Journal of Misan Comparative Legal Studies

Through our research, we have explained the concept of the right of imprisoned university students to education, as the university student can complete his initial university education and even postgraduate studies inside the prison. We have explained through the research that the legal basis for the right of the prisoner to education is included in international conventions and declarations as one of the most important human rights, therefore it has been recognized by most national legislations, including the French, Egyptian and Iraqi legislators. We have also shown that education and taking exams do not only take place inside the penal institution, but the university student has the right to move to the committee headquarters in the universities to take exams there. We have found through the research that the Iraqi legislator encouraged prisoners to continue their education by allocating cash and in-kind rewards

Liability for breach of the contractual guarantee is one of the most important effects of contractual guarantees, as it is manifested in the obligations of the parties arising from the contract, whether these obligations are mutual (in contracts binding on both parties) or on one party for the benefit of the other party (in contracts binding for one side), as these obligations arise in the parties to the contract, and contractual guarantees have an impact on commercial relations, as the guarantee may affect the relations between the parties, as it can lead to more confidence or tension of relations in the event of problems in fulfilling obligations, and contractual guarantees also have an impact on the settlement of legal issues related to debt in the event of a dispute, in addition to their effect also manifested in determining liability (the responsibility of each party to the contract), and who bears responsibility for any damage or losses that may result from non-compliance with contractual obligations

The world is witnessing rapid advancements in artificial intelligence (AI) technologies, which are now profoundly impacting various sectors such as justice, education, and healthcare. However, these systems may commit errors due to data bias or programming deficiencies, leading to violations of human rights such as the right to privacy, equality, and a fair trial. This raises a legal dilemma regarding the adequacy of traditional accountability frameworks and the identification of the responsible party: the programmer, the manufacturer, or the user.
This study addresses the issue by analyzing the legal and technical concepts of AI systems and clarifying the impact of their errors on civil, political, and economic rights. It also highlights emerging legal challenges, such as the difficulty of tracing the source of error and the complexity of AI algorithms, as well as the lack of specialized legislation that keeps pace with these developments. The study proposes the need to develop a specific legal framework that ensures accountability while aligning technological innovation with the protection of fundamental human rights

The issue of the impact of the impossibility of enforcing administrative court rulings is one of the topics that has raised numerous problems that require further consideration. Impossibility is an obstacle to the implementation of rulings، and individuals resort to the judiciary، which is the refuge to which individuals turn to obtain their rights. However، the intended benefit of a ruling does not end with the mere establishment of a right، but rather with the attainment of that right. For this reason، our research addressed impossibility، its types، and the effects that result from the impossibility of enforcing a ruling. The research was based on the significant impact of impossibility on the rights acquired from rulings، on the one hand، and the validity of the rulings، on the other. The best way to implement rulings is through proactive efforts by the administration and its attempts to find solutions، as the administration is closest to the executive process and its responsibility. This stems from a sense of responsibility and the continuity of service provision. Therefore، there is a need for the presence of a committee or executive judge from the administrative judiciary who is responsible for implementing and following up on the rulings issued by it

This study aimed to clarify the scope of the judge’s authority in managing civil litigation and to analyze the role of justice requirements in directing and regulating this authority, with a focus on the impact of the principle of confrontation in protecting the parties’ rights and limiting the judge’s discretionary power. The study adopted a descriptive, analytical, and comparative approach by analyzing relevant legislative texts, reviewing judicial rulings, and examining scholarly opinions, with a comparison between Iraqi and Egyptian law, within the scope of civil litigation procedures and the parties’ rights of defense. The results indicated that the principle of confrontation imposes a positive duty on the judge to ensure balance between the parties, and that any violation of this principle leads to nullification of the judgment, highlighting the importance of the judge’s role in safeguarding the parties’ rights. Among the key recommendations is the necessity to guarantee the right of defense by enabling the parties to prepare their legal pleas and evidence in advance, thereby reinforcing the effective application of the principle of confrontation

Resignation is one of the reasons for the termination of the functional relationship between an employee and management. However, the decision to resign entails a number of legal consequences, which are of two types: administrative consequences concerns At the end of the employee\'s relationship by management, loss of their job title, and the possibility of reappointment. Other consequences are financial consequences related to the extent to which the resigning employee is covered by financial rights. A public employee\'s resignation does not necessarily mean the loss of all their financial rights; rather, it places these rights within a new legal framework. Obtaining retirement and other financial rights depends primarily on length of service, applicable civil service laws and regulation, and the type of resignation—whether it is an explicit resignation or a de jure resignation

A breach of implicit contractual obligations under Iraqi civil law occurs when one of the contracting parties fails to perform the obligations implicitly imposed by the contract، whether by non-performance، delay، or defective performance. Under English law، a breach of an implicit contractual obligation through partial non-performance leads to a breach of the entire obligation. In English law، contractual liability arises simply from the breach، without the need to determine whether the debtor committed a fault، making liability objective. The breach is assessed based on the severity of the damage، regardless of whether the clause is explicit or implicit. Similarly، under Iraqi civil law، contractual liability is based on fault، as the debtor’s failure to fulfill their obligation is considered a fault that results in contractual liability. The debtor can only be relieved of liability by proving a foreign cause. Regardless of whether the breach concerns an explicit or implicit contractual obligation، either form of breach gives rise to contractual liability

This research aims to shed light on the criminalization policy of adultery, considering it one of the most serious violations against the individual. The study seeks to identify the foundational principles underpinning this policy within the legal framework and the protected interest intended to be safeguarded through criminalization. Penal legislations may adopt either a utilitarian basis or a moral basis, and between these two foundations, the crime of adultery and its associated acts are suppressed. When the criminal legislator—whether in Iraqi law or in comparative foreign and Arab legislations—stipulated the criminalization of adultery, the intent was to protect acts in which the woman is considered a victim. Consequently, adultery committed without her consent was criminalized, overlooking the potential harms resulting from such illicit relations, which may lead to lineage confusion, the spread of diseases and epidemics, as well as the proliferation of immorality and corruption within society. This poses a threat to the family unit, which Islamic Sharia law emphasizes as the cornerstone of societal construction, development, and prosperity, and as a source for the dissemination of moral and virtuous values

This research examines a comparative analytical study of the provisions governing subcontracting employment contracts in Iraqi, Egyptian, French, and English laws, focusing on the issue of employing foreign workers recruited from abroad. This research comes amid the growing phenomenon of subcontracting as one of the contemporary work patterns that allow companies and institutions to assign some of their work to other entities that carry out these tasks using their own workforce. The research aimed to analyze the legal framework of subcontracting employment contracts in comparative legislations, determine the scope of legal responsibility between the original employer and the subcontractor, and evaluate the adequacy of legal guarantees to protect the rights of foreign workers in subcontracting employment contracts. The research concluded with several findings, the most important of which is the necessity to develop Iraqi legislation related to regulating subcontracting employment contracts, enhancing joint accountability mechanisms for the original employer and the subcontractor, and providing additional guarantees to protect recruited foreign workers. The research also presented a set of legislative and regulatory recommendations to address the legal challenges associated with subcontracting employment contracts

Jurisprudence dealt with the status of urgent procedures from several aspects, interms of the possibility of intervention by the national judiciary by taking suchmeasures, and in view of the legislative developments taking place at the international level in the role of arbitral tribunals by holding their competence in making decisions in urgent matters, especially in light of thetemporary procedural system prior to arbitration and issued From the International Chamber of Commerce in Paris, where several national judicial and arbitral decisions were issued, which dealt with urgent matters in disputes before the arbitral tribunal.At the level of the national judiciary, this jurisdiction has played a prominent role in the activation of arbitration from the beginning, that is, from the moment of the formation of the arbitral tribunal until the execution of the arbitral award, The research on the jurisdiction of the national judiciary in urgent and temporary matters begins by knowing the extent to which it can take these measures, but at the level of arbitral tribunals, their competence in considering urgent matters stems from the principle of the authority of will, which is one of the most prominent features of arbitration, which gives the right to the parties to the disputeto choose the law applicable to the subject matter. Dispute, and choice of law applicable to the procedures applied by the arbitral tribunal

This article discusses the legislative problems of the vacancy of a seat in the House of Representatives in Iraq, Compared to the legislative problems in the Arab Republic of Egypt. A vacancy in the House of Representatives is a normal and expected condition, so constitutional and legal legislation regulates cases of vacancy. Iraqi legislation under the Constitution of the Republic of Iraq of 2005 has addressed it through the replacement of members of the House of Representatives Law No. (6) of 2006 as amended, the House of Representatives Law and its formations No. (13) of 2018, and the various Iraqi Council of Representatives election laws issued under the Constitution of the Republic of Iraq for the year 2005, and the successive internal regulations issued regarding the organization of the workflow in the Council. to regulate these cases. During this period, many vacancy cases and legal disputes occurred regarding them, so this study focused on analyzing these legislations, observing their applications, and knowing the extent of their adequacy to regulate Vacant cases, because of their importance affecting the validity of the parliamentary representation of the people, and the integrity of the democratic process, comparing this with the legislation issued under the Egyptian Constitution of 2014, as amended. The study also addresses the most important legal disputes that arose from vacancy cases, and how the Federal Supreme Court dealt with them. The study concluded that there are many legislative voids in this area, which the Federal Court tried to fill, but the researcher noted that there is still an urgent need to fill these voids legislatively

This research examines the legal regulation of optional data in commercial transfers under Iraqi and Qatari law. Such data represent an additional element in the structure of the commercial transfer, complementing the mandatory information required by legislation. This distinction reflects the legislator’s intent to establish a legal framework that facilitates commercial transactions and creates exchange obligations among traders .
The study aims to clarify the nature and legal adaptation of optional data in commercial transfers within the context of both Iraqi and Qatari legal systems. It explores whether these data merely constitute supplementary contractual terms or whether they bear an independent legal significance that may affect the validity and enforceability of the commercial instrument.
The findings reveal that optional data genuinely express the will of the drawer or the parties involved such as endorsers or guarantors and that the jurists’ primary concern should be directed toward defining the precise legal consequences arising from these data. The analysis further highlights that many jurists have treated optional data as additional conditions or mere agreements without sufficient investigation into their legal adaptation or deviation from customary rules and legislative provisions.
This study adopts a comparative descriptive–analytical methodology, focusing on the positions of Iraqi and Qatari legislators regarding the issue. It concludes that both legal systems have regulated optional data within the framework of existing commercial laws, thereby influencing the legal interpretation and adaptation of such data in commercial practice

Administrative disputes are among the most pressing challenges of modern governance due to overlapping jurisdictions and unclear application of legal provisions, often leading to conflicts between ministries or with independent bodies The Iraqi State Council serves as an advisory authority that provides legal opinions to clarify contested provisions, ensuring proper implementation and preventing disputes from escalating to the judiciary However, this role has been restricted by Paragraph (Third) of Article (6) of the amended State Council Law No 65 of 1979, which requires the mutual consent of the disputing parties, thereby limiting its practical effectiveness

Constitutional oversight of the suitabilIty of legislation is \"a fundamental guarantee for the protection of rights and freedoms\", which is achieved by preventing the legislator from using his discretionary power tyrannically. A sound understanding of the role of the constitutional judge should not be limited to a literal comparison between the legislative text and the provisions of the constitution, otherwise there would be no need to establish a judicial body to oversee contested legislative texts. Constitutional oversight of the suitability of legislation does not mean that the constitutional judge replaces the ordinary legislator, thereby encroaching on the legislator’s discretionary power based on the principle of separation of powers. Therefore, oversight of the constitutionality of laws in cases where the constitutional basis Is clear and specific is oversight of legitimacy, not oversight of suitability. However, in the case of ambiguity or lack of specificity of the legislative basis, it is impossible to consider the oversight exercised by the constitutional judiciary as oversight of legitimacy

The marriage contract is a bond between a man and a woman founded on affection and compassion, with the aim of establishing a shared life and protecting lineage. It holds a special status in both Islamic Sharia and civil legislation. Nevertheless, this contract is not immune to attempts of circumvention through the conclusion of simulated marriage contracts that do not genuinely aim to fulfill the fundamental purpose of marriage or establish a real marital relationship, but rather conceal other intentions. Accordingly, this study seeks to analyze the concept of simulation in marriage contracts, clarify the legal consequences resulting from such contracts, and explain how courts exercise their authority in examining marriage contracts and uncovering their simulated nature

Due to the serious violations that oil sites are exposed to, which threaten the security of the state, its sovereignty, and its economy, as well as undermine foreign oil investment, the need has arisen to establish effective punitive provisions to protect these sites from such serious violations. Penalties represent one of the fundamental guarantees for protecting national wealth and attracting foreign capital. These penalties also constitute the core element of the penal policy, as they bear the greatest burden in achieving deterrence. They aim to hold the offender accountable for their criminal act and to deter others from committing similar acts. the original penalties for crimes affecting foreign investment in oil sites vary between corporal penalties, imprisonment, and financial sanctions, imposed according to the severity of the committed act and the resulting harm. Iraqi legislation differs from the compared legislations in terms of the nature of the imposed penalties for crimes affecting foreign investment in oil sites, as each country has its own penal policy to combat these crimes

The rapid increase in the volume of e-commerce has been accompanied by an increase in the volume of disputes and disagreements arising from commercial transactions. This has necessitated the emergence of arbitration, a more effective means of resolving disputes and keeping pace with the rapid pace of e-commerce. Therefore, it is necessary to determine the applicable law to matters of evidence before the arbitrator or arbitration panel.
The multiple laws applicable to matters of evidence before the arbitrator are at the discretion of the parties or the arbitration panel. The considerations for choosing the applicable law to the evidentiary procedures in arbitration disputes may differ from those considerations that drive them to choose the applicable law to the subject of evidence. Therefore, the two laws should not be confused

The study on \"Criminal Responsibility for Violating Preliminary Investigation Procedures\" included an explanation of the procedural criminal rules that govern preliminary investigations, as well as the criminal responsibility incurred by a person who violates these procedures outlined in the procedural criminal rules. This is due to the necessity of applying these rules in a manner that achieves their intended purpose, which is to protect both public and private interests