Volume 6, Issue 2, Autumn 2015, Page 7-393


Legal rooting for the entry into force of the contract in the third right (A comparative study)

Abbas A. Mihamed; Nubras T. Jabar

AL-Qadisiya Journal, 2015, Volume 6, Issue 2, Pages 7-63

It is agreed that the contract does not create rights or obligations except for contractual asset year, a so-called relativity effect of the contract in terms of people, and spends Banasrav provisions of the contract to the limbs, or be in their judgment, Valacod not harm or benefit only Aakadiha. If this general principle governing the effects of the contract in the light of the provisions of the law and the limits of freedom of contractors in terms of the legal texts make pacta contractors commit themselves to implement it without departing from its provisions, and where the contractors are free to limit the effects of the contract between them; the latter fact is the work of voluntary, the realization of their will may require, that does not exceed its effects to others. However, this principle is sometimes not an obstacle to the possibility of the contract to a third party. Just have a role in the will of the infinite effects of the contract between the parties, it has to allow others to take advantage of some of its effects. If the law had been counted that these effects do not harm not only the contracting parties stating it sometimes arranges for other rights arising out of it and therefore it was necessary for the legislature that no grounds logical, realistic been or philosophical, justifying its intervention and allow the flow of rights over others.

Legal protection of the right to move in Iraqi law (( A comparative study ))

Nada S. Hadiy

AL-Qadisiya Journal, 2015, Volume 6, Issue 2, Pages 64-86

تقوم فرضية البحث على اســاس ضرورة توفير حماية تكــمل الحمـاية الدولية التي تتـمثل بتقرير حماية دوليةجنائية لحقــوق الانسان كافه ولحق الانتقال خــاصه من خــلال تفعيل القانون الدولي الجنائي ، ويكون ذلك بتجريم الافعال التي تعد انتهاكا للحق نطاق البحث ومحاكمة منتهكي .
وقبــل هذا يجب ان نشير الى اهمية هذا الموضوع والاسباب الرئيسية التي دفعت بنا الى اختياره والتي تتمثل بالرغبة في ايضاح ماهيه حق الانتقال تتضمن تعريفه لغة واصطلاحا مع بيان اهميتة القانونية والشرعية للإنسان اذ تتزايد أهميته هذا الحق بعد انــشاء المحكمة الجنائية الدولية الدائـمة ودخول نظامها الاساسي حيز التنـفيذ كما تأتي اهمية هذا الموضوع في الواقع العملي لعدم وجود فــرع مـــن فــروع القانون الـدولي الــعام لإضفاء الحماية الدولية على حقوق الانسان وعدم وضـوح مـعالم هذه الحماية ادى الى الخلط عن عمد او سهوا بين احكام القانون الجنائي الداخلي والقانون الجنائي الدولي فمن المتصور بان هذا الخلط هو نتيجة طبيعية ، لعدم وجود متخصصين في مجال القانون الدولي العام يولون هذا الموضوع اهمية خاصة لاسيما في العراق ، اذ لا توجد دراسة شاملة حولة ولا التطورات التي حصلت في المرحلة الأخيرة لم تتضمن وضع قواعد موضوعية تجرم الافعال التي تشكل انتهاك لهـذا الحق ما عدا الدراسة التي قام بها الدكتور يـاسر عطيـوي الزبيدي وهي في مجال القانون الدولي حصرا فقد ادى عزوف كتاب القانون الدولي عن الكتابة بهذا الموضوع الى ان يتولى كتاب القانون الجنائي هـذه المهمة ولان هذا الموضوع لـم يـنل حظــه من الدراسة والاهتمام الامر الذي دعانا الى دراسته والبحث فيه بغية الوصول الـى وضــع دراسة معمقة وشامله وجاده للاحد اهم المواضيع المطروحة على الساحة الدولية والتـي تثير اهتــمام المجتمع الدولي وفتح الطـريق امام دراسات مستقبلية حول هذا الموضوع فان هذا البحث يهدف الى توضيح الــدور الذي يقوم به الـقانون الــدولي الجنائي في احاطة حقوق الانسان لاسيما حــق الانتقال بحماية دولية جنائية ويكون ذلك من خلال بيــان الافــعال المكونة انتهاكا لها .

Constitutional impasse for Prime Minister in the Constitution of the Republic Iraq for the year 2005

Adnan A. Aubead

AL-Qadisiya Journal, 2015, Volume 6, Issue 2, Pages 87-129

Stem research problem of loading the Prime Minister responsible for public policy of the state and the performance of ministries without him the powers necessary to do so, as it breached the constitution in this budget breach indicating the side of the base to come in the parliamentary system (where there is power there is responsibility) and the weakest Prime Minister center to the point of preventing it to exercise supervision of the ministries functions only through the same cabinet. It is the sacking of Minister for negligence, but through the house so it was more like Pfazzah ask her protection without movement.
Yes, as it does not allow him under the Constitution, the general policy of the state, despite their claimed responsibility. Or the appointment of military commanders in spite of his general command of the armed forces, or the accountability of Ministers and supervise them in spite of his responsibility for the government's performance in front of the House of Representatives with a note, but he is not free by choice, as well as his management of the country's affairs during the special circumstances, but it depends on a vacation parliament laws to declare a state of emergency and the state of the war two-thirds majority. Also not strong enough to hold the dissolution of the House of Representatives if the latter refused to issue the necessary legislation for the success of his ministry and decisions in functions to adjust the security and superimposed and development and raise the standard of living of the individual and to enter a state of economic recovery and undermine the phenomenon of administrative corruption and others, that the provisions of the Constitution with these tasks and put him in trouble large, so we tried to propose the necessary to get out of this critical solutions which reflect negatively on the government's performance

Regulation of financial disciplines in bilateral parliamentary system (A comparative study)

Maytham H. Sharef; Kanam A. Dahsh

AL-Qadisiya Journal, 2015, Volume 6, Issue 2, Pages 130-187

The financial terms of reference of the most important disciplines enjoyed by the Parliament as it derives its existence from the base does not tax without representation, and this rule demonstrate the Parliament link financial laws, so constitutions provide for the right of Parliament in the executive institution in how to collect the money control and disbursed by the adoption of the state budget which must be submitted to parliament recognizes by him and so that he can monitor how the state for resources and ways of spending, as well as tax and other financial matters Organization State or related to public affairs such as loans report.
If the bilateral parliamentary system worthy of constitutional recognition and regulation of the legal, the goal envisaged by the research are: identify the legal principles that regulate the financial terms of reference between the two dual legislatures control, as subject is of great importance in light of the changes and transformations that have taken place in Iraq, which epitomized the transition from simple State to the Federal State, and the transformation of the PLC system to individual bilateral parliamentary system .
In order to achieve this goal and to take aspects of the issue divided the research on the three sections and a conclusion, we have dedicated the first to study the organization of the terms of reference the two chambers to approve the state budget, and Pena in the second regulate the terms of reference chambers in taxes, and we discussed in the third organization of the terms of reference chambers in public loans, we have followed in our study analytical methodology of the study, which was limited to the comparison of the Iraqi basic Law for the year 1925, and the Constitution of the Republic of Iraq for the year 2005, with comparative models constitutionality of the boss, is the Constitution of the United States, issued in 1787, and the Constitution of the Swiss Confederation in 2000 and in force.
The Esteban us as a result of the research that constitutions in the study tended to involve the Houses of Parliament in the exercise of financial disciplines, with a mile each to tip the People's Councils, except the Constitution of the Republic of Iraq for the year 2005 which was organized by a minor for that matter, so we deposited finale search results that we have reached the proposals, which focused on some of the amendments to the legal provisions contained within the search terms and hope of the Iraqi legislature to take them.

Diplomacy International Organizations (Read the integration diplomatic post)

Anas M. Akram; Husean M. Ahmed

AL-Qadisiya Journal, 2015, Volume 6, Issue 2, Pages 188-227

The International Organization Diplomacy Represent a one of the International Relations Organizing Phenomena, Thus, no one can Ignore the influential and effective role its play in international relation process within its modern forums and aspects that where not yet used, such as (states leaders, public opinion, women participation in diplomatic services, the changing in diplomatic services priorities and tools), as well as the raise of important issues like; human rights, Armaments, space race and environment have made more specialized extent in the diplomatic negotiation process and aspects in order to achieve International Community Goals.
The new world-wide stage of Diplomacy (Int. Organization Diplomacy) have not delete the Bilateral Diplomacy, as well as the conducting of opining diplomacy also not delete the secrecy diplomacy. Shortly, the world today were witnessed a wide diversity in diplomacy means, aspects, subjects and goals.
However, the starting of International organization Diplomacy in its universal frame, but its basic nature represented especially in a cooperation among states which lead to (Integrity).

Early Marriage In Sharia law

Malak J. Hmeady

AL-Qadisiya Journal, 2015, Volume 6, Issue 2, Pages 228-257

The subject of our research (early marriage in the law and the law) and the reason for choosing this research as regards social reality in which we live is related to the family Ashracah, and this marriage is a controversial issue much in every time and place between supporters of the marriage and shows him, and so we made a systematic search containing an introduction the four topics, we dealt with in the first section and the three demands of the concept of marriage and purpose and premise and in the second part, we dealt with the three demands are also pillars of the contract and conditions of either the third section Fajssnah and three demands to early marriage in the law and the law either the fourth section and three demands also dealt when marriage absolutely necessary and Fouad and disadvantages of this marriage the totality of interest we have strengthened Find a statistical study was conducted in one of the personal status courts in the province of Diwaniyah and concluded research conclusion included the results and proposals ..

Leaders face on the implementation of the judicial ruling

Ali N. Hamza

AL-Qadisiya Journal, 2015, Volume 6, Issue 2, Pages 258-291

Is the independence of the judiciary of the elements of the legal state, in addition to being the application of the principle of relative separation between the legislative, executive and judiciary in the contemporary state authorities, and the manifestations of independence of the judiciary implementation of judicial rulings issued by the judiciary for the benefit of individuals or management ;, especially since the judiciary is the protector of the rights of individuals and freedoms of the arbitrariness of the administration which is characterized by the privileges of public authority which is the strongest party in the event of a collision of interests between them and the individuals, but noted that the elimination of the ordinary and administrative, both in many cases issued judicial rulings fair fair individuals towards administration provisions pioneered the application of the law and its sovereignty, but it hits these verdicts judiciary not to be implemented by the private those verdicts issued against the administration department, shows that sometimes the delay in the administration on the implementation of judicial verdicts not in its favor or abstaining or being slow or implemented under-judicial decisions or abstention implicit, and sometimes explicit on the implementation of the court ruling in ways different images are using the administration of the means of public authority and sometimes issuing administrative decisions counter at other times or to withdraw the administrative decision three times or cancel the administrative decision at issue and different contents with the intent to evade the implementation of judicial verdicts not in its favor, and the resort administration to the legislature sometimes to legalize administrative decisions Cancelled by the judiciary and thus non-implementation of judicial verdicts not in its favor, and keep track of a management means also refused to carry out judicial verdicts against them, but the purpose of the face of the intransigence of the administration and its refusal to implement judicial verdicts have found ways friendly contemporary and another for the purpose of urging the administration to implement judicial verdicts in non its favor, including the following way financial pressure and the imposition of fines, some quarters neutral as well as the intervention of a modern actors are aided by the legislative authorities in control to push the administration to implement the judgments, and the arrangement on what progress has divided this research on the first two sections dedicated to the refusal administration implementation of judicial verdicts in non favor and methods that rejection while the second has made it to the ways of confronting the administration refused to implement judicial verdicts not in its favor.

Constitutional and legal regulation of the right question in the Constitution of the Republic of Iraq for the year 2005

Mohammed A. Juray

AL-Qadisiya Journal, 2015, Volume 6, Issue 2, Pages 292-319

The right question is the most important means and oversight tools that allow for a member of parliament to play its role in monitoring the work of the government as it falls this right within his rights exercised by solo towards the Prime Minister and Ministers, both in regular courses or exceptional regardless of whether the question whether orally or in writing because it is designed to question member of the prime minister or the minister is ignorant regarding the affairs under their specialty or check for the incident and arrived at the knowledge or Astalamh about the intention of the government is what has defined the internal rules and regulations of the parliaments of the controls on which shall be exercised this right and back genesis Question originally to Britain, where he practiced the House of Lords for the first time in 1721 and then moved on to the British House of Commons in 1783 and then taken by the French National Assembly until he became a field practiced by all members of parliament in democratic regimes, which provides him and become regulatory means easy has mentioned in the question in the internal regulations of the Iraqi parliaments, which was formed under the Basic Law of 1925 and the Constitution of 1970 and the current Constitution of 2005, but he noted the reluctance of members of the Iraqi Parliament for the exercise of this kind of censorship

Social understanding the legal text Study in the light of the knowledge of the principles of jurisprudence and philosophy of law

Safa M. Fajah

AL-Qadisiya Journal, 2015, Volume 6, Issue 2, Pages 320-355

The first of the foundations of social understanding of the text theory is the Islamic thinker, philosopher, Mr. Mohammed Baqir al-Sadr (Jerusalem secret) who baptized by which to read the legitimate text from the point of customary and based on the fulcrum year and mentality common to the time and place designated and expressed by (the social understanding of the text) .
We tried to do our part in this research that Ntoa this theory on the legal text, what the social worker's role in the understanding and interpretation of legal texts, as is the case in most of the schools affected by the explanation of the circumstances and social concepts, as a teacher of free scientific research and social school.
And we found that social understanding the legal text is not limited to the mysterious only texts, but even in some peremptory texts in significance can not stand on its meaning, but shed social worker, such as the word (Bricks ideals, morals, the market price), although frankly quite Olvazaa only he can not stand on its meaning in an integrated manner, but knowing Akiem things Almassadik customary public morals and the common price in the minds of people in a given time and place.
And can not say that social understanding is custom itself, because there are many differences between them, notably the social understanding is the concepts and ideas shared in the minds of people and affect their behavior, contrary to custom, which is the behavior of Amejrd ideas, and also features a social understanding not binding as the speed of change, as in market prices and wages ideals and the ability of the parties to agree on the succession, and this is contrary to custom, and the extent of binding as slow its formation, and our judicial applications in it.

Constitutional regulation veto laws (A comparative study)

Waleed H. Hamead

AL-Qadisiya Journal, 2015, Volume 6, Issue 2, Pages 356-393

The right to object to the law is one of the basic elements that would strike a balance between the legislative and executive branches in the state, it is not enough for the proper application of the principle of separation of powers to proceed with all terms of reference set by the Constitution, which the authority, but must addition to arm itself in order to ensure its stop the encroachment of other authorities, and from here it seems that the need to provide for such a right appeared.
Therefore, it is imperative to grant the executive branch, represented by the head of state broad powers out its traditional framework of the process of the implementation of laws to wider ranges and welcome to have an active role in legislative work as a cycle to object to legislation submitted by the parliament it, and this in turn leads to find legislation integrated in the public interest, as well as that it is undoubtedly one of the important issues being expressed figment of cooperation and joint contribution between the legislative and executive branches in the law-making process.