Volume 9, Issue 2, Autumn 2019

The objective conditions of the Enforcement of punishment


Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 1-85
DOI: 10.37651/aujlps.2019.171614

Criminalization of any conduct require specific and organized legislative process. Their must be fundamental social interest need criminal law protection according to the principles of criminal policy adopted by the legislature. The legislature express his willingness to incriminating conduct through the formality of criminal rule. This rule (the criminal rule) constitute of two parts, the criminalizing part and punishment part.The first part describe the conduct model – act or – omission generally .and abstractly described. Crime as legal concept creating criminal status subjecting the offenders to the second part of criminal rule (punishment or precautionary measure). This is explained the structural connection between the crime and punishment. The judge task is to examine the conformity between the criminal alleged behavior and the legal model of that behavior 'by testing the existence of the elements of specific crime. Ensuring that existence followed automatically by enforcing the punishment determined by law.But in some cases legislature suspense enforcement of punishment on fulfillment of objective conditions regarding legal or material fact positive or negative, purely circumstantial . These facts are not related to the criminal. It's out of Legal model of the crime. Considerations for that can be linked to the policy of criminal justice and criteria of balancing among social interests.This is May illustrates the theoretical and practical importance of the research. In order to achieve this goal the research divided into three sections and introduction:•First section:The concept of the punishment objective conditions.•Second section:Subjectivity of the objective conditions. •Third section:Structure of legal model and the punishment objective conditions.•conclusionA- results B- suggestions

Standards to Fulfill the Right to Health Care

Bassair Ali Mohammed AlBayati

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 86-130
DOI: 10.37651/aujlps.2019.171615

Armed conflict, state of internal unrest, riots, protests, and civil unrest, that do not reach the threshold of an armed conflict, are forefront factors affecting the right to health care in any country. This impose direct and indirect impacts that might lead to the corrosion, cracking, and then the collapse of health systems. Partial or full breakdown of health care sector. Both impacts allow for the continuity of health care weakness for periods that might prolong even after the end of the armed conflict or, the calmness of situations after unrest and instability. The importance of this study lies in two aspects. First, the legal frame work of the right to health care in international human right law and international humanitarian law, and the Iraqi legal system. Second, the standard to fulfill this right which lay down in Iraqi legal system comparing with the international standard.

The role of economic variables in the making and implementation of foreign policy: a theoretical study

Saad Abed Aluan

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 131-169
DOI: 10.37651/aujlps.2019.171616

Foreign policy makers are aware that they are bound by many influential variables in the process of foreign policy making and the means of implementation. This realization results in a strict commitment to the development of these variables in the exercise of foreign policy objectives. Of course a meaningful and planned movement. Among these variables are the various economic variables that have been transformed since the changes and developments of the international system and international relations at the end of the twentieth century constitute one of the most important and the most serious determinants and opportunities for decision-makers in the performance of their duties in foreign policy. Where no foreign policy aimed at success and efficiency is able to ignore the role of these variables, but instead and in recognition of its role at the internal level within the communities, decision makers employed other foreign policy tools to contribute to the completion of economic tasks in a method similar to the method of means of the ends It works double when it becomes a means to achieve an end in itself because of its importance in achieving goals to a certain end later. In other words, the variables of the economy in relation to foreign policy have led to a dual function. On the one hand, it is a very important factor in pushing foreign policy decision makers to commit themselves to pursuing them. On the other hand, it is a means employed in implementing foreign policy and achieving its objectives. And its crucial function in foreign policy

A sale contract is amongst main contracts

Asmaa Sabor Alwan

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 170-208
DOI: 10.37651/aujlps.2019.171617

A sale contract is amongst main contracts. It is the master of contracts by which ownership of the thing sold is transferred to the buyer, who consequently become entitled to all powers of an owner: use, utilization, and disposal with. Because of the technological advancement made in information, remote communications, and use of electronic media rather than material media in making contracts, electronic materials used on computers – electronic programs – have appeared in all fields: industry, trade, banking, etc. Sale of these programs may be at the level of individuals and private companies or at the level of state institutions. This involves complications related to contracting, programs required specifications and qualities. Sometimes, after agreeing on specifications and quality, problems arise in implementation in terms of compliance with the agreed upon specifications, having operational defects, or insufficiency of information, etc. Furthermore, entitlement of the program may turn to be belonging to others, and has been stolen or bought from someone who has no entitlement to it. Here, entitlement is revealed after retrieving the program and banning its use by its creator. The problem of this study revolves around identifying electronic programs, their scope, and distinguishing them from others. Furthermore, it is necessary to identify applicable laws and way of identifying the person in the wrong. Significance of the study lies in distinguishing when buying these programs between a layman and a professional, as well as identifying scope of warranty concerning defects, hidden defect warranty, damage warranty, entitlement, and compensations resulting thereof. The methodology adopted in this study is comparative methodology. The study consists of three chapters. Chapter one defines warranties in electronic program sales. Chapter two is devoted for seller’s warranty, while chapter three deals with breach of obligations and related procedures. The study ends with a conclusion containing the most important results and suggestions, the most notable of which was that electronic programs represent classifications protected by copyrights. In addition, electronic programs sale contracts differ from other contracts. All contracts may cause dispute in terms of determining sale conditions and price. There is also the problem of validity of electronic signatures. A special legal relation may be related to an element or more by more than one law, for instance citizenship law, domicile, or place where contracts was made. The most important recommendation is that students should use Islamic jurisprudence books and write regularly in the area of intellectual property. We further recommend Sudanese legislators to devise a special regulation covering sale of electronic programs.

Violation of Protected Rights of Classifications for Radio and Televisions Satellite Broadcasting

Amel Kadim Saud; Beida Abduljabbar Hassoni

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 209-251
DOI: 10.37651/aujlps.2019.171630

The spread of works of authors via radio and television broadcast not only at the national level but also at the international one as satellite broadcast is cross-border has led to diversification of methods of violation thereof causing intellectual efforts of copyrights and related rights to be lost without any deterrent for such violations. This is the main drive behind this paper, where we will discuss the most prominent violations suffered by these works of authors, the Iraqi legislature’s stand expressed in the Iraqi Author Protection Law, and legislative treatment in the constitutions of Egypt, Jordan, Lebanon, and Algeria. Therefore, this paper is divided into three sections. Section one offers an introduction to radio and television broadcast and works of authors broadcast thereby. Section two offers the first form of violation: intellectual piracy. Finally, section three is dedicated for treating forms of violation not included by the concept of intellectual piracy.

lternative internal protection for refugees

Basheer Jumaah AdulJabbar

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 252-293
DOI: 10.37651/aujlps.2019.171631

The failure of States to protect their nationals in the event of persecution as a result of international and non-international conflicts taking place in the country prompts them to search for a safe place to seek refuge. International protection is carried out by the international community on behalf of that State of the refugee status of 1951. But a development has taken place when the countries receiving the refugees began studying the asylum application submitted and considering whether it was possible to find an alternative place within countries in which a person can be counted on the safety he seeks. He remains within the original that recognizes the protection of his state and exempts Of the condition of its hosting .The idea of alternative internal protection is based on the premise that the protection sought by the person may be achieved elsewhere in his state, but there are conditions that must be available in the alternative place in order to be a real substitute for the international protection that is planned Under the 1951 Convention relating to the Status of Refugees. What are these alternative internal protections, what are their terms and what is their international position, issues to be explored in the research.

Transitions of the protection of cultural heritage in international law from tangible to intangible: Evolution of concepts Transitions de la protection du patrimoine culturel en droit international du matériel à l'immatériel : Évolution

Husam Abdul Ameer Khalaf

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 294-330
DOI: 10.37651/aujlps.2019.171632

Research problem: the difficulty of protecting elements of an intangible nature which represent the intangible cultural heritage of peoples, while increasing the threats of cultural penetration which represents a new dimension in international conflicts.The importance of research: intangible cultural heritage is an important issue in preserving the existence and continuity of human components, in particular of indigenous peoples, because it works to promote cultural identity, diversity and creativity for several generations, and it is of great importance for the preservation of the cultural identity of societies, and therefore represents a world heritage of humanity.Research methodology: The intellectual framing of the research was done using the legal and analytical approach in addition to the inductive method in order to explain this concept and to distinguish it from similar situations.Research results and solutions: Intangible heritage, like tangible heritage, promotes cultural identity, diversity and creativity and constitutes a major issue in the ways of thinking, stability and harmony of societies through cultural dynamics.

American Vision and its impact on Democratic Transition in Iraq

Mueaed J. Mahmoud

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 331-368
DOI: 10.37651/aujlps.2019.171633

Undoubtedly, it is not easy to discuss the subject of democracy in Iraq, but it represents an "Iraqi dream" for which the people have long sought publicly or implicitly as an alternative to the undemocratic regimes that have ruled it. as a philosophy and concept that is alien to the Iraqi political and social traditions. The model brought by the United States, as a ready-made model for the political transition from dictatorship to democracy, was not commensurate with the Iraqi specificity and the nature of the human element.Hence, the study of the democratic experience in Iraq and the impact of the American political vision is of great importance. This study seeks to understand the nature of democratic transition and the factors affecting it. The assumptions of neoliberal theory are linked to the emergence of many phenomena that are distorted and complicated in the political system in Iraq.

Applying the principle of dependability in the framework of taking on the job in public vacancy in Iraq

Duraid issa ibrahim; Ahmed oudah mohammed

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 369-404
DOI: 10.37651/aujlps.2019.171634

It should keep in mind the importance of public office in the life and development of society. It is also an effective means to implement the state's public policy, as the public servant is the key element in success, which is need the public employee to be able to employment.On the other side, the administration must carefully check the eligibility and workability of each employee, and also need for legislation to set rules that governed this issue. The principle of eligibility means, to be appointed to public office based on a person's ability and competence. Effective management is not based solely on its adopted management systems, no matter how efficient they are, unless they are coupled with a competent employee, who is able to put them into practice. Efficient management is the possession of competent employees, who have the ability to achieve its objectives.However, the application of this principle is influenced by the other dominant principles in the public office, as these principles may contribute to the effectiveness of this application. The methods of selection of the public official and his occupation of the public office have a clear impact in this regard as well, which makes this subject worthy of research, attention and evaluation.

Balance of power in parliamentary system -Iraq’s 2005 constitution model

Anes.G. Jbara

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 405-429
DOI: 10.37651/aujlps.2019.171635

Balance of power is considered to be an essential principle that was and still an arguable topic among the literature. Balance of power has a special importance when it comes to the parliamentary systems and federals. The reason behind this comes from the fact that the parliamentary system is most affiliated to the separation of powers, and power sharing in federals has a specific meaning, related to what can be called vertical balance. Therefore, this article does not examine the rest of systems such as presidential system; instead, it highlights the 2005 Iraq constitution. Therefore, this article presents a definition of the meaning of the balance of power through discussing and criticising the literature.

Tax Reform In Iraq

Noor Hamza Husean

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 430-462
DOI: 10.37651/aujlps.2019.171636

The tax is still one of, the main resources to corer this sutudy deals with the issue of tax ,reform its role in increasing tax era venues .the after the events of 2003 there was need to, reform the tax in Iraq, from new taxes and increase, the flex ability of the system of tax admin is trationre form based on it.

The intellectual and constitutional foundations of the US federal system

Imad Rzayig Omer

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 463-488
DOI: 10.37651/aujlps.2019.171637

This paper addresses the nature of the federal relationship between the federal government and state authorities and the nature of the balance of the guarantees granted by the Constitution. The importance of this study stems from taking the experience of the United States as an example of the application of federalism, which managed to maintain its stability and continuity for a long time. The study found that the content of liberal philosophy and the nature of the constitutional structure of federalism were reflected in the form of guarantees which maintained the strength of the union and its continuity. The nature of the balances characterized by dynamism, movement and response in accordance with the requirements of the situation and the period. This is because the powers of the federal government and the states have not been sharply and decisively separated, although it causes some problems

Criminal effects of employee resignation

Oday Tulfah Mohammed Aldoury

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 489-519
DOI: 10.37651/aujlps.2019.171638

The majority of States guarantee the right of the employee to carry out his functions smoothly through the balance between the obligations and the rights he is entitled to under the organizational center occupied by his job within the career hierarchy. Among these rights guaranteed by the legal texts is the "right to resign" as one of the most important rights that can Under certain conditions, the legislator in certain cases to ensure the stability of the public facility regularly and steadily in order to safeguard the public interest makes the resignation is prohibited to the extent that it is considered a punishable offense if it is committed in certain circumstances as crimes against the public interest E, which has sought legislation to regulate caution.

Wrongful abstinence in civil liability

moath Mohamed Yaqoob

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 520-543
DOI: 10.37651/aujlps.2019.171640

The negative error is a specified error specified by the civil law, and has not been his share in this law and in the legal writers methods. The provisions of the legal text should not be organized. "It was adopted on the general texts of the theory of the error. It was two kinds, first one is negative error preceded by commitment and the second one is negative error of refraining from providing assistance (abstract error), the second kind was been doctrinal differences between legal scholars, some of them do not extend the relationship of causing the causal relationship and the lack of a text or agreement. The other writers was going to credibility and establishment of responsibility for many reasons as to extent of the community and the recognition of members of the community and the recognition of the duty to others, including the need to avoid such a danger to the same," the civilian legislations on the nature of the negative error(abstract error)was been different between Them.

Insurance of the Air Carrier's Liability for Damage to Passengers and their Luggage

Raed Ahmed Khalil

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 544-573
DOI: 10.37651/aujlps.2019.171641

The insurance contract of the of the air carrier's liability is one of the major contracts that have a various relationship. It includes multiple terms and covers large risks. It also is a mandatory contract for aircraft investors according to the provisions of Iraqi law. Although the importance of insurance contract of air carrier's liability, it did not receive the attention of the Iraqi legislator which did not regulate this contract under the provisions of the Iraqi Civil Aviation Law No. 148 of 1974 or the Iraqi Civil Code No. 40 of 1951. This requires addressing of the provisions of this type of insurance to explain its importance and role in guaranteeing the rights of passengers toward airlines. The study adopted the analytical method by analyzing the legal texts contained in the Iraqi Civil Aviation Law and the Iraqi Civil Code which regulated the provisions of liability insurance in general. This study concluded that the air insurance contract should be regulated by special legislation or at least adding a special part to the Civil Aviation Law No. 148 of 1974 to address all issues related to this contract in terms of its provisions and types in order to ensure the rights of passengers against airlines in case of air accidents.

The Immunity and its Privileges of diplomatic missions and the consequences of their violation (comparative study)

Nawzad Abbas Ahmed

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 574-605
DOI: 10.37651/aujlps.2019.171642

Granting and enjoying the immunities and privileges of diplomatic missions is a matter of common practice Hence we found the need to determine what is meant by diplomatic immunities and then determine the scope of application in terms of time on the one hand and in terms of location on the other hand for the purpose of determining the beginning and end of the use of diplomatic immunities and the need to determine the regional scope and then compare them with what was found in the Islamic system.

The Employee Freedom in social Network sites

Iftikhar Rashid khaleel; Mohammed Ahmed Raheel

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 606-640
DOI: 10.37651/aujlps.2019.171643

It is indisputable today that the employee's right to express and publish on electronic social networking sites is one of the rights guaranteed by most legislation, because it is important for the transparency of the work carried out by public officials in the exercise of administrative work within the limits set forth in such legislation.The development of social networking sites and the increase in the number of people using these websites haveincreased and exacerbated legal problems. This has led to disagreement and contradictions between the legality of the acts of employees and their illegitimacy between supporters of the idea of development which can Achieve high goals to improve the effectiveness of the General Facility and the authority on the basis that it is a matter of electronic administrative control of self-management work and that if it felt that the control from the inside will remain vigilant and try to make the facility successful, and between its opponents in the severity of the challenges arising from the poor usage of these sites by the employees because of their impact on the privacy of individuals on one hand and threatens the safety and security of the state on the other, so most of the legislation at the present time to keep pace with technological developments through the development of legislation are considered necessary to regulate this matter.

The efficiency of some developed administrative contracts types in managing economic crises: "partnership contracts as a case study"

Ahmed Rakaa Klifah; Methaq Qahtan Hamed; Omar Hussein Ali

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 641-668
DOI: 10.37651/aujlps.2019.171645

The significance of the newly developed administrative contracts in general and the partnership contracts in particular has made them the focus of attention and aspirations of different economic systems countries. This is due to the advantages enjoyed by the unprecedented successes achieved in the countries that applied them resulting in the following:1.Its ability to address the shortage in financial resources of those countries.2. Allowing the private sector to play its real and active role in the process of building various fields of economy.3.To redirect the capabilities and possibilities of the public sector towards important and large projects that may be neglected by the private sector for one reason or another.Given the aforementioned advantages, and as a result of the severe economic crisis that hit the Iraqi economy by 2014 due to the sharp drop in oil prices on the one hand, and the collapse of the security situation in large areas of Iraq on the other hand, causing a major economic crisis in Iraq, the present research is set to address the "partnership contract", in which the majority of jurists regarded it as one of the developed administrative contracts. This may be the real savior of the reality of the Iraqi economy if the Iraqi government dealt with it seriously and realistically. The Iraqi government can benefit from the experiences of neighboring countries that adopted these legal systems which made them, in a few years, in the ranks of the major countries after recently being among the developing countries. I hope that I have succeeded, even slightly, in this unpretentious research of the role and importance of the partnership as a model of developed administrative contracts.

The idea of transferring the administration's contracts

Ali Mukhlif Hammad

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 669-699
DOI: 10.37651/aujlps.2019.171646

This paper addresses the possibility of applying the idea of transfer the contract approved by the private statutes. It also addresses how to use this idea in the invalid contracts of the administration, which can be considered as legal tool to reduce the cases of invalidity and to limit it negative impacts. The importance of this research is derived from the importance of contracts signed by the administration, as they are the most significant means adopted by the administration to implement its function. Some of the administrative contracts have defects, which lead to its invalidity. Such problem prompts us to search the possibility of transfer these invalid contracts to veiled legal actions once the conditions of transferring the invalid contract to another valid action have been fulfilled, especially in the case of lacking certain text that addresses the transfer in the public law.This paper is based on the analysis method that can helps us to gain deeper understanding of the idea of transferring the invalid contract signed by the administration to see how can be applied in the framework of the administrative contracts. This research found out that the invalid administrative contracts signed by the administration (civil administrative contracts) can be transferred into administrative contracts signed within the rules of the public law. Furthermore, these invalid contracts can be transferred into administrative decisions once the conditions of transfer have been fulfilled.

protective administrative procedures to protect the environment

Asmaa noory Ebraheem

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 700-745
DOI: 10.37651/aujlps.2019.171648

Administrative control is a general theory in the field of administrative law. It is one of the most important functions of the administration to preserve the public order in its various components - traditional and non-traditional - through the authorities available to it under the law, as well as its prominent role in the field of environmental protection and preservation, What is experienced by all the countries today is the environmental problems imposed on them the duty to address these problems to prevent them before they occur, and efforts - the above - whether national or international value is not unless there are administrative bodies to implement them, and because of the administrative control of being A preventive legal regime In order to preserve the public order, most countries have worked to prevent the dangers of pollution and protect the environment from its dangers through the relevant administrative control bodies.

Prohibition of Children's recruitment in International law

Sara Salam Jassim

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 746-780
DOI: 10.37651/aujlps.2019.171649

The participation of children in conflicts, wars and hostilities is a phenomenon that is increasing day by day and appears to be linked to the emergence of new types of conflicts. whether international or non-international, and despite the existence of this phenomenon since the Second World War. but the efforts to address the issue of child recruitment did not appear or increased only When it was noted by the international community that the Fourth Geneva Convention of 1949 omitted to address the issue of child recruitment, it became necessary to create international protection for the benefit of children taking part in hostilities. bearing in mind that the two Additional Protocols to the Geneva Conventions contain Rules prohibiting the participation of children in international and non-international armed conflicts before they reach the age of fifteen. As a result of the increase in armed conflicts and the use of weapons in all its forms and quite easily by different age groups, including children and as a result of the increasing number of children who are recruited and most often are forcibly recruited until the number of millions of deployed in all countries of the world and its continents in this clear violation of international law in general and international humanitarian law in particular.

Legitimacy of spying via satellites under international law

Aber Ali Abdualazez

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 781-809
DOI: 10.37651/aujlps.2019.171651

the development of the spying facility among nations utilizing satellites has left its clear effect on increasing international disputes and their entering in the domain of space war and competition to possess spying satellites due to their great potential regarding information collection and identifying the war, military and economic capabilities of states. This, consequently represents a threat to the security and sovereignty of states. In light of this, it becomes necessary to shed light on the legitimacy of spying via satellites under codes of international law.

Doctrinal review in the silence of partners about the sale of the partner part of the common thing

Mohammad j. zayin; Mohammad F. Sabah

Journal of Anbar University for Law and Political Sciences, 2019, Volume 9, Issue 2, Pages 810-828
DOI: 10.37651/aujlps.2019.171653

Common ownership raises many contentious issues and legal problems, either because of the quarrelsome nature of the common, or because of the inaccurate treatment of these issues by the legislator, as in some of the remedies the legislator has increased the problem without rising hernias, as he did in the issue of Scott partners The partner acted in part of the common money, specifically in the text of Article 1062 (2), which dealt with the silence of the partners about the act of one of the common money, in a logical violation of the general provisions in silence and confusing the impact of this behavior, where he relied on what Divided by division, the impact of the acting part in the share of the acting partner after the division is considered to be true, but if the part disposed of the share of the acting partner does not have the effect of the contract, it is understood from the context of the text that the legislator intended legal and material disposition, and we will try to collect Anomalous text and come up with a solution to this problem.