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 ميسان en-US MIsan Journal of Comparative Legal Studies 2521-4675 <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. 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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> Difficulties in retaliating against the perpetrators of the Speicher crime before international and domestic judiciary https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/264 <p>What resulted from ISIS crimes and violations, especially the crime of Speicher, requires the mobilization of all international efforts, as well as the responsibility of the national government, in chasing down the perpetrators of these terrorist crimes, and arresting them to achieve the right, in a way that enhances the application of the necessary legal rules, so activating the principle of international and internal criminal responsibility for individuals will contribute Significantly in providing the desired protection, especially for the group concerned with the research, who are the unarmed military, based on international and national rules, by imposing punishment on the perpetrators of these crimes, in order to achieve international peace and security</p> Ansam Qasim Hajim Al-Aboudi Copyright (c) 2024 2023-12-21 2023-12-21 1 9 58 91 10.61266/mjcls.v1i9.264 Intervention of the constitutional judiciary to protect constitutional family security in light of constitutional societal values and morals (a comparative study) https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/275 <p>One of the most important goals of constitutional legislation is to provide protection for the social system, ensure the enjoyment and stability of rights and freedoms, and achieve equal access to them. The authorities are obligated to obey the provisions of the Constitution, adhere to its limits, follow its provisions and rules, and not infringe on the rights of individuals. Therefore, constitutional security is considered a basis for protecting basic rights and freedoms. So that individuals are reassured that their constitutional rights and positions are secure and stable, and that various constitutions grant special protection to the family; Because it is the foundation of society, and its foundation is morals, religion, and patriotism, and for this reason the constitutional legislator guarantees from the constitutional texts what guarantees its security in accordance with the above-mentioned rules, aiming thus to secure its establishment, upbringing, stability, and the safety of relations and bonds between its members, which requires the constitutional judiciary to take into account, with its provisions, the security of the family, considering Its constitutional texts are well-established and relate to the highest values and principles of society and the state, and the legislator must distance himself from anything that undermines the structure of the family, weakens it, or leads to its deviation, otherwise his behavior will be considered a violation of its unity, which is considered a constitutional goal in itself, in addition to being borne by the other constitutional texts allocated To protect freedom, personal privacy and human dignity, constitutional security for the family must be observed</p> Hayder Ali Dhayef Copyright (c) 2024 2023-12-21 2023-12-21 1 9 114 164 10.61266/mjcls.v1i9.275 Provisions Regarding Criminal Liability for Assault by Vaccination Against Viruses https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/276 <p>Assault with contagious and deadly viruses takes countless forms and forms, ranging from intentional enemies to unintentional assaults, where the perpetrator in the first follows the path of intending and deliberately criminal behavior, as well as intending the criminal result resulting from this behavior, which is infecting the victim of the assault with vaccination, with the intention of taking his life. Or afflicting him with a permanent disability that makes him unable to perform his work, or giving him viruses accompanied by a purchase, and other times it is viruses are accompanied by purchase, and other times infection with viruses occurs through negligence and unintentional error, where the offender behaves willingly without intending the consequences resulting from this behavior, complete with negligence, recklessness, and failure to observe the duties of caution. And be careful. Intentional criminal behavior and its consequences have become a matter of jurisprudential dispute. The reason for this is that most laws do not include criminal provisions that apply in the event of intentionally infecting others with the virus or negligently infecting them. In light of this deficiency, in general, and with the seriousness of crimes committed through the use of viruses, some countries have responded with special legislation that criminalizes such behavior. &nbsp;Intentional assault with viruses and microbes has multiple forms that vary and multiply according to the legal condition corresponding to the criminal incident, including crimes of murder by poison, crimes of giving harmful substances, the crime of intentional murder, the crime of assault and intentional wounding, as well as crimes of terrorism, genocide, and injury through non-therapeutic medical experiments, and all of these descriptions. The new French penal code applies to them and Egyptian, especially crimes resulting from injury Intentional infection with viruses and deadly diseases</p> Muammar Khaled Abdel Hamid Raad Fajr Fateeh Copyright (c) 2024 2023-12-21 2023-12-21 1 9 165 186 10.61266/mjcls.v1i9.276 The Proposed Solutions for Organizing the Relationship between Federal and Local Governments (A comparative study) https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/277 <p>The division of government between the government and the local municipalities is considered an executive order in the political and administrative governorates of any institution that adopts a system of administrative divisions. Because the participation of this organization lays the foundations and laws for activating the powers and powers of each of the two bodies. The importance of these agreements lies in achieving a balance between preserving the unity of the state and meeting local needs and diversities, as the basic points in these agreements include: There are basic and legal rules for advancing the government’s powers and local applications in a precise and precise way to avoid conflicts and overlaps in powers. The exclusive powers that each party possesses must also be determined, such as improvement and defense, which are often exclusive to the church</p> Russel Qasim Laibi Osama Karim Badn Copyright (c) 2024 2023-12-21 2023-12-21 1 9 187 219 10.61266/mjcls.v1i9.277 The Legal System of Financial Credit (Comparative Study) https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/278 <p>The financial credit is an estimate of the state's valuation statement of the state's expenditures and income for a future period of one year, which requires the approval of the legislative authority, which is considered a major tool of the state's financial tools through which it operates. To achieve the social and economic goals needed by the state, financial credit goes through four stages, starting with the first stage called the preparation and preparation stage, and the second stage called the approval stage. Finally, the implementation stage.</p> <p>So, increase the financial credit importance, and affect with state economic situations, and increase its effect on the economic and social areas in the state, and became a tool used by the state to realize the aim of the financial, economic, and social policy</p> Zahraa Hishaam ALkazzaz Ahmed M. AL Rubaie Copyright (c) 2024 2023-12-21 2023-12-21 1 9 220 250 10.61266/mjcls.v1i9.278 The Influence of Petroleum Legislation on the Management of the Oil and Gas Contracts (Comparative Study) https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/279 <p>The transformation that Iraq is witnessing in the managing the Petroleum sector, after signing Iraqi petroleum licensing Rounds on 2010, real need raised for developing the legislation to accommodates the transformation, which focuses in most of its articles on the global methods that are circulated among the oil extractive industry in terms of organizing the competent authority to manage the sector, organizing the operations, in addition to basic references to the rights and obligations of the parties to oil and gas contracts. In order to shed light on the important impact of oil legislation on the work of administration in the extraction sector globally, we will discuss in our study the concept of oil legislation and the most important Parts that must be included in the provisions regulating the work of this sector in addition to shedding light on petroleum legislations in the comparison countries (Britain and Saudi Arabia), in addition to study the problem of (Legislative Omission) in the petroleum legislations in Iraq</p> zainab adnan saadoun Alaa Nafea Kttafah Copyright (c) 2024 2023-12-21 2023-12-21 1 9 251 276 10.61266/mjcls.v1i9.279 The Legal Nature of Constitutional Terms between Text & Application (A Comparative Study) https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/280 <p>&nbsp;Constitutions are the highest legal source within the hierarchy of legal norms. As such, the texts and contents they encompass hold paramount importance and carry mandatory applicability when compared to other legal sources. Consequently, legislators often make references to specific constitutional provisions for certain periods to achieve particular objectives during their implementation, which varies depending on the intended goal aimed at serving the public interest.Accordingly, it becomes imperative to afford protection to the provisions and principles contained in these constitutional texts (constitutional provisions) as they act as the decisive threshold between compliance and breach, thereby invoking accountability based on the principle of legitimacy, which constitutes the fundamental principle in enforcing constitutional norms. All of the above necessitates an examination of the nature of deadlines or time limits provided in the constitution, defining their contents and purposes, in order to comprehend the resulting liabilities arising from their violation, whether they are considered absolute or regulatory deadlines, in accordance with the legal doctrines that have addressed their nature and the judicial decisions that have solidified this understanding</p> Ali Sahib Jassim Al-Sharifi Copyright (c) 2024 2023-12-21 2023-12-21 1 9 277 304 10.61266/mjcls.v1i9.280 The Legislative Structure of Illicit Financing of Political Parties (A Comparative Study) https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/281 <p>Illegal financing is a major source of securing the strength and permanence of some political parties in many countries for various reasons, perhaps among the most prominent of which is the attempt to interfere in the internal affairs of those countries. To implement foreign policies, which made financial support with a clear political dimension, and this made many parties lose their independence and made them more dependent on illegal funding sources, so the legal systems sought to criminalize illegal financing by including the criminalized images in the Political Parties Law, however, These treatments were incomplete and full of ambiguity and need a lot of amendment to address the imbalance in the legal legislation and in the law of Iraqi political parties in particular</p> Ali Nayyef Khashin AL-Attabi Ameel Jabbar Ashour Copyright (c) 2024 2023-12-21 2023-12-21 1 9 327 357 10.61266/mjcls.v1i9.281 Margin sale of Securities and its Impact on the Growth of the Iraqi Market for Securities A Comparative Study)) https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/282 <p>The study has inferred that margin trading is based on the idea of raising the financial capacity of dealers in the financial market, and enabling them to buy as much of these securities as possible when their market price decreases, and then to sell them again when their price rises to obtain the profit achieved between the purchase price and the selling price. They depend on the loan they get from the broker in the financial market. Here as the broker gives this loan, he is the guarantor of his right to repay by keeping these securities purchased on margin as mortgaged to him to sell them again on behalf of the client in the market to get the value of the loan and the interest, and then he pays the remainder of its price to the client. Despite these interests mentioned, this type of dealing is not without risks. Due to a mistake in expectations or exaggeration in the purchase, the failure of increasing the price of securities again within the estimated period leads to the client’s big losses. In addition to the real risks that the broker faces due to not obtaining the value of the loan or the desired interest from it</p> Hadi Aneed Hassan Copyright (c) 2024 2023-12-21 2023-12-21 1 9 327 357 10.61266/mjcls.v1i9.282 Invalid Marriage Contract A Comparative Study Between Sharia & law https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/283 <p>The principle in any relationship between a man and a woman is prohibited until there is a permissible reason that proves its permission، and the permissible reason is the valid marriage contract، and for the purpose of reaching this contract the individual must verify its components، as the defect in one of them inevitably leads to an incorrect contract; and the jurists differed in their division of the invalid contracts basing their opinions on two sayings: the first is for the public who do not differentiate between the corruption of the contract and its invalidity، so both are the same; while the Hanafis differentiated between the invalid contract and the corrupt contract، and despite this difference in their description of the invalid contract، this contract does not entail anything before getting into relationship it، but if it took place without their knowledge of the defects in it، then the Islamic law has arranged for this relationship some effects such as the fall of the ‘hadd’ punishment for adultery، the obligation of the dowry، waiting period for the woman، and the proof of lineage for the child. As for the Iraqi law، the Iraqi personal status law stipulated the elements of a valid marriage contract in several articles. Legally speaking، if one of them fails، this contract is considered invalid، such as the lack of capacity، the lack of union of the contract council، the lack of acceptance of the offer and others. Finally، the researchers suggested some remarks to access to sound legal texts from the defects that may be inflicted on them، in order to be more accurate and clear</p> Ahmed Burhanuddin Abdul Rahman Ammar Mouloud Hajem Copyright (c) 2024 2023-12-21 2023-12-21 1 9 358 389 10.61266/mjcls.v1i9.283 Proportionality in Making Administrative Decisions in the Light of the Theory of Balancing Between Benefits & Harms, A Comparative Study)) https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/284 <p>When the administration issues an administrative decision, it is restricted to taking into account the relationship between the principle of proportionality and the pillars that make up the administrative decision. Known as (the theory of balancing benefits and harms), It is not enough for the validity of the administrative decision that the decision achieves a private interest only, but the administration must take into account the public interest that will be affected by its decision, otherwise its decisions will be subject to cancellation, as the administrative judge can address the search for proportionality in the administrative decision</p> Zeina Samir Hashim Copyright (c) 2024 2023-12-21 2023-12-21 1 9 390 418 10.61266/mjcls.v1i9.284 The administration's commitment to prevent rumors affecting the functioning of public utilities A comparative analytical study)) https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/285 <p>The rumor has negative effects on society in general and on the state's administrative apparatus in particular, as it affects the workflow in public facilities, whether through delay in completing the required work on time or through its impact on the morale of the workers in these facilities, and the loss of the workers in them of the required confidence These facilities, which reflects negatively on the relationship of individuals with public utilities on the one hand, and on the other hand, on the relationship of workers in these facilities with public utilities</p> Muhammad Sattar Jabbar Copyright (c) 2024 2023-12-21 2023-12-21 1 9 419 439 10.61266/mjcls.v1i9.285 The Role of the Jurisdiction of the Iraqi State Council in Combating Administrative Corruption ( A comparative Study ) https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/286 <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The judicial bodies in the State Council are competent to monitor the legality of administrative decisions, so we will examine the role of judgments issued by the judicial bodies in the State Council in protecting rights and freedoms, as the executive authority when exercising its powers and carrying out its duties from maintaining security and public order to providing services to the public to organizing And the management of public utilities, they issue a large number of administrative decisions of all kinds, which may affect the rights of individuals And that the objective of the administrative judiciary is to ensure the proper functioning of public facilities, and if a private interest conflicts with the public interest, then the public interest must prevail over the private interest, as on the other hand, the administrative judiciary is a relief that individuals and groups flee to, whenever one of them thinks that he is deprived of the right, then if he</p> Montather Hadi Radi Al-Maryani Osama Karim Biddan Copyright (c) 2024 2023-12-21 2023-12-21 1 9 440 476 10.61266/mjcls.v1i9.286 Arbitration of Disputes Electronic works Availability Contract (A comparative study) https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/287 <p>The contract for making electronic works available is one of the contracts that generate mutual obligations between the two parties to the contractual relationship, and because the two parties to the contract are often from two different countries, the disputes of this contract are characterized by an international nature, and each country has its own legal system, and these disputes are often over the financial compensation for the author. Not at the regional level, but often at the global level, through the Internet or other modern technological means. Hence, the dispute within the framework of a contract for the availability of electronic works takes the form of international disputes, which, according to their nature, require rapid resolution, which leads the parties to the necessity of resorting to both types of “local-international” judiciary, as well as the urgent need to resort to international arbitration as a quick means of resolving disputes. By their nature, they are mostly urgent</p> Ahmed Hashim Abed Hussein Abdullah Abdulrdha Copyright (c) 2024 2023-12-21 2023-12-21 1 9 477 517 10.61266/mjcls.v1i9.287 The value of transitional provisions in constitutional documents Comparative study-- https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/288 <p>This research aims to clarify what is related to the value or status of transitional or interim provisions in the Republic of Iraq's constitutional document for the year 2005 in force, in comparative constitutional system documents, which are usually included in these documents to organize the transitional period, which usually follows a radical and comprehensive change of a political system, or the development of a new constitution for this system, i.e., in addition to attempting to highlight the disadvantages or positives of incorporating certain clauses in those documents, and submitting ideas targeted at resolving or correcting that inclusion</p> Kamal Ali Hussein Copyright (c) 2024 2023-12-21 2023-12-21 1 9 1 32 10.61266/mjcls.v1i9.288 The Corona Pandemic & its Impact on Penal Institutions (A Comparative Study) https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/289 <p>&nbsp;The world faced a difficult test, and the phenomenon of the Corona epidemic constituted a dangerous turning point that overturned the balance of power in the global system, and the ease of transmission of this virus and its rapid spread caused a state of panic, and controlling it is difficult to achieve, and countries differed in ways to confront this pandemic from imposing quarantine and partial and total ban that individuals adhere to not leaving the house for fear of the spread of the epidemic, and penal institutions, like the rest of the state sectors, were affected by the spread of the Corona pandemic, so the state was forced to take preventive measures To limit the spread of this pandemic among workers and detainees inside penal institutions, through a set of precautionary measures aimed at mitigating the repercussions of the Corona pandemic on the safety and health of detainees</p> Gofran Thamir Abdullah Ameel Jabber Ashour Copyright (c) 2024 2023-12-21 2023-12-21 1 9 33 57 10.61266/mjcls.v1i9.289 Complete Breach of the Contractual Benefit in Netting Contracts (A comparative study) https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/290 <p>The contractual benefit may be completely distorted in the netting contracts between the two parties to the contract, as a result of the imbalance that occurs in the obligations imposed on both of them, and the obligation intended here is the main or essential obligation, which is considered part of the essence of the contract in itself, and its failure leads to the absence of the benefit completely, whether it is in the stage of formation of the contract or in the stage of its implementation, and therefore this results in effects, and among these effects is the invalidity or termination of the contract according to the circumstances to which the contract is exposed, some of which are included in the Iraqi civil law and the laws in question, and this is what will We show it in this research</p> Haneen mohan falih Itidal abdulbaqi yousif Copyright (c) 2024 2023-12-21 2023-12-21 1 9 92 113 10.61266/mjcls.v1i9.290 The Quorum Specified for the Session to Elect the President of the Republic (A Comparative Study) https://uomisan.edu.iq/law/mjcls/index.php/mjcls/article/view/291 <p>The position of the President of the Republic is one of the oldest positions in the state، as sovereignty and authority are embodied in his personality. Select a request to obtain the approval of the President of the Republic a، but the request to choose the required text in the appropriate session to obtain the President of the Republic، to elect the President of the Republic</p> Douaa Ibrahim Zehraw Copyright (c) 2024 2023-12-21 2023-12-21 1 9 518 538 10.61266/mjcls.v1i9.291