TIKRIT UNIVERSITY JOURNAL FOR RIGHTS

Abstract: In line with the requirements of preventing administrative and financial corruption in Iraq and in application of the provisions of the United Nations Convention against Corruption of 2003, of which Iraq is a member, the Iraqi legislator has stipulated the regulations for professional conduct in the Integrity and Illicit Gains Commission Law No. (30) of 2011, as amended. The Federal Integrity Commission was entrusted with the task of issuing these regulations to ensure the honorable performance of public office and the prevention of corruption by obligating employees to a set of positive and negative duties, the most important of which is obligating them to report any cases of corruption they become aware of while performing their duties. In light of this, the Federal Integrity Commission issued several codes of conduct that are consistent with the nature of the targeted administrative bodies.

Abstract: The franchise contract is applied in more than 80 countries, as independent legislation is adopted in only some of them, as there are special considerations in each country regarding the method used in the legal organization of this contract, and since there is no legal regulation of the franchise contract in Iraq, although It is now widely accepted that franchising plays an important role in promoting modern business development, The current research aims to identify the concept and characteristics of a franchise contract, define the standard terms of a franchise contract, reveal the features of the legal nature of a franchise contract, and clarify the legal rights defined and established by the franchise contract. The research concluded that the legislative authorities in Iraq must rewrite this type of contract even though it is not explicitly stipulated in the domestic legal frameworks, provided that it complies with the advanced models for the legal regulation of these contracts, especially in the United States of America.

Abstract: The study examined the role of the Federal Supreme Court in consolidating the principle of criminal legality in Iraq, highlighting how its decisions have ensured that no act is criminalized or penalty imposed except through clear and explicit legal provisions. The research reviewed the guarantees of legality from both substantive and procedural perspectives, particularly regarding the clarity of legal texts, non-retroactivity, the right of defense, the publicity of trials, and equality before the judiciary. The study affirmed that the Federal Supreme Court has been an effective guardian of this principle, confronting any attempts to expand or obscure criminal provisions or allow executive interference in judicial work. The research concluded with the importance of developing legislation and strengthening judicial independence to safeguard constitutional rights and uphold the rule of law.

Abstract: The civil liability of plastic surgeons is an important and modern topic in our time. Cosmetic medicine plays an important role in human life because it relates to a crucial aspect of appearance: the pursuit of beauty, which aims to eliminate deformities in the external human body. Given the dangers of cosmetic procedures in the face of widespread and widespread demand among people today, and because they relate to a person's external appearance and highlight their beauty, this has often led to significant and serious damage to the human body. Given the harmful consequences of cosmetic procedures, since sometimes the plastic surgeon bears this responsibility, many laws have tightened this responsibility. Accordingly, this research will demonstrate the civil liability of plastic surgeons.

Abstract: The urgent need has prompted the legislator to find a quick solution for some cases that require taking quick measures based on the request of one of the opponents without the need for confrontation in order to deal quickly with the rights of the concerned parties to prevent irreparable harm. The solution was in the form of procedures in principle that do not decide on the origin of the disputed right, but rather confirm the right and prevent the occurrence of any procedures or agreements that lead to the loss of the right. It is represented in what is called (the guardianship order), which represents a type of litigation that depends on the issuance of orders by the judge based on the request of one of the parties without confronting the other, and at the same time it represents a temporary procedure issued by the judge based on the request of one of the parties with the aim of protecting rights and preventing the occurrence of damage that is difficult to remedy. It was first applied in civil disputes and even its organization was within the Civil Procedures Law, but later its application was withdrawn from the constitutional and administrative judiciary, although there are those who see the impossibility of applying this procedure (the judicial order) in the constitutional and administrative judiciary due to its similarity to other means used in the administrative judiciary and for other reasons that will be the focus of our research over the course of two chapters, God willing.

The public loan is subject to various legal regulations, both formal and substantive, as stipulated in the Constitution and the relevant financial laws governing public loans. It is also overseen by an independent specialized authority — the Federal Board of Supreme Audit for Monitoring the Allocation of Federal Revenues. The law grants this authority several tools to achieve its objectives, which focus on ensuring a fair distribution of federal revenues and international loans according to the entitlements of regions and governorates not organized into a region.
This is accomplished through the authority’s participation in drafting the Federal General Budget Law, verifying the accuracy of loan distribution calculations based on criteria set by regulation, and monitoring the financing of allocations from international loans for each region or governorate not organized into a region.
However, the law, the authority’s internal regulations, and the instructions for its formation do not clarify how the authority should participate in the drafting of the budget law. They also fail to specify the criteria and standards upon which the distribution of federal revenues — including public loans — is based. Therefore, our proposals focus on addressing these gaps in order to strengthen the authority’s role in achieving its intended purpose and the reasons for its establishment, which include oversight and the promotion of justice in the allocation of revenues and distribution of international loans in a manner that benefits all components of the Iraqi people.

Abstract: This study aims to examine the role of the civil judge in simplifying or complicating litigation procedures and its impact on achieving prompt justice. The research explores the legal basis granting the judge the authority to manage the case, focusing on the criteria used to simplify procedures for expediting dispute resolution or to complicate them when necessary to ensure the parties’ rights. The study is divided into four main chapters. The first chapter discusses the conceptual and legal framework of the judge’s authority in managing litigation. The second chapter examines the judge’s role in simplifying procedures and its effect on expediting judicial decisions. The third chapter highlights the factors that may lead to procedural complications and their impact on justice. Finally, the fourth chapter addresses the balance between simplification and complication, offering recommendations for improving the judicial system to enhance efficiency and fairness. The research concludes that achieving a balance between simplifying and complicating litigation procedures is essential to preserving litigants’ rights while ensuring timely case resolution without undermining justice principles. Additionally, the study presents several recommendations, including amending laws to provide judges with clear criteria for case management, promoting the use of technology in litigation, and enhancing judicial training mechanisms to improve litigation management efficiency.

Abstract: Our research entitled (The Constitutionality of the Right to Discipline) represents an attempt to review the positions of the Federal Supreme Court on the right to discipline. which it expressed in its decisions Nos. (27/Federal/2019) and (202/Federal/2021). to show the extent of its validity and its agreement with the legal and cultural developments that occurred in Iraqi society after the implementation of the 2005 Constitution. We note that the right to discipline is subject to several concepts at the level of legal jurisprudence and Islamic jurisprudence. We have attempted to clarify these concepts in order to extract a set of characteristics capable of distinguishing it from domestic violence. This is a prelude to reviewing the arguments presented by proponents of its unconstitutionality to substantiate their claim, in light of a cognitive clarification of the potential effects of a ruling declaring it unconstitutional. However, the truth is what the judiciary, entrusted to us with professionalism and impartiality, pronounces. This does not prevent us from reviewing its decisions and placing them in the balance of constitutionality, as much as it relies on the reasons it has adopted to justify its rulings. Its recognition of the constitutionality of disciplinary action represents the truth at which the will of the secular and Islamic legislators converges in establishing the foundations of the family system.

Abstract: The international community began to pay attention to the environment at the beginning of the twentieth century, following the increasing environmental problems and risks posed by the emergence of pollution and its direct and indirect impact on humans and all living organisms on Earth, the economy, and even security, due to its devastating effects on the international environment. Countries' ongoing needs for development, strengthening their economies, leveraging their resources, increasing per capita income, and expanding and diversifying their resources, drive them to continue searching for resources within the earth, subsoil, water, and even space, in terms of exploration, extraction, and production, as well as expanding the various types of factories and plants located within their territories. The duty to protect the environment from pollution falls on all states, international organizations, and individuals alike. However, this protection clashes with the principle of state sovereignty and non-interference in its internal affairs. Just as a state is free to act within its territory, this freedom of action is not absolute. Rather, there are restrictions imposed on this freedom according to international agreements, the intervention of international organizations, and even international courts, especially with regard to harm occurring to a state or group of states. Indeed, even beyond that, the harm may affect areas not belonging to a state, but rather the common property of all states, such as the high seas, areas in the Arctic, or even outer space. Among these restrictions is the protection of the international environment from pollution and the prevention of harm to others. This restriction is at the expense of states and their sovereignty over their territories. Therefore, there must be a balance and harmony between protecting the international environment from pollution and the principle of state sovereignty. Many countries have recently been working to modify their behavior and legislate laws in line with international agreements and rules of international law that limit their authority within their countries in the field of environmental protection, combating pollution, and not harming others, through their legislative and executive powers to prevent and reduce pollution and protect the environment in line with international environmental legislation and adherence to it, in order to protect themselves from international responsibility and not be exposed to legal punishment, and to give up some of the advantages of the national interest for the sake of the interest of the international community, and to contribute to preventing its sovereignty from being infringed upon by any external authority.

Abstract: Compensating a legal entity for moral damages is a controversial issue between Islamic jurisprudence and the judiciary. This issue relates to determining the extent to which the person in question is entitled to compensation for intangible damages, as they are essentially a legal entity represented by a group of natural persons. The traditional view in this area is that moral damages are personal damages that pertain only to natural persons. However, legal developments have cast a shadow over this issue, with the recent view being that moral damages incurred by a legal entity with regard to its reputation, financial standing, or social status are considered. In this regard, it is noteworthy that the Iraqi legislator adopted a flexible approach in Article (205), whereby it mentioned the circumstances of intangible damages, for example, without limiting them to natural persons only. The same applies to French law, which recognized the right to compensation for all damages incurred by persons in Article (1240), without specifying its scope. In contrast, the English legislator limited the scope of compensation for this type of damage only if it resulted in a material impact (financial loss).

Abstract: The United Nations Development Programme (UNDP) plays a pivotal role in supporting digital development and digital transformation projects in developing countries, including Iraq. This is achieved through tangible initiatives and effective participation in cooperation with the Iraqi government. The program provides substantial support in various areas such as digital development, digital education projects, and infrastructure enhancement. These efforts aim to empower individuals and institutions to effectively and productively utilize digital networks, thereby fostering integration that contributes to the achievement of comprehensive Sustainable Development Goals (SDGs). The findings of the research conclude that it is essential to strengthen the collaboration between the UNDP and the Iraqi government to ensure the sustainability of digital transformation efforts in support of achieving the SDGs.

Abstract: Implementation over movable guarantee is divided into two types: the first is judicial execution upon non-performance of the secured obligation and breach of the security contract, or in case there is no agreement on the creditor's right to implementation over the right of guarantee. This is the basis of the movable guarantees’ laws being compared and in accordance with conditions and procedures different from those stated in the civil procedure law. The second is the contractual execution; which is an agreement between the guaranteed party (mortgaged creditor) and the guarantor (mortgaging debtor), in the form of a security contract or a separate document, giving the right to the former to execute over the guarantee in order to satisfy its right after the secured obligation is due without the need for judicial proceedings. Due to the importance of this type, comparative laws have paid special attention to it, such that considered a departure from the general rules that nullifies any agreement that gives mortgagee creditor, when the debt is not paid at the time of its due, the right to own or sell the mortgage of a secured nature, unlike the position of movable guarantees’ laws that allow the creditor himself to agree with the debtor to own the movable guarantee in the event of non-payment of the debt.

Abstract: Islam is considered a "radical" transformation in human life in terms of belief, worship, and dealings. Among the important aspects affected by this transformation are matters of inheritance. When a person or family converts to Islam, Direct legal changes occur in the inheritance rules that governed them before Islam, as inheritance between Muslims and non-Muslims is cut off. And the cancellation of the adoption system and its impact on inheritance, and the establishment of rights according to Islamic law, as Islam emphasizes the importance of documenting rights. And proving lineage and inheritance in accordance with Sharia, and encouraging the writing of wills and not leaving matters According to custom or previous traditions, with the influence of Islam in directing inheritance towards justice and equality, the provisions Islamic inheritance takes into account justice and social interests, and ensures that the estate is distributed among those entitled to it in specific proportions, thus achieving balance within the family and society.

Abstract: The widespread use of social networking sites, especially by public employees, and the serious violations that accompany it have negatively affected the work of public facilities in the absence of legal regulation for employees’ use of social networking sites. This has prompted some comparative legal systems to set controls for employees’ use of these sites to find a balance between the employee’s freedom to express opinion, which is guaranteed by the constitution, and his most prominent job duties, such as maintaining job dignity, obeying superiors, respecting colleagues and subordinates, and not disclosing public service secrets. These systems have proceeded to issue codes of professional conduct and regulations regulating employees’ use of social media, which has facilitated determining the disciplinary responsibility of the employee if he misuses these sites. In addition, the administrative judiciary in Iraq and comparative countries has tended to establish general legal principles that clarify the difference between the legitimate use of social networking sites and their misuse.

Abstract: The principle of complementarity in legal jurisdiction is reflected in the fundamental concepts of private international law. This interaction between national and international laws reflects and integrates to ensure the achievement of justice and the efficient resolution of international disputes within the legal jurisdictions that define the nature of these international legal actions.
In cases of conflict of laws and international jurisdiction, and extending to the enforcement of foreign judgments, different legal systems work in a complementary manner to determine the applicable law or the competent court, particularly in matters related to personal status, international contracts, civil liability, and other legal actions with international reach.
It contributes to strengthening judicial cooperation between states through mutual recognition and enforcement of legal rulings, which reduces legal contradictions and provides effective solutions for individuals and companies in the context of globalization.
Its role in achieving a balance between state sovereignty and the need to create flexible legal mechanisms to address cross-border disputes makes it an essential element in the development of private international law and ensuring the achievement of justice in a multi-systemic and interdependent legal environment. It also seeks to find legal formulas for global complementarity to achieve balance at the level of international private relations.
© 2023 TUJR, College of Law, Tikrit University

Abstract: This study explores moral (non-material) damage and its significance in establishing civil liability—whether contractual or tortious—under Iraqi civil law, with references to other Arab legal systems such as Jordanian and Egyptian laws, and comparative legislative perspectives. The focus is on compensating harm arising from both types of liability, recognizing damage as the fundamental element of civil liability that must be proven first, as emphasized in Islamic jurisprudence and adopted by Iraqi and Jordanian legislation. Fault and causation follow in the process. In contrast, other systems—such as Egyptian and French law—prioritize fault as the central element for liability. Moral damage, unlike material damage, does not affect financial or economic rights but rather emotional or psychological well-being. Both types may coexist in a single act, such as physical assault. Some legal systems accept the possibility of moral damage within contractual liability, especially when the contract involves a personal or moral interest for the creditor. The study concludes that moral damage is personal harm to a legitimate non-financial interest and cannot be transferred to heirs unless compensation is determined by a final judgment or agreement. It also should not be compensated if it constitutes retaliatory harm, as that burdens the debtor and turns redress into vengeance. Recommendations include allowing compensation for moral damage after the injured party’s death, if explicitly stated by law. The legislator may presume moral harm in certain cases, such as violations of name, reputation, or personal identity, and may exempt the injured party from proving such damage due to its inherently subjective nature.

Abstract: This research addresses the principle of judicial impartiality in Iraqi law, focusing on the challenges that hinder its implementation and proposing ways to address them. Judicial impartiality is a fundamental pillar for achieving justice and the rule of law, as it obligates judges to adjudicate cases without bias or external influences. The research problem lies in the existence of obstacles that hinder the optimal application of this principle in Iraq, which can negatively impact the integrity of judicial procedures and public confidence in the judicial system. These obstacles include political and social pressures, a lack of specialized training for judges, and certain legal shortcomings that may allow for interference in the work of the judiciary. The research aims to analyze the legal and regulatory framework for judicial impartiality in Iraq, identify the problems that hinder its implementation, and propose practical solutions to enhance it. It also seeks to evaluate the effectiveness of current mechanisms to ensure judicial impartiality. The importance of the research stems from the pivotal role judicial impartiality plays in establishing justice and strengthening the rule of law. The research adopts a critical and comparative analytical approach, analyzing legal texts and judicial applications, and drawing on the experiences of other countries.

Abstract: The widespread use of social networking sites, especially by public employees, and the serious violations that accompany it have negatively affected the work of public facilities in the absence of legal regulation for employees’ use of social networking sites. This has prompted some comparative legal systems to set controls for employees’ use of these sites to find a balance between the employee’s freedom to express opinion, which is guaranteed by the constitution, and his most prominent job duties, such as maintaining job dignity, obeying superiors, respecting colleagues and subordinates, and not disclosing public service secrets. These systems have proceeded to issue codes of professional conduct and regulations regulating employees’ use of social media, which has facilitated determining the disciplinary responsibility of the employee if he misuses these sites. In addition, the administrative judiciary in Iraq and comparative countries has tended to establish general legal principles that clarify the difference between the legitimate use of social networking sites and their misuse.

Abstract: The recent development in information technology and its application in all areas of life have led to the emergence of what is known as cybersecurity and cybercrime.
Cyberspace is a borderless world, and therefore the state's activities here are cross-border. They are not limited to the borders of a specific state, but rather their activities are global, via the Internet, i.e., via satellites. This creates the greatest challenges to the state's security and sovereignty, as well as to human rights, including the right to freedom of expression, the right to privacy, and the right to vote and run for office.
These rights are relevant to the cyber world, where cyber activities have the greatest impact on society. Both the international and local communities are concerned with addressing the phenomenon of cybercrime and its impact on the electronic electoral process, and with establishing legal regulation for it.
© 2023 TUJR, College of Law, Tikrit University

Abstract: The reasonableness standard has emerged as one of the most dynamic and progressive judicial tools for regulating administrative discretion and protecting individual rights. It constitutes a fundamental legal principle developed within the framework of administrative judicial review to ensure that administrative decisions align with logic, rationality, and the expectations of a prudent public official acting under similar circumstances. Given the wide scope of discretionary authority often granted to administrative bodies to address changing societal conditions and emergencies, there is a growing need for an effective judicial mechanism capable of restraining administrative overreach without hindering the executive’s flexibility. The reasonableness test serves precisely this role by allowing courts to examine not only the legality of administrative decisions but also their substantive fairness, appropriateness, and proportionality.
This study explores the reasonableness standard as a core element of judicial review over discretionary administrative acts. Through a comparative and analytical methodology, the research examines five legal systems: the French administrative model, renowned for its independent administrative judiciary; the English system, characterized by a unified judiciary; and the hybrid Arab systems of Iraq, Egypt, and Jordan, which historically derived from the French tradition but have evolved distinctively. The study aims to dissect the legal foundations of the reasonableness test, investigate its application in various courts, and highlight the divergence between these systems in terms of embracing and operationalizing the standard.
The findings indicate that in France, the reasonableness standard has been gradually shaped through the jurisprudence of the Conseil d’État into a flexible judicial tool for reviewing administrative abuses of discretion. In the English legal tradition, it has developed primarily through the Wednesbury unreasonableness doctrine, which establishes a high threshold for judicial interference and limits review to cases where decisions are so irrational that no reasonable authority would have made them. While the French model favors deeper judicial scrutiny of administrative logic, the English model is marked by restraint and deference to administrative autonomy.
In the Arab context, the application of the reasonableness standard is uneven. Iraqi administrative courts have made cautious and limited use of it despite legislative provisions that allow such review. Conversely, Egypt's Supreme Administrative Court has robustly integrated the standard into its jurisprudence, deeming reasonableness essential to the legality of administrative decisions. Jordanian courts, influenced by the Egyptian model, have increasingly invoked the standard, yet with a distinctive national approach reflecting local legal and institutional dynamics.
The study underscores that the reasonableness standard differs from the traditional legality principle, which focuses solely on the formal compliance of decisions with law. Reasonableness delves deeper into the substantive justifications, logical coherence, and appropriateness of decisions in relation to the public interest and individual rights. It represents a balanced mechanism that enables judicial oversight without undermining the discretionary space necessary for effective public administration.
Accordingly, the research recommends that Arab administrative laws be reformed to explicitly incorporate the reasonableness standard and to empower courts to apply it more expansively. Moreover, it calls on legal scholars and practitioners to contribute to defining and refining this standard through doctrinal development and comparative legal analysis, thereby strengthening judicial protection of rights while safeguarding administrative functionality.
© 2023 TUJR, College of Law, Tikrit University

Abstract: A state of emergency affecting a country, such as wars, crises, disasters, and floods, expands the powers of administrative control to address these circumstances. These impacts influence the administration\\\\'s decision-making, whether related to the external or internal components of the administrative decision. Whereas, if the state\\\\'s life is exposed to crises and risks that could lead to its collapse or jeopardize its safety, such emergencies allow the executive authority to override the internal or external components of the administrative decision-making process to make the necessary administrative decisions to address the dangers facing the country, subject to the fulfillment of certain conditions and procedures stipulated in the constitutions.

Abstract: The world has undergone profound transformations under the influence of globalization, effectively turning it into a small village. While the economic and commercial domains were initially the most fertile ground for the globalization project, it soon evolved into a multifaceted phenomenon—an octopus with far-reaching arms—bringing about sweeping changes across all aspects of life. Among the areas most significantly affected was the legal and legislative landscape of nations. Legislation, once confined to national sovereignty, has gradually shifted toward a more global orientation. This shift has been driven by the international community’s growing emphasis on shared values and universal social ideals, propelled by the emergence of a new cultural and civilizational paradigm introduced by globalization.
As a result, the principle of national sovereignty in legislation has lost much of its exclusivity. The globalization of the criminalization of financial corruption is but one dimension of a broader, more comprehensive globalization process. It reflects—and reinforces—the influence of global norms on domestic legal systems, becoming a principal source for numerous legislative provisions and a manifestation of their evolving philosophical underpinnings. What were once purely national negative behaviors have, in many cases, morphed into transnational criminal patterns. Confronting these behaviors requires harmonizing national laws with international conventions that address corruption-related crimes. This legal harmonization, when effectively implemented, plays a vital role in fostering the desired international cooperation and solidarity in the fight against emerging criminal phenomena. Achieving this goal hinges on states’ commitment to their international obligations and the effective enforcement of the provisions contained in these global agreements.
© 2023 TUJR, College of Law, Tikrit University

Abstract: These days, the feelings of different social classes and groups about the danger of crime in society and its high rates have increased. The article aims to identify criminal behavior and its social, economic, legal and legitimate dimensions, and to identify the social factors leading to crime, and the role of these factors in pushing the individual to commit the crime and return to committing it. And to reveal the extent of the relationship between crime and the various social forces and factors and their role in pushing the individual to commit the crime. There is a group of unsuitable social circumstances surrounding the sample individuals before and during the crime that played an important role in pushing them to commit the crime, in addition to the impact of the variables of family relations, economic level, educational level, residential area and nature of housing, and means of social control on the one hand, and committing criminal behavior in society. The article recommends paying attention to the different needs of young people and providing them with job opportunities, paying attention to deepening the role of the family and school in the process of social upbringing, and paying attention to densely populated areas and providing services in them.

Abstract: . This study aims to reveal the most important causative and encouraging factors to commit crime, and to present the most important social theories that explain it. This study falls within the framework of descriptive research aimed at describing and analyzing the phenomenon studied. This study concluded that no matter how many types and sources of crime are, their effects and consequences, whether on the individual, family or society, are intertwined and intertwined. The consequences of criminal behavior are intertwined and interact together, and some of them lead to others to pose a real and serious threat to the social and economic structures of the family and society alike.

Abstract: This study aims to investigate the triad of elements concerning the contractual liability of lawyers for third-party actions, with a focus on contractual fault, damage, and causal relationship elements. The study adopts an analytical-descriptive approach and utilizes library resources to initially explore the element of contractual fault and investigates the two conflicting views regarding the necessity or non-necessity of establishing fault in third-party actions. The study findings indicate that mere non-performance of an obligation by a third party is insufficient to realize lawyer liability, necessitating the establishment of fault. By investigating the damage element, the present study demonstrates that mere violation of a contractual obligation by a third party selected by the lawyer without proving damage to the client cannot establish contractual liability. Moreover, the study findings show that the damage can be material or moral, and the responsibility of presenting proof lies with the client. The investigation of the causal relationship element studied the connection between third-party fault and damage to the client and involved analyzing various theories such as equality of causes, precedent cause in effect, and ordinary cause. Each of these theories offers specific criteria for establishing causal relationships, with selection depending on the circumstances of each case and the approach of the legislator.

Abstract: This research, extracted from the third chapter of a master's thesis, explores the issue of multiple producers and their impact on civil liability for defective products. It highlights the legal complications arising when more than one party is involved in the production chain—such as the original producer, distributor, supplier, or reassemble, The study aims to determine the extent of each party's liability and to identify the legal basis for their contribution to the resulting damage. It also discusses the overlap between contractual and tort liability in this context.
The research draws upon comparative legal systems, especially French and Iraqi law, with brief references to Iranian jurisprudence, relying on general principles and consumer protection laws, The findings reveal that the multiplicity of producers complicates the causal link and necessitates a more nuanced framework for allocating liability to ensure fair compensation for injured consumers.
© 2023 TUJR, College of Law, Tikrit University