جريمة الانتفاع من المقاولات او الاشغال او التعهدات : دراسة مقارنة == A Crime Of Benefit From The Construction Works Or Undertakings A Comparative Study
Author name:
علي حمزة جبر
Supervisor name:
لمى عامر محمود
General topic:
Law
Specific topic:
Criminal Law
Degree:
Master
University:
University of Babylon - Faculty Of Law - Department Of Public Law
Language:
Arabic
University location:
Babylon
First pages:
13T1559 - p.pdf
Abstract:
تعد جريمة الانتفاع من المقاولات او الاشغال او التعهدات من اخطر الجرائم التي تقع على الوظيفة العامة وعلى المال العام المتمثل بالعقود العامة , اذ ان الجريمة محل البحث تمثل تعديا وانتهاكا للمباديء التي يقوم عليها التعاقد في عقود المقاولات او الاشغال او ا | It is of the most serious crimes, which lies on the public office and public funds that representative by the contracts, since the crime in question represents an infringement and violation of the principles of the contracting, which include confidentiality and respect the principle of equal opportunities and respect for free competition among the candidates to win the tender. However, those principles may be violated by the officials who are responsible for the tendering and contracting, therefore; the legislature intervened to criminalize for employee who is getting benefit or commission of completing these stages that he is in charge of. Thus, based on the importance that imposes itself as a necessity of the necessities of scientific research in such a subject and through what we have mentioned above, we have reached some results , the most important of them is inadequate punitive text cited by the legislator as a punishment against the perpetrators of this crime and that is disproportionate to the size of this crime by increasing its perpetrating rates, and that not following the legislative development given to this crime comparing with the legislation of Kuwait, Egypt who are very strict in the consequences of this crime. Also, we did not find enough attention from the legislature to avoid the occurrence of this crime by strengthening the legislation governing public contracts because this legislation's inflation and its plentiful is another factor of committing this crime. So we have asked the Iraqi legislator to edit the text of Article 319 of the Iraqi Penal Code to increase the punishments with redrafting the text to include the various situations that are used by the perpetrators to commit the crime, also we have asked the Iraqi legislator to issue a public contract law to be the special legal reference for the public contracts, and cancel all legislation, regulations, instructions and classified in one of legislation package. The importance of this topic is come from two sides : The first is the theoretical side, the subject of our research occupies a paramount importance in terms of legal research because there is no a specialized legal reference "in Iraq" has been dealing with this crime in all its parts, and have not get adequate attention by the Iraqi jurisprudence, as the jurisprudence does not mention the crime only through transient signals which do not meet all the tenors and contents of this crime. Furthermore, this topic has passed several of legislative developments in Egypt, Kuwait and France, but did not cast enough attention from the Iraqi legislature, where the legislator did not take the initiative to review the punitive provisions that dealing with the public contracts, including the text of the article (319). The second side is the practical importance of this topic where this importance come from the importance of public contracts themselves for being the mouthpiece of the most important aspect of the management's activities and through which it seeks to meet the needs of individuals as well as of the importance of protected interest which legislator wanted from criminalization text, namely the protection of the integrity of public office and public fund. The problem of the research is concentrated on the inadequacy of the punitive text cited by Iraqi legislator in Article 319 in the Penal Code as a main punishment imposed on the perpetrator of the crime ,and is thus contrary to the principle of aggravation punishment for crimes related to public fund, but that the punishment lagging from the articles that preceded it as the crime of mala fides damage of the funds and interests which cited by the legislator in Article (318).Whoever cause detrimental damage to the of one of the government departments and the public sector will be penalized by an imprisonment while the employee who get benefit from work of contracting will be punished by imprison or imprisonment for a term not exceeding ten years in addition to the lack of clarity of Iraqi legislator concept regarding the case of restitute of public funds for this crime and common crimes having same effect. Sometimes adapts it as a financial penalty and sometimes put it in a vague situation. As part of the applied field, the provisions of the Iraqi judiciary has reinforced the dilemma contained in Article 319 of the Penal Code, which reached to the extent that empties punishment of its content.The majority of rules issued by the judiciary are imprisons, unlike the aggravation that we'll find in judicial rules comparing with other countries, especially Egypt and Kuwait.In line with what has been presented, we have adopted the analytical comparative method in the study through the legislative texts that dealt with subject to reach the results that the study aimed to. Relying on the position of the legislators in Iraq, Egypt, Kuwait, France for the purpose of comparison, also some international conventions that ratified by the legislation under study will be discussed , since it became an integral part of internal legislation, and whenever required for the search.The scope of the research in this study was distributed into two sides : First, is the legislative side, which is limited on the side of criminality punishment only as beyond the scope of our research into the use of public contracts in the administrative legislation and what is the authorization of the management to impose punishment against the beneficiary employee of such contracts. The second is with respect to how to handle the topic of this study, as it was limited on the objective side only, while the procedural aspects that might be against the crime will be outside the scope of our research.A consistent plan has been created in line with the objectives of the study and its goals, and based on that we will divide the research into three chapters preceded by an introduction. The first chapter will be allocated to indicate and explain what the crime of benefit from work of contracting is. This chapter consists of two sections, the first section deals with the concept of the crime of benefit from work of contracting, and the second section deals with the crime essence and the protected interests in this crime. The second chapter is devoted for studying the elements of crime, and this will be through two sections. The first section deals with the special basis of the crime, and the second section deals with the general basis of the crime. The third chapter is displaying the effects of the crime and that's by two sections, the first section is devoted to state the penal effects of the crime, and the second section will state the non - penal effects of the crime. Finally, we will write a conclusion at the end of this thesis, stating the results, recommendations and proposals.
