MIsan Journal of Comparative Legal Studies
https://uomisan.edu.iq/law/mjcls/index.php/mjcls
<p>The journal was founded in 2020 under the name of Misan Journal for Comparative Legal Studies. Its function is to publish comparative legal studies and research. It is a refereed journal recognized by the Ministry of Higher Education and Scientific Research and is issued periodically in physical or electronic format, and it can be issued in both ways together. The journal publishes two issues per year and it is semi-annually. </p>كلية القانون - جامعة ميسانen-USMIsan Journal of Comparative Legal Studies2521-4675<div class="page-header"> <h1>Licenses and Copyright</h1> </div> <div class="page-content force-font"> <p>The following policy applies in MJCLS:<br />MJCLS applies the Creative Commons Attribution (CC BY) license (https://creativecommons.org/licenses/by/4.0/) to articles and other works we publish. If you submit your paper for publication by MJCLS, you agree to have the CC BY license applied to your work. Under this Open Access license, you as the author agree that anyone can reuse your article in whole or part for any purpose, for free, even for commercial purposes. Anyone may copy, distribute, or reuse the content as long as the author and original source are properly cited. This facilitates freedom in re-use and also ensures that MJCLS content can be mined without barriers for the needs of research.<br />If you have written permission to do so, yes. If your manuscript contains content such as photos, images, figures, tables, audio files, videos, etc., that you or your co-authors do not own, we will require you to provide us with proof that the owner of that content (a) has given you written permission to use it, and (b) has approved of the CC BY license being applied to their content. We provide a form you can use to ask for and obtain permission from the owner. If you do not have owner permission, we will ask you to remove that content and/or replace it with other content that you own or have such permission to use.Don''t assume that you can use any content you find on the Internet, or that the content is fair game just because it isn''t clear who the owner is or what license applies. It''s up to you to ascertain what rights you have—if any—to use that content.<br />Many authors assume that if they previously published a paper through another publisher, they own the rights to that content and they can freely use that content in their PLOS paper, but that’s not necessarily the case – it depends on the license that covers the other paper. Some publishers allow free and unrestricted re-use of article content they own, such as under the CC BY license. Other publishers use licenses that allow re-use only if the same license is applied by the person or publisher re-using the content.If the paper was published under a CC BY license or another license that allows free and unrestricted use, you may use the content in your MJCLSpaper provided that you give proper attribution, as explained above.If the content was published under a more restrictive license, you must ascertain what rights you have under that license. At a minimum, review the license to make sure you can use the content. Contact that QJAS if you have any questions about the license. If the license does not permit you to use the content in a paper that will be covered by an unrestricted license, you must obtain written permission from the publisher to use the content in your MJCLS paper. Please do not include any content in your QJAS paper which you do not have rights to use, and always give proper attribution (https://www.uomisan.edu.iq/law/mjcls/process?ethics) .<br />If any relevant accompanying data is submitted to repositories with stated licensing policies, the policies should not be more restrictive than CC BY.<br />MJCLS reserves the right to remove any photos, captures, images, figures, tables, illustrations, audio and video files, and the like, from any paper, whether before or after publication, if we have reason to believe that the content was included in your paper without permission from the owner of the content.</p> <p>How to Cite<br />E.A.Makttoof , Kassim J.K , K.H (2020). Distribution of different forms of phosphorus in calcareous soils from middle and south of Iraq . Al-Qadisiyah Journal For Agriculture Sciences,10, 1, 2020, 293-303.</p> </div>Violating children's privacy over the Internet in Iraqi legislation (A comparative study )
https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/31
<p>The right of privacy is one of the rights attached to human beings and one of the <br>most important and controversial rights among the jurists as it differs from one <br>community to another and from one period to another. Most of the studies have <br>dealt with the right of privacy to adults and have kept an blind eye to the <br>violations of children especially in light of the technological developments that <br>the world has witnessed and which have dangerous impacts on the lives of <br>children when they use the Internet and the crimes that they are exposed to <br>through it. Therefore, legal trends emerged calling for the need to protect children <br>from these violations and work to enact laws as well as lay down penalties for the <br>perpetrators of these crimes. However, despite the countries' awareness of the </p>Saja Faleh HusseinHussein Jamil Matar
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2022-09-122022-09-121285010.61266/mjcls.v1i2.31The arbitrator’s commitment to impartiality and independence and the consequences of breaching it (A comparative study)
https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/33
<p>Since arbitration is a means of settling disputes, thus it is considered an <br>alternative judiciary in international trade disputes. Like ajudge, an arbitrator <br>must enjoy impartiality and independence in giving a judgment to end the <br>disputes away from affections or connections, or being affected by any <br>relationship that binds the parties to disputes, whether the arbitrator is chosen or <br>they do not intervene in choosing. Further, the effect of the condition of <br>impartiality and independence is not necessary in strengthening the bonds of <br>mutual trust between the arbitrator and the parties of the dispute during the <br>course of the arbitration case, and so that the arbitrator avoids the possibility of <br>requesting his dismissal for lack of impartiality and independence. The impact of</p>Anwar Muhammad Hadi
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2020-06-012020-06-0112519610.61266/mjcls.v1i2.33Constitutional and legal protection of the right to peaceful demonstration in Iraq (a comparative study)
https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/35
<p>Peaceful protest is a means of expressing freedom of opinion guaranteed <br>by constitutions and domestic and international laws, as well as international <br>conventions that have explicitly declared the right to peaceful protest; in <br>fulfillment of the legitimate demands of individuals on the condition of preserving <br>public order and morals inside the country, and this is stipulated in the effective <br>constitution of the Republic of Iraq of 2005; Article (38) which stipulates that <br>“the state shall guarantee in a manner that does not violate public order and <br>الؼراق<br>جامؼح مٍسان – كلٍح الماوىن<br>مجلح مٍسان للدراساخ الماوىوٍحالمماروح<br>ISSN-2521-4675 <br>77<br>morals: ... Third: freedom of assembly and peaceful demonstration, and it shall <br>be organized by law.” This means that the legislator explicitly and clearly <br>confesses of the freedom of peaceful protest, contrary to what was mentioned in <br>previous Iraqi constitutions. However, the defect in that text is reflected in the <br>legislative deficiency which is represented by the failure to legislate that law <br>which organizes the practice of the freedom of protest until now<br>Based on what mentioned above, the research deals with the attitude of <br>the Iraqi constitutions, whether they are enforceable or canceled, and discusses <br>the weaknesses and strengths in each of the Iraqi constitutions related to the <br>practice of that freedom. This is due to the fact that since the end of the year <br>2013, Iraq has witnessed many demonstrations and sit-in, the most recent of <br>which was the October 2019 demonstrations, which demand - in their entirety -<br>reform, combating corruption, providing job opportunities, and improving the <br>quality of services. As a result of those demonstrations, many protesters were <br>killed and injured, and that prompted the demonstrators’ demands to the <br>resignation of the government</p>Saad Abdullah khalaf
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2020-06-012020-06-01129713510.61266/mjcls.v1i2.35The role of the public administration in achieving the goals of criminal sanctions (A comparative study)
https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/36
<p>The public administration has a role in achieving the goals of criminal sanctions represented by <br>achieving those goals inside and outside the correctional institution, since the implementation <br>of penalties is an important matter for society and inmates, as it contributes to their reform, <br>rehabilitation, and thus they will leave the correctional institution normal who do not return to <br>committing crimes again. Consequently, the public administration must provide suitable places <br>for its inmates, as the implementation of criminal sanctions within the correctional institution is <br>represented by the administration carrying out a number of punitive procedures and activities <br>for the sake of reforming and rehabilitating them</p>Russell Saadoun HussainAmer Zughayer Muhaisen
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2020-06-012020-06-011213615810.61266/mjcls.v1i2.36The legal system for an employee's duty to guard his public behavior Comparative study
https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/37
<p>The employee is the state's tool in carrying out public tasks and duties. It <br>is the mainstay of the administration and its means in administrative reform, <br>which is the main starting point for political, financial and social reforms, that <br>the public authorities can implement, as through work implementation and the <br>provision of public services to all people without favoritism or discrimination <br>on the basis of sect, color, gender, race, or religion, Therefore, it is <br>necessary to guarantee the duty of the employee to watch his/her public <br>behavior in carrying out his/her tasks and job duties away from political <br>considerations and partisan affiliations, since job is a public service that <br>needs values, ideals and virtues, and hence the duty of reservation is <br>essential in the public office</p>Ahmed Qassem AliAli Dohi Adafa
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2022-09-202022-09-201215919710.61266/mjcls.v1i2.37The role of arbitration in the field of administrative contracts in Iraq
https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/41
<p>Judiciary is the primary means of settling disputes that arise between <br>individuals and establishing justice between members of society. <br>However, due to long duration, the accumulation of cases at the courts, <br>and the slow pace of procedures, all of this prompted the search for <br>another way to resolve those disputes at the least possible time so that the <br>legal centers can stabilize between the disputants. Hence, comes the role <br>of the arbitration system as an ideal and easy way to resolve such <br>disputes, which is an exception from the original, which is judiciary, <br>which has the responsibility to settling contract disputes ,(in Iraq, the <br>ordinary judiciary deals with this). Therefore, arbitration has become a <br>necessary requirement in developing countries that are looking to <br>strengthen their national economy, especially if its national capital is <br>unable to meet their basic needs. However, this raised the ire of judiciary <br>in comparative countries that refused to resort to arbitration in <br>administrative contracts under the pretext that this affects the sovereignty <br>of the state, requiring some conditions and excluding some contracts, as <br>in France and Egypt. In Iraq, the legislator allowed resorting to <br>arbitration in disputes, regardless of the nature of the contract. This was <br>mentioned in special articles and under the supervision of the ordinary <br>judiciary. Accordingly, and in response to the economic conditions in the <br>country and what is required to encourage investment as well as attract <br>foreign companies and funds in order to strengthen the economy, absorb <br>unemployment, and employ the hands, the Iraqi legislator issued the <br>Investment Law No. 13 of 2006, indicating the possibility of the <br>conflicting parties to resort to internal and international arbitration, <br>especially since international companies fear the internal judiciary on the <br>one hand, and the protection of their capital on the other hand.</p>Ali Mohsen Taweeb
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2020-06-012020-06-011219824010.61266/mjcls.v1i2.41The Law to be Applied to Fault Liability for Biological Damage Prepared by
https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/42
<p>Biological damage is the problem of the modern age and a common danger <br>threatening the existence of the world, both states and individuals, because of the <br>use of modern technology and the industrial development, which depleted and <br>contaminated natural resources so much that such damage has become a threat to <br>the life of humans and a danger that may cause the extinction of many living <br>beings. Civil fault liability plays a key role in prevention biological damage by <br>imposing it on anyone exceeding the limits of using the rights granted to him and <br>violates legislature orders. This means that individuals right to live in a society is <br>restrained by the obligation of not contaminating the environment with smokes, <br>lethal gases, and toxic materials, as well as genetically-modified creatures, which <br>may negatively impact biological diversity. <br>Given that biological damage is a cross-border one, liability for biological <br>damage raises a problem related to the extent of determining the law to be <br>العزاق<br>جامعت مٍسان – كلٍت المانون<br>مجلت مٍسان للذراساث المانونٍتالممارنت<br>ISSN-2521-4675 <br>132<br>applied, as the time, location, or the causing act may delay or be difficult to <br>identify. <br>In order to identify the law to be applied to such liability, this paper is divided <br>into two sections. Section one examines the traditional trends in identifying the <br>law to be applied to liability, while section two shows the modern trends in in <br>identifying the law to be applied to liability. <br>Key words: conflict of laws, liability, biological damage, biological diversity</p>Umm Kulthum Sobeih MuhammadAsma Saber Alwan
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2020-06-012020-06-011224126410.61266/mjcls.v1i2.42A Mother's Crime to Her Newborn Child in the Iraqi penal Code and other countries. (comparative study)
https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/43
<p>The penalty for premeditated murder in the Iraqi Penal Code is death or life <br>imprisonment. The legislator went further than that through the provision (D) of <br>the Article (406), which states (Capital punishment shall be imposed on anyone <br>who intentionally kills a soul in one of the following cases) (d / If the murdered is <br>one of the killer's descents ); we see in this article that the legislator has <br>emphasized the punishment and considers it an aggravating circumstance when <br>committing the crime of murder, while we find that there is an explicit legal <br>article that excludes the mother from the punishment for premeditated murder, <br>which is the Article (407) that refers to (punishing with imprisonment for a period <br>not exceeding ten years or imprisonment for a period of no less than one year <br>انؼزاق<br>جايؼح يٛظاٌ – كهٛح انمإٌَ<br>يجهح يٛظاٌ نهذراطاخ انمإََٛحانًمارَح<br>ISSN-2521-4675 <br>562<br>for the mother who kills her newborn child out of shame if she was pregnant <br>with an incest child). <br>So the legislator gave the mother a legal mitigating excuse and determined <br>the crime of killing her newborn child to avoid shame in clear terms through the <br>provision of the Article (407). So, he/she did not prevent her from fully criminal <br>responsibility whereas the penal laws of many countries have indicated that the <br>killing of a mother to her newborn child is a crime and set their own legal terms <br>as they disagreed with certain details and reasons such as (Jordan, Switzerland, <br>France, Lebanon, Syria, Morocco, and Iran). <br>There was also another opinion by the Islamic jurisprudence in this case, as it <br>sometimes gave the right to the father to kill the child and at other times it gave <br>the right to the mother, and the third opinion included the two to kill the <br>newborn. Here the penal laws also have different stances regarding different law <br>sources. Some of them take jurisprudence and Islamic law as the main source, <br>and others rely on situational sources</p>Mortada Hassan Jassim
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2020-06-012020-06-011226529310.61266/mjcls.v1i2.43Setting the electronic editings in the light of the rules of proofing legal acts under the Iraqi legislation (comparative study)
https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/44
<p>في هذه الدراسة ، حاولنا تسليط الضوء على حالة المستندات الإلكترونية في<br>في ضوء قواعد إثبات الأعمال القانونية. وتبين ان وجهة نظر المشرع<br>تم تغييره إلى دليل مكتوب من المفهوم التقليدي إلى المفهوم الواسع<br>اولا: اشتمال الدليل الالكتروني على الرغبة في تطوير المجال القانوني في ضوءه<br>التطور التكنولوجي الذي كان له تأثير كبير في مجال<br>الأدلة ، حيث دفعت الدول المعنية إلى تقديم حجج لإثبات ذلك<br>المستند الإلكتروني ، ووضعه في مكان واحد مع المستند التقليدي ،<br>لذلك أدت هذه السياسة التشريعية إلى تطور متميز ل<br>الوصول إلى المجال الإلكتروني ومواكبة مستجدات التجارة الإلكترونية ، فهو حقل خصب لاستخدام هذه التقنية ، أكثر من كونها قانونية<br>الأفعال</p>Jaber Hussein AlAhmed Hamza Ali
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2020-06-012020-06-011229432810.61266/mjcls.v1i2.44Protected interest in mass grave crimes (comparative study)
https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/45
<p>The basic interest that the legislator must protect and through which the stability <br>and continuity of society is achieved is not to attack others, whether they are alive <br>and dead and because crimes are a violation of the legal rules that the law <br>criminalizes and are the essence and content of these legal rules, we find that the <br>Iraqi legislator as he legislates a specific legislation, it takes into account the <br>interest which is represented by the satisfaction of a specific need of human <br>needs, which is represented here by the right to live, and not violingat of what is <br>protected from these interests. It is clear that the main justification for the <br>intervention of the legislator to issue legal legislation is the existence of a minimum <br>level of interest, and on the contrary in the case of absence of interest, then the <br>legal justification for the issuance of the legal legislation is absent. Within the <br>scope of criminal legislation, when the law gives protection to a specific interest, <br>العراق<br>جاهعة هيساى – كلية القانىى<br>هجلة هيساى للدراسات القانىنيةالوقارنة<br>ISSN-2521-4675 <br>993<br>then this interest turns into a legal interest and violating it constitutes a crime as in <br>the crime of murder or injury, and an assault on certain rights that are to be <br>determined by the legislator, when the legislator wants to criminalize murder, <br>he/she bestows protection on the interest of the right to live. <br>The scope of the protected interest in the crimes of mass graves is the acts that <br>achieve these crimes which violate the interest worthy of protection, which is here <br>represented by the crimes that occur at mass graves.So, the aim of this study is to <br>know the nature of the interest that protects against committing crimes on these <br>graves, and to clarify the legislation which criminalize such acts affecting the life <br>and stability of society, as well as to protect evidence from which it is possible to <br>infer the identity of the victims, and the study is divided into two sections</p>Russell Faisal Dalloul
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2020-06-012020-06-011232935510.61266/mjcls.v1i2.45Trump Declaration on Jerusalem in View of Public International Law
https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/46
<p>The research deals with President Donald Trump's declaration on Jerusalem in <br>a speech delivered on Wednesday evening, December 6, 2017,in which he <br>announced Jerusalem as the capital of Israel. It is in a historic and dangerous <br>decision that turns a period of decades of American policy that could lead to a <br>new wave of violence in the Middle East. This decision reflects a "new approach" <br>to the Arab-Israeli conflict. Trump thus has taken a decision that all US <br>presidents have postponed since 1995, emphasizing that he only fulfills a <br>promise that his predecessors "failed" to fulfill. The study deals with this decision <br>in terms of its legality and its consistency with the rules of international law and <br>United Nations resolutions, in an attempt to raise the issue for objective <br>discussion. The research is divided into two sections:<br>The first section: Jerusalem in the international law<br>انؼراق<br>جامؼت ميسان – كهيت انقاوىن<br>مجهت ميسان نهذراساث انقاوىويتانمقاروت<br>ISSN-2521-4675 <br>653<br>The second section: the legitimacy of Trump's declaration on Jerusalem<br>The research concluded that the decision violates the rules of international law <br>and resolutions of international legitimacy, as well as the Oslo Accords between <br>the Palestinian and Israeli parties under American auspices, and constitutes a <br>threat to a just, comprehensive and lasting solution to the Palestinian case</p>Mohamed Tohme Gouda
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2020-06-012020-06-011233637510.61266/mjcls.v1i2.46Protecting civil and cultural objects under the provisions of the international humanitarian law (A comparative study)
https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/47
<p>The protection of civilian and cultural objects and the refusal to direct attacks <br>against them is a pillar in international law to protect them and provide the <br>necessary protection to groups who are not directly involved in the fighting or are <br>unable to participate. Accordingly, international humanitarian law is described as <br>the law of armed conflict, meaning that it is applied in time of war, whether the <br>conflict is international or Not international. States and individuals are obligated to <br>apply the rules brought forth by international humanitarian law, as they are of a <br>mandatory nature, and international humanitarian law has prohibited indiscriminate <br>attacks, prohibits acts of coercion, torture and collective punishment, and prohibits <br>retaliation, hostage-taking and population deportation, and because humanitarian <br>law protects the civilian population in general, it is considered the best method To <br>provide protection to victims of conflict</p>Fadhil Abdul-Zahra Al-Gharawi
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2020-06-012020-06-011237640310.61266/mjcls.v1i2.47