الضمانات الأساسية لحمايه هذه الحقوق و تلك الحريات وكفاله استعمالها وعدم التعدي عليها إذ قسم البحث على ثلاثة مباحث وخاتمة وقائمة بالمصادر والمراجع .
تناول المبحث الاول التعريف بالقانون الدستوري وانواعه بين الدولة العراقية والدولة الايرانية ، أما المبحث الثاني تناول مبدأ سمو الدستور وتحديد مصادره ، والمبحث الاخير كان بعنوان تمييز القانون الدستوري عن غيره من المصطلحات القانونية وعلاقتها بها و الرقابة الدستورية على الإذاعة والتلفزيون

Public order was and still is the cornerstone of all arbitration processes, which regulates their rhythm. Any rulings that are in accordance with public order are enforced, and any rulings that violate it are invalidated. Therefore, the parties to the legal relationship must take into account the formulation of an arbitration agreement in a way that achieves the highest essential interests and protects the legal system of the state. This will not be achieved unless the parties to the arbitration agreement take into account public order when concluding it, as the necessary capacity must be available to the parties, in addition to the necessity of writing it down and specifying and mentioning some information such as the duration, language, and specifying the number of arbitrators. Three jurisprudential trends have emerged to clarify the issue of the validity of arbitration, and all of this is in light of the legal texts of the agreements and comparative laws

The constitutional restriction on the inadmissibility of enacting legislation that conflicts with the constants of the provisions of Islam, organized in Article (2/First/A) of the Constitution of the Republic of Iraq for the year 2005, represented a real turning point in the necessity of referring to the fixed Sharia provisions when draft laws and their proposals become effective laws. This constitutional basis obliges the legislative authority to know the fixed Sharia provisions from the beginning, so that its formulations of legislation are consistent with them in their explicit and implicit meanings, and in their goals and purposes. Hence, the research raises a major legal problem related to the position of the fixed provisions of Islam on the ladder of the legal system in the state. Its discussions attempted to answer it by dividing it into three discussions: the first of which was devoted to the principle of considering Islam the official religion of the state, and the second was assigned to present the principle of Islam as a basic source of legislation, while the third focused on the principle of the inadmissibility of enacting a law that conflicts with the constants of the provisions of Islam, reviewing the position of constitutional jurisprudence and judiciary on these principles, arriving at showing the effect of the application of the restriction of fixed Sharia provisions on legislation

Stocks play a significant and pivotal role in driving development, providing an investment climate that leverages savings and channels them into necessary investment channels. This has a profound impact on individuals and, subsequently, societies as a whole. Stocks play their role in fostering national economic growth by contributing to development projects that countries need to drive the development process, which in turn impacts individuals in particular. It is then an important tool for small investors to grow their savings through the profits they have contributed to, and an important financing tool for companies that need financing to achieve their goals, and even to grow the shares of companies and financial institutions to secure the profit they need to draw the required amount desired by financial companies.
Through this importance of trading their shares, the importance of the principle of trading shares in the stock market based on speculation in shares and even bonds increases and becomes clear, which has become an economic activity by which the national general economy is measured, despite the fact that this principle is considered part of the public order and the imposition of restrictions, whether regulatory or legal. However, this principle should not be violated, even if there is a crack in the principle, as we are trying to examine how to trade stocks in a legal and legitimate manner without compromising public stability and public order. We will address the legal and legitimate restrictions on the principle of free stock trading, and address legal reform and legitimate alternatives to revive the Iraqi stock market

Iraq is currently suffering from a criminal policy crisis in confronting financial and administrative corruption crimes in the field of employment in general and the government debt collection function in particular. Given that these debts represent sums of money owed to the state by individuals, some of those specialized in this process, including employees and those charged with public service, are greedy to exploit their authority and job security to breach their duties and carry out various actions that enable them to obtain material and moral benefits in order to obstruct their collection. This continues to constitute a waste of public funds and a deprivation of the public treasury, rather than an enrichment. This law raises numerous questions, most notably: Is the procedural structure of criminal policy in Iraq sufficient to confront administrative, financial, and other corruption crimes? Which prompted us to study this topic in two chapters in order to arrive at solutions that could possibly be sufficient to address this crisis in a set of proposals such as establishing a financial investigations department in the Financial Control
Bureau

The study addresses the impact of the Ukrainian war on Turkey's position regarding it, and attempts to assess the effect of that war on Russian-Turkish relations. Since the outbreak of the Ukrainian war, Russian-Turkish relations have been on the brink of successive challenges that have pushed each party to work on protecting its economic, security, and geopolitical interests, as well as preserving its sphere of influence. Turkey is strategically located between Russia and Ukraine, and its balancing policy has made it supportive of Ukraine while not entirely antagonistic towards Russia, which has given it a unique position in managing roles and reducing tensions. Russia is facing pressures due to the overlap of many regional and international issues, which requires it to balance its crises. The study concludes that Turkish-Russian relations are unlikely to differ significantly from the current reality, as both parties are approaching their relationship from a pragmatic perspective

The policy of criminalization and punishment is at the forefront of the topics of the Penal Code for the abundance and diversity of its practical applications. So it's been and continues to be the subject of extensive and in-depth studies, because it's an arc point. And because of the principles that every researcher should go into their content and address their provisions, Every development is worth studying, and through this development, ideas that deserve to be researched have a profound impact on what preceded them. Since the policy of criminalization and punishment only promotes if there is a legal provision criminalizing the acts that lead to their establishment, So the legislator in the Political Parties Act embraced a broad criminal policy, The scope of criminalization was not limited to the party as a moral person but extended to the natural person representing the party, acting in a name and in favour

Deep fake crime is a digital offense that relies on artificial intelligence technologies, particularly Generative Adversarial Networks (GANs), to create and produce visual or audio content that closely resembles reality. This synthetic content is often indistinguishable from authentic material to the general public due to its high level of accuracy and sophistication. The primary purpose behind generating such manipulated content may involve defamation, blackmail, or extortion, serving the perpetrator’s specific objectives. Additionally, deepfake technology is frequently exploited to commit financial fraud against public and private institutions. The significance of this study lies in the fact that deepfake crime is a modern transnational offense that poses severe risks and harms to nations and societies. However, our research has revealed the absence of explicit legal provisions that directly criminalize deepfake activities in the legislation under review. Consequently, it becomes necessary to refer to general and specialized laws on cybercrime to address and fill this legislative gap by establishing an appropriate legal classification for deepfake crime. This approach is essential to ensure that such offenses are effectively addressed and that perpetrators do not evade punishment. While existing laws provide mechanisms for prosecuting offenders, it is crucial to introduce explicit legal provisions that explicitly criminalize deepfake offenses and impose penalties that correspond to their severity and dangerous implications

The idea of examining is based on the effect of a judge's criminal liability for his procedural errors, which is an exception to the origin which establishes special immunity for judges and the irresponsibility of their actions, human judges have always made mistakes in the course of their work, work and decisions in certain cases by holding them accountable because the judge is a human being exposed to misunderstandings, errors, negligence or favours an adversary, taking into account that the procedures for questioning a judge are punishable by legal guarantees aimed at protecting the judge from malicious prosecution or other practices that affect the prestige and independence of the judiciary. In order to demonstrate the extent to which the judge may have partial responsibility

Automated administrative decisions represent an important development in decision making processes in sectors government sectors and private institutions in the age of digital technology many administrative agencies and rely on automated systems and artificial intelligence to make administrative decisions accurately and effectively .Digital transformation has become the path followed towards digital governance and perhaps the most important phenomenon in this field is automated administrative .Administrative automation is considered a policy aimed at managing administrative procedures in an automated manner with the greatest possible errors through the use of artificial intelligence techniques in issuing and implementing administrative decision. Which acquires its legal status when it is issued by a competent authority authorized to do so. The enforcement of an automated administrative decision is achieved once the decision is issued notified or published in accordance with the rules with its legal effects arranged just like a traditional administrative decision

This research studies the relationship between Islamic jurisprudence and positive law, and proceeds from reality to evaluate the position of one towards the other. In this field, it sees that the relationship between jurisprudence and law is a thorny one, tainted by differences, intersections and conflicts, and that despite the clarity of this, we have not found serious attempts to bring viewpoints closer together, or to eliminate the differences that cause people to become uneasy, and the loss of their interests and rights, as neither party has held a conference, symposium or workshop, or presented a study to diagnose the causes and develop solutions.
The research identifies that the reason for the difference is actually due to the adoption by some jurists and legal experts of ideas that are opposed to the other party, which represents its intellectual and philosophical vision. Some jurists adopt ideas that deprive the legitimacy of positive law, and some legal experts believe in ideas that deny reliance on Islamic jurisprudence in the process of positive codification. These ideas of both parties represent complexities, obstacles, and impediments that prevent the convergence of jurisprudence and law, and negatively affect the lives of people, individuals and groups.
Then the research discusses the justifications of both parties - after diagnosing them - and concludes from that that they are not suitable for anything that they have arranged for them, and that each party needs to reconsider its position towards the other, especially with the existence of intellectual foundations for rapprochement with the other, as Islamic jurisprudence does not oppose the law in an absolute manner, nor does the law reject Islamic jurisprudence in a complete manner, as each of them has a great capacity for openness to the other, accepting it and harmonizing with it

There is no doubt that the law is an indispensable social necessity and in view of the increasing construction on the space of others and the transgressions that occur, which constitutes a traffic crisis if the transgression is on a public road or affects the right of others, which causes damage to the property of others Building on the space of others is an obstacle that not only stands in the way of the individual, but may also occur through encroachment on the state’s space, and this is what we see today, the encroachments that are built on sidewalk spaces Which is owned by the state, and this is what hinders the citizen’s movement and causes a major traffic crisis. It was necessary to research the definition of building on someone else’s space and cases of building on someone else’s space without permission from the owner and with his permission, and then we reached conclusions