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الحلول القانونية لعوارض تنفيذ عقد امتياز المرفق العام وتصفيته : دراسة مقارنة
Author name:
هدى تحسين الياس
Supervisor name:
علي احمد حسن اللهيبي
General topic:
Law
Specific topic:
Administrative Law
Degree:
Master
University:
Mustansiriyah University - Faculty Of Law - Department Of Public Law
Language:
Arabic
University location:
Baghdad
First pages:
13T1518 - p.pdf
Abstract:
تعالج هذه الرسالة موضوعا حيويا له اهمية كبيرة في المجال الاقتصادي بشكل عام ويؤثر على المرفق العام بشكل خاص، الا وهو عقود الامتياز، فقد تلجا الادارة الى ابرام عقود الامتياز باشكاله كافة مع القطاع الخاص من اجل تحقيق الاهداف، وتلبية احتياجات المجتمع المتزا | This study deals with a vital subject with big importance in the economical field generally, and affects the private facility particularly, the administration may go to seal all types of privilege contracts with the private sector in order to achieve the goals and satisfy the growing needs of society, where some believe that the public sector has a difficulty with managing the big projects for all public facilities, because of the inability to provide necessary finance and credits to implement these projects, thus, it was important to think about attracting investments to construct and develop these projects, spatially the infrastructure constructing, and since these projects are large and risky because of the big amounts of spent money to achieve them, then they must be implemented accurately, and it takes the management to give up some of its control and aim to implement the mutual commitments of the contracting parties.And no matter how much the effort was to fulfill the contract commitments between the contract parties, some unexpected obstacles may appear and they are hard to be handled or anticipated according to the ordinary standards of things, thus it becomes hard to fulfill these contract commitments with the presence of these obstacles.Therefore, solutions must be found for managing the crisis that public sector is subjected to, and try to dissolve the obstacles that object it, to maintain it and present its services to the beneficiary people regularly and steadily.Our motivation to choose the subject of the study was to know the legal solutions that were founded by the legislator, the judicial system and the jurisprudence to avoid these setbacks.This study was divided to an introductory part and three chapters; the introductory part addressed what is the public facility privilege contract, and this was subdivided into two requests, the first defined the public facility privilege contract and explained its characteristics and the legal types for these contracts, and we distinguished it form the similar other systems, while in the second request we addressed the modern development for the public facility privilege contract by defining the modern privilege contracts and distinguishing it from its similar concepts, also knowing the its importance through its privileges along with its set back points that effect it.The first chapter was about the public facility privilege contract incidents through dividing it into two parts, in the first we issued the respective impossibility for executing the incidents of the privilege contract that require keeping contract execution despite of the cost increment that results with a financial overstrain for the contractor or the project company.And this part is also sub - divided to three requests; in the first we mentioned the emergency conditions incident through identifying it and knowing the required conditions for it. In the second request we issued the mismanagement whether it was by its mistake or not, and in the third request we explained the unexpected financial difficulties that makes the contract execution more exhausting for the contractor. And we studied in chapter II legal solutions for public facility concession contract disabilities : by dividing it to three topics, in the first one we discussed compensation by defining it, knowing its types and how to calculate it when concession contract disability accrues, in the second section we studied abrogation through defining it and knowing its basis, and identify its types that may approach concession contract, in the third section we showed suspension by identifying it, show the conditions of obligation to it and the impact of the suspension on a concession contract annex. And we studied in chapter III legal solutions to filter the public concession contract : by dividing it into two sections, the first section we studied settling, distinguishing it of its similarities and the resolving mechanism of disputes arising therefrom, in the second section we discussed about how to conduct public facility settling through knowing the fate of labor contracts made with annex users and workers, also find the free returned money to the State from those returning with a compensation and also we studied how to setter financial accounts between the parties of the annex concession contract.
