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ازدواجية الاعتداء على المحل في الجرائم الواقعة على المال == Duality Of Assault On The Place In The Crimes Against Property
Author name:
عباس حمزة عبد حسين
Supervisor name:
تميم طاهر احمد الجادر
General topic:
Law
Specific topic:
Criminal Law
Degree:
Master
University:
Mustansiriyah University - Faculty Of Law - Department Of Public Law
Language:
Arabic
University location:
Baghdad
First pages:
13T1497 - p.pdf
Abstract:
للمال اهمية كبيرة في الحياة , لذلك حرص المشرع الجنائي على حمايته , لانه مصلحة جديرة بالحماية الجنائية , وقد ادت ذاتية القانون الجنائي الى اختلاف مفهوم المال في هذا القانون عن مفهوم المال في القانون المدني. وهناك خلاف فقهي كبير حول وقوع الاعتداء على الما | Property has great importance in the life so legislator was keen to protect it because it is interest worthy of criminal protection, and the subjectivity of criminal law has led to the difference in the concept of property in the criminal law than the concept of property in civil law.There is a considerable dispute in the opinions of the jurists about the occurrence of assault against property, is the assault occurs on the possession or on ownership? Or it is dual assault on both possession and ownership together? Due to this great importance of the Property, the legislator has considered the assault as a double assault on property because it is an assault on possession and ownership together at the same time, that the protected interest in crimes against the property is the ownership interest and the interest of possession together to protect Property, economy, work, and progress. So that the parent - in - law says that funds are permissible and will usually be carried back to the Civil law in regard to property, the rule is that whoever possesses the Property is the owner of it, until proven otherwise, initially the possessor is supposed to be the owner, so that the possession is the most important of property elements, and even if the evidence is proven contrary, the law may keenness on the protection of the possessor in the face of the owner on several conditions.As it follows for the assault on the property important implications as a result of an act done by an offender because the property would be subjected to decrease or waste as well as the acquisition will move from victim to perpetrator, therefore legislator condemn this assault.We have discussed the subject in the preliminary study and three chapters. In the preliminary study, the concept of property topic was discussed through the definition of the concept of property, the property in the civil law, and the concept of property in the criminal law.And we have dedicated the first chapter for the possession, ownership, and the duality assault on the property. In the second chapter, we are discussed the wisdom of criminalization the assault on the property by searching in the protected property interest in the crimes against property and the relationship of interest to the right and the legal protection of property.We discussed in Chapter three the implications for the assault on the property by searching in the consequence for the assault on the property, and the damage and danger resulting from the assault on the property, and finally we have discussed the mistakes resulting from assault on property.Finally, we have reached to the most important results of this study to the theory of duality of assault on the place in the crimes against property : - 1. For property in the criminal law concept differs from the concept of property in civil law.2. The possession, which received the criminal protection, does not have the same stable concept of possession as in the civil law, the legislator though had gleaned the general principles on the matter from the civil law, but made sure to protect the actual possession regardless of the cause, unless based on the force and abstraction, so that the nature of the criminal law rules and philosophy differs from the nature and philosophy of the rules and judgments of the Civil Law.3. The legislator does not mean by the phrase “owned by others” the real ownership only, but intended the actual ownership also. Therefore, this phrase should be taken a broad sense which is not limited to property as defined in civil law, but also goes beyond that to include legal possession.4. The purpose of the possession lawsuit is to protect the possession itself complete protection in independence from property protection or the origin of right, and here we come to an important result is that the law, which protects possession as a physical situation, not in any prejudice to the protection of private property as a corporeal right that the Constitution protected from assault, and in order to ensure the independence and the separation of the protection of possession from the protection of property ,the legislator put the rule of non - accumulation between the possession lawsuit and the ownership lawsuit, as an dispensable primary condition, to determine the independent protection of possession and possession claims for property that differentiated from the ownership lawsuit. In spite of the guarantees established by the legislator in support of the independence of the protection of possession from property protection, the legislator has affected by the relationship between possession and property and that no one can ignore. And it is appeared in the bail system, which put it in stop the new actions lawsuit, which linked its judgments with the results of its judgments in the right lawsuit.5. The assault on property is double because it occurs on ownership and possession together.6. The meaning of the duality is that the assault on the property place of crime at the same time be an assault on all of possession and ownership together. This means that the assault on the property is double assault on both the property and possession together, so that the criminal law is looking at double standards that the possession is a standard and ownership is a standard.7. The duality of the assault on the property is by embezzling property place of crime because the offender assaults on the possession of the victim in order to allow the offender to assault later on the ownership. Thus, materialism sides of assault against property are determined on the basis of possession theory, because the essence of embezzlement is the assault on the possession of others.8. The legal protection place is protection of the interest and not the property, in fact the interest is a range of benefits, and in other words ,the interest is a realistic position that gives the occupier status distinct from the rest of people. If the legal protection is added on interest, the result will be shifting realistic position to a legal status, and therefore the two elements of right will be gathered : the interest and its legal protection.9. The legislation is keen on protection of possession and also is keen on the protection of property by stating criminalization of the assault on the possession and the ownership in the panel law, so that the legislations that dealt with report of incriminating of actual assault on property, in reality ,is aimed at the protection of human rights. In fact, the legislator, in this area, protects the wealth; with all the widely sense of this word; which means the group of the direct authorities owned by an individual, which have a monetary value and other rights that have economic estimations, which collectively be financial wealth. Also the possessor of property in multitude predominant way to be is the owner of it, and the first advantage of ownership is the owner possesses property which he owns. It is very rare to find an owner does not possess by himself or through others, so the law assumes in principle that possessor is the owner, and protecting property through the protection of possession.10.The consequence of an assault on property is damage or danger. In the case of damage, interest protected criminally or actual property will be wasted. In the case of danger, the property or interest mentioned are at stake, without getting damage because the legislator does not postpone facing any breach of interests until the occurrence of damage to these interests, like the rest of the other laws, but hasten to criminalize every act put these interests at risk of damage, as in the cases of initiation as a start in the implementation of an offense not completed legally.
