كلية القانون
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Item النظام التأديبي لقوى الأمن الداخلي في العراق (دراسة مقارنة)(جامعة النيلين, 2017) علي حسين عليالمستخلص تناول البحث النظام التأديبي لقوى الأمن الداخلي في العراق في دراسة مقارنة وتمثلت مشكلة البحث في أن البحث في موضوع النظام التأديبي لمنتسبي قوى الأمن الداخلي ليس يسيراً، لأن الكتابات فيه تكاد تكون معدومة في العراق على الرغم من انه يثير الكثير من الإشكالات القانونية خصوصاً ما يتعلق بتحديد واجبات المذكورين والعقوبات التي تفرض عليهم، وتمثلت منهجية البحث المنهج التحليلي المقارن، فالقانون العراقي هو مادتنا الأساس مع المقارنة بالقانونين المصري والسوداني وما نصت عليه قوانين الشرطة في كل نظام قانوني من تلك الأنظمة أذ سنأخذ النصوص القانونية في القوانين المذكورة ونقلبها ذات اليمين وذات الشمال بعناية وتمحيص لنستخرج الإحكام العامة ذات الصلة الوثيقة بالموضوع ابتغاء تقييمها من ناحية الصلاحية من عدمها، وفي الاحتمال الأخير سنقدم البديل عساه أن يكون نافعاً مفيداً. وتمثلت أهم النتائج في الرقابة القضائية ذو أهمية كبيرة بالنسبة لجميع النزاعات باعتبارها الدرع الواقي وصماما للامان لحقوق الإفراد وحرياتهم الأساسية، حيث أن تلك الأهمية تزداد في مجال التأديب ذلك أن الجزاء بصفة عامة يعتبر إجراء قضائي يجب أن يصدر من القضاء، إلا أن معظم التشريعات تعهد به إلى السلطة الرئاسية، وبالتالي فانعدام توافر ضمان الحيدة وتمتع الإدارة بالسلطة التقديرية والانحراف في استعمالها في اغلب الأحيان ما ينتج عن ذلك تعسفها بفرض العقوبة التأديبية. ومن أهم التوصيات منح المشرع العراقي سلطة لوزير الداخلية تصل إلى حد عقوبة الطرد من الخدمة لمنتسب قوى الأمن الداخلي، حيث كان من الأولى عدم توسيع سلطات الوزير في توقيع العقوبات وخاصة العقوبات الجسيمة والتي تؤدي إلى قطع الرابطة الوظيفية وحرمان منتسب قوى الأمن الداخلي من عمله وما يترتب على ذلك من آثار على وضعه المالي والذي ينعكس سلباً على من يعيلهم من أفراد أسرته، وان تلك الحالات يجب إحالتها إلى جهة قضائية أو شبه قضائية لحماية منتسب قوى الأمن الداخلي من تعسف وانحراف الإدارة في استعمال سلطتها. Abstract The research dealt with the disciplinary system of the internal security forces in Iraq in a comparative study. The problem of research was that the research on the subject of the disciplinary system for the members of the internal security forces is not easy, because the writings are almost nonexistent in Iraq, although it raises many legal problems, the research methodology is the comparative analytical method. The Iraqi law is our basic article with comparison to the Egyptian and Sudanese laws and the provisions of the laws of the police in each of these legal systems. If we take the legal texts in the laws And carefully turn the right and the north in order to extract the relevant general provisions in order to assess them in terms of validity or not. In the latter possibility, we will present the alternative as useful. The most important results in judicial supervision are of great importance to all conflicts as a protective shield and a safety valve for the rights and fundamental freedoms of individuals. This is more important in the area of discipline. The penalty is generally considered a judicial procedure to be issued by the judiciary. To presidential power, and thus the lack of impartiality and the discretion and diversion of the discretionary administration often result in the arbitrariness of imposing disciplinary punishment. One of the most important recommendations was to grant the Iraqi legislator authority to the Minister of the Interior up to the limit of the penalty of dismissal from service to the Internal Security Forces, where the first was not to expand the powers of the minister in the signing of sanctions, especially serious penalties, which lead to the severance of the functional association and deprive the member of the Internal Security Forces of his work and the consequences This affects the financial situation, which negatively affects the dependents of the members of his family. These cases must be referred to a judicial or quasi-judicial body to protect the member of the Internal Security Forces from the arbitrariness and deviation of the administration in the use of its authority.Item سلطة النيابة العامة في التحري(alneelain, 2000) مجدالدين سليمان احمدAbstract The Attorney General Authority in The Investigation The investigation by attorney general is a great guarantee to equalize between, procedures effectiveness and prevent crimes in one side and a guarantee to the individual right and their freedom in the ether side and new experience in Sudan - in somewhere - and the limitation of the .. legal rules or the legal procedures about the investigation for all of that we choiced the subject. We discussed m the preamble chapter, the different proce0.ural system "the accusatorial systems and inquistorial system and mixed system. And during the research we tried to preface the public allegation in the comparative law. In Roman Law, Greek Law French Law. And English one "in addition to the criminal allegation in Sudan. Also the situation in Islamic shariaa system. In addition to the mam rule of the security corporations to prevent the crimes and detection it when it happens. In the second chapter we researched the police investigations and the attorney general supervision upon them. Also the limitation to the attorney general "by complaint and sanction and the ways to finish the criminal actio.n through "Death - Absoluted adjustment, and public pardon and prescription and the attorney general authority to "Nolle prosequer. After that we discussed the police investigations and the function of then and the powers which the law empower him. And the responsibility of the police men even their administrative responsibility of cri!-11inal responsibility in addition to the compensation of the damages which they caused. In the third chapter we talked about the attorney general investigations, and the main guarantee of the criminal investigations, and the investigation procedures it self, which concluded the view - experience testimony, search warrant also the procedures to insure persons attendance which are "summon, warrand of a rest, remand in custody and prevent some people from travelling. We recommended to use this procedures but which money. guaranttes to do an affective - procedures on one side, and quartette the freedoms and rights of the persons in the other side . . An finally we talked about the attorney general power if the criminal investigations is finished, by commitment to the court if there are a sufficient evidence or discharge the accused when there is away to establish the action.Item فلسفة عقوبة السرقة الحدية واثرها في منع جريمة السرقة(alneelain, 2007) ياسر عبدالله ابراهيمItem حقوق الانسان ضماناتها ,ومبررات القيود الواردة عليها في دستور المملكة الاردنية الهاشمية(alneelain, 1998) محمد سليمان هلالاتItem رقابة الادارة على تنفيذ نقل العقد العام بولاية الخرطوم(alneelain, 1997) ميرغني عبدالله داؤودAbstract Transport is A Prerequisi~For Civilization. It is A Fundamental Condition For Social And Economic Progress. Transport is The Life. Line Of Modem Day Societies And The ToTal Point Of Human History And Development. Transportation in Sudan is Of Even greater Importance Due, To The Huge Area Of Sudan And HenCe The Importance Of Transport Costs Fo~ Industry , Agrieulture And Commerce. Transport Therefore is An Integral Part Of Economic Planning. In This Paper, Life Tried To Focus On The Administrtion And Regulation Of pJblic Transport, And The Historical Development Of This Sector in The Country At Large, And Khartoum State in Particular. I have Also Considered The General Theorjof the Public Transport Contract, Which is Amultifarious Contract. ... Part Civil - Where Freedom Of Contract' Between The User And The Provider isc14r#~!~5li Glr\d. Part An Administrative Contract - Where Conditions A11d~6bligations For Both User And Provider is Set Out By An Administrative Body. I Concluded That There is A need To Strengthen The Administrative Part Of The Public Transport Contrajd in The Last Chapter I looked At The Diffener,t Legeslative Bodies Which Regulates This Sector By Laws, .~-'~ ... ,--- c" -~---'"; "And Circulars, And The Range And Scope Of Their Powers Over it. The Multiplicity Of These Legeslative And Administrative Bodies At The Central, Sta!.{ll And Local Levels Often Leads To Contradictions And Conflia;And Creates Negative Results. the Need Therefore, Arises For A Comprehensive Legislation To SimplifY, Coordinate And UnifY All Aspects Of Administration Of This Sector.Item سلطة النيابة العامة في التحري(alneelain, 2000) مجدالدين سليمان احمدABSTRACT The Attorney General authority in the investigation The investigation by attorney general is a great guarantee to equalize between, procedures effectiveness and prevent crimes in one side and a quarantee to the individual right and their freedom in the ether side and new experience in Sudan- in somewhere- and the limitation of the legal rules or the legal procedures about the investigation for all that we choice the subject. We discussed in the preamble chapter, the different procedural system "the accusatorial systems and inquisitorial system and mixed system. During the research we tried to preface the public allegation in the comparative law. In Roman, Greek French, and in English law one in addition to the criminal allegation in Sudan. Also the situation in Islamic shariaa system. In addition to, the main rules of the Security Corporation to prevent the crimes and detection it when it happens. In the second chapter we researched the police investigations and the attorney general supervision upon them. Also the limitation to the attorney general "by complaint ... etc . And the ways to finish the criminal action through "death - Absolute adjustment, and public pardon and prescription and the attorney general authority to "Nolle prosequer". After that we discussed the police investigations and the function of him and the powers which the law empower him. And the responsibility of the policemen even it's administrative responsibility of criminal responsibility in addition to the compensation of the damages which they caused. In the third chapter we talked about the attorney general investigations, and the main quarantee of the criminal investigations, and the investigations procedures it self, which concluded the view, experience, statement, inspection. Also the procedures to msure. persons attendance which are "summon, warrant of a rest, remand in custody and prevent some people from travelling. We recommended to use this procedures but with many Quartettes to do an affective - procedures on one side, and quartette the freedoms and right of the persons in the other side. Finally we take about the attorney general power if the criminal investigations are finished, by commitment to the court of there are a sufficient evidence or discharge the No accused when there is _ way to establish the action.Item معيار تحديد العمل الاداري(alneelain, 2000) ليلى محمد متوليAbstract The Criterion of Definition of the Administrative Action The jurists classify the authorities of the state into three categories; legislative, judicial and executive authorities. The legislative authority enacts the laws, while the judicial authority applies those laws in deciding the cases brought before the courts. The function of the executive authority comprise of two types of actions namely. The acts of government aimed at ensuing the safety of the fabric of the state. Regulating and overslering the proper functioning of the public authorities, securing the safety of the state both internally and externally as well as maintaining the relations with foreign states, and the administrative actions, which consist of daily applications of rules, regulating the relations of the individmils with the central and local authorities, satisfying the public needs of these individuals in addition to safeguarding the security and tranquility of the society. Though the jurists of the public law had laid down the principle of separation of powers between the a fore mentioned legislative, judicial and administrative powers, yet this separation is not absolute. Each of the three authorities are empowered to function in the domain of the other authorities in exceptional cases. Hence the need arises to flX a criterion for distinguishing between these functions. Both the jurisprudence and the judiciary were equal to the task of flXing such a criterion since identifying the administrative action is of paramount practical importance. This importance stems from the fact that variant legal systems apply to each of the three functions. The delimitation of the nature of the administrative action " :as~ for a specific criterion capable of distinguishing the said administrative action from both the legislative and the judiCial functions. This thesis attempts to suggest· such a criterion which, would hopefully help to reveal the nature of the administrative action and distinguish it from various functions of the state. The delimitation of the administrative action helps in recognizing the relation between the administrative function on the one hand and the legislative and judicial functions on tlle other and tends to illustrate the legal power, which t1t~ , administrative action enjoys.Item حجية الامر المقضي(alneelain, 2001) حافظ جعفر ابراهيمAbstract This study aimed at clarifYing the characteristics of the rule of . Res Judicata. In Sum, the rule of Res Judicata is a procedural rule with a restrictive role of precluding the courts of re-examining preadjudicated cases. It is my conviction that all and every attempt to deny Res Judicata, its procedural nature has met with little, if any, success. .' The plea of Res Judicata in my view, is a appertaining to public policy, and thus is capable of application by the courts of their own volition. i.e. without being pleaded by the parties. Res Judicata is applicable to Judicial decisions are appealable, non- appealable, already appealed-from or exhausted the time limit for appeal. It is agreed that Res judicata Confers to default decisions . . validly decree and works as a tool against contradicting decisions. I concluded that the rule of Res judicata should be extended to orders issued in execution proceedings as well as other judicial decisions. This research led me also to' conclude .that the disparity of object in the two cases should not be taken as a bar to the application of Res judicata once the cause of action is identical in both cases. For Res Judicata should be governed by the unilarity ofthe cause of action rather than by the similarity ofthe subject-matter. The tendency of confining the application of Res Judicata to a specific part of the judidical decision, be it the wording of the judgment, the ratio decidendi, the cause of action or the facts of case . is, to my judgment, of a minute justification. To me, the long and short of it, is that wherever a final judicial decision is held on a disputed matter between the same parties, that decision becomes Res Judicata .Item منازعات التنفيذ في ضوء الطبيعة القانونية للتنفيذ القضائي(alneelain, 2010) عزالدين محمد احمد الامينItem سلطة القاضي في تفريد العقوبة في الشريعة الاسلامية والقانون الوضعي(alneelain, 2000) اسعد عبدالحميد ابراهيم محمد.> ... This research handled the theme, of "The Powers ,of the Judge ,in Setting JlD'''~'L ,-;r,( ',' .~' . the Punishment in Islamic Sharia and the'Objective:Law." ','" '\~7 - . ";; -(::;:~ ,'.' ~ . " . .'"{,i,~ The research deliberates the :discretionary po~~~lii'oiigthe~;imina:l court , , " '~""1!,\i " " judge, through which lie a:~l"ives at the fair judgement ~'d' Su'itable penalty, for the person of the ~~minal' and his: l?U;rouriding9ircums~:i!nces. This'is ',,,.rri ved at by the applicatio~: of the t~t on the i~di v:td~ai inc~~'ents', ,so as to'-',?-chieve . '." . . that end. , . ,,' . " .';" In essence, this means 'knowing', the extent oi' ·the abi,+itY,o'f the -judge,,·to _ • ". ,t" .~,~- ~V·., . ,pare between' the actual circumstances presented to ifim,itarid.'those of the -'. .; " The pUl"pose is :to choose the' criminal penalty; whether,' that' was a punishment, precautiop.!'Xy arrangement or a fate w.. i thin the legally -determined p. :r:." o,yi~i6.n s; a way which may, accomplish tlie indiVidual and social interests. " As the criminal court judge is the one who the persons who commit'the unlawful acts are' presented to, he must be able to monitor their circumstances and forec~st about the consideration which determine the just and. suitable ,ment'for ·each offender. So, he Can arrive at justice and SUitability of punishment. The research is divided into three ;Chapters. Chapter one handled the status or"the criminal court judge and his discretionary powers in setting apart 'the puni':ipme;'t in Shari a and the objective law". It dealt with the quiddity of the judiciary; as far as the definition and the appointment ~nd dismissal of the' judges and the powers of the criminal court judge in the setting apart of 'the punishment. It was then exposed that the discretionary powers of the judge, in the Islamic Sharia, is confined to 'Tazeer' crimes; but, not including the penalties for 'Hudood' and 'Qasas' crimes. Meanwhile, these powers and inclusive of all penalties in the objective law. ; Chapter two discussed; "The criminal policy and the setting apart of punishment in the Sharia and the Law". It dealt with the criminal policy and 'its relation'to setting apart of the punishment; together with the criminal under the criminal policy. Hence, the essenCe of the criminal policy and the types of criminal penalty of precautionary arrangements were exposed. Chapter three, which is the last chapter, dealt with the topic of (setting apart of punishment(. The nature of this topic about penalty was discussed, 'together with its controls and teChniques. There are several kinds of setting apart, of which is the judicial type. There are also great numbers of controls which may guide the judge in setting apart the penalty. There are also great numbers of ways and means which the legiSlator grants to the judge, to enable to the setting apart of the penalty. t., •• -~2 - , .. The findings of the research made way to recommendations; the most important of which are as follows:- 1. The qualifying of the criminal court judge and his specialization are important guarantees of judicial setting apart in Islamic Sharia and objecti ve laws. 2. The discretionary powers of the setting apart of the penalty, have no contradiction with the principles of Sharia. This is because these powers operate under the law, in accordance with certain limits. Therefore, they are considered discretionary power, and not dete~inistic powers. 3. The discretionary powers of the judge, in the setting apart of the punishment in Islamic Sharia, are expressed in the 'Tazeer' crimes ,only; but not in 'hudood of qasas' crimes. Yet, they are inclusive in all crimes in the objective laws, save for any exceptions provided for. 4. There is a rational criminal policy in the Islamic criminal system. \, This is why it is a consistent and stable system for long years, as opposed \ to the objective laws. , '\ 5. The modern criminal policy has been affected by the criminal and so, cial sciences. It has become interested in the causes which lead to crimes. Tne purpose is to confront these causes~ for protective and treatment aims. \ 6. The modern modern criminal policy cares for the personality of the crlminal; for his re-adaptation again in society. Thus, the setting apart of th~ punishment is considered one of the main basis for achieving this objecti , in ,which the offender finds the suitable penalty. , 7. The judicial setting apart has many controls, whether these were to the p'erson of the offender, or the crime. The judge is guided by these 'controls, so that he may not lose the way and transfers his powers to despotism and having his own way. 8. For the judge to practise the judicial setting apart, the legislater 'must gran,t him a group of penal systems; to avail him of choosing the suitable penalty for the personality of the offender and the circumstances of the crime, such as, the commutation of the penalty or inflicting a severe penalty.
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