Share
المركز القانوني للمهندس في عقود الاشغال العامة : دراسة مقارنة == The Legal Status Of The Engineer In Public Works Contracts Comparative Study
Author name:
زياد طاهر جعفر
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:
13T1480 - p.pdf
Abstract:
It is assumptive and well known that the contract is an agreement between two wills to bring about a certain legal effect.The contract of public works is one of the important management contracts because of its connection with the economical and social development plans and its relation to the public money.It is often used in the implementation of key projects to facilitate and conduct the public utility regularly and steadily aiming to maintain the public interest, and it follows a manner of Public law by including uncommon conditions comparing to private law contracts.With the birth of each contract of these contracts, mutual and shared obligations and rights will be initiated between them (The Administration or the management) and the contracted party, as the administration is a legal public entity consisted of human element that represent it and lead its functions, it requires them to rely on capable people to carry out these obligations and maintain their rights regardless of the legal association that links the management and the employees, whether contractual or regulatory and organizational relationship.They represent a specialised staff which by them it achieves its goals, and facing what may arise due to changes during the execution of the contract, there is no doubt that the construction engineer is the most prominent and outstanding personality among the staff, whether natural person or an entity, due to his/her or its technical capabilities and skills and the performance of featured mind, efficient and professional experience that made the management select him/her or the entity and no one else to represent it when dealing with the contracted party.Taking into account the personal profile as a criterion in choosing him/her or the entity and assigning many roles, starting from providing engineering advice and prepare designs and preliminary maps and conduct a feasibility study for the project, through the supervision, direction and control over the proper performance of the works, and finally the primary hand over and testing the efficiency of the work done.With the growing role of the construction engineer in public works contract , whether domestic or international , which prompted law commentators to research and investigate the role reality, even some of the scholars went on affront to say that the construction engineer is part of the contract , after the various Iraqi legislation have included this role by many laws, instructions and regulations to assign that role and determine its extent which was the cause for initiating this study of the legal status of the engineer in public works contracts , and explore this role thoroughly and in details.The study has conducted an in - depth and comparative research with France and Egypt Legislation and judiciary and jurisprudence, as well as what have been brought by successive copies of FIDIC contracts in order to elucidate the nature attributed to the engineer role in such contracts, and the implications of the duties of many tasks assigned to the engineer which have branched and varied between what is technical or financial or legal, with a clarification of what entails those duties of the entitled material/monetary or moral rights for his/her services, based on the idea of tying the balance between the right and the duty, being the foundation of defining the legal status and determine its scope, and the reliable balance in the stability of this role. Also the study sought to show what could affect the engineer's role when the responsibility is challenged, as one of the obstacles that could affect the pillars of this role causing alteration or cancels it.Eventually the study pointed to the most important findings and recommendations
