القرار التنظيمي التنفيذي
Author name:
ايمان عبيد كريم السلطاني
Supervisor name:
محمد علي جواد كاظم
Abstract:
After our brief presentation of executive regulatory resolutions which are considered one of the regulatory resolution issued by the administration in order to execute the issued resolutions from the legislative power to facilitate their application, explaining their vagueness, detailing the whole of them. We find that these drafts are more important than other drafts issue by administration, such as independent drafts, necessity drafts, authorizing drafts which are held for limited period of time, since most of time the validity of the resolution depend upon its issuing as a necessary term for validity of law, in addition to showing the details of law and explaining its rules. And administration abstention from issuing it may retard the validity of the law issued from the parliament for specific period. As we indicated previously, we has demonstrated in our research a simple clarification of what are regulatory resolutions are considering them as managerial works which include general and abstract rules and Will be applied to persons not assigned by themselves. So, they are look like the law and differs from it because they issued by the parliament. In the meantime the regulatory resolutions are subsidiary legislation issued by the executive power which granted the right to issue those resolutions after the breakdown of existed separators between the legislative, executive and judicial powers which have been built on basis of separating between the powers and holding the management of public interest requirements and necessities of public utility progress.Being acquainted with all developments only is not enough which become inconvenient for development of state duties extension of their activity. This led to intensification of administration duties as being responsible of executing the law in order to put the public interest into effect. The legal legislator can accompany those requirements by himself only.Therefore the government granted the right to issue the drafts to proceed their duties as being most capable to respond to all those developments because it has close relation with individuals. Thus, it is able to form the partial details which the law is not capable to be acquainted with. In spite of giving the power to the administration to from these drafts, they still in order under the law according to sequence of legal rules even after the role which granted by item (37) of French constitution of 1958 to the draft, as it got an open space in the meantime it shrank the space of law. We have showed in the first chapter he common components between the regulatory resolutions and the individual resolutions according to formal criterion of their issuance together by the administrative. However, they differ from in terms of their content, since the individual resolutions are addressed to specific persons by themselves but the regulatory resolutions forms general and abstract rules, the regulatory resolutions may called as drafts, and some people may call them regulations as in Iraq and Jordan.In the second chapter, we have showed the power specialized in issuing drafts or executive regulations in each of French, Egyptian, Iraqi, Kuwaiti and Jordanian legal system. As these drafts are issued by the president of the state, prime minister or the cabinet. The ministers also participate in the power of issuing them. The power may be given to governors or other local bodies in case of clear statement to grant them - in the core of the law - the power to issue the executive drafts. These drafts are issued in different forms such as public management, ordinary decrees as in France. And in Egypt, the executive drafts may issued by republican resolutions by the president or vice - president, prime minister or one of the ministers according to authorization given from the president.In Iraq, the executive regulations were issued by president of Revolution command Council and prime minister just like Jordan and Kuwait. We have specified the third chapter to study judicial supervision on the legitimacy of the executive drafts. In the beginning we have discussed the development of judicial supervision and how the countries transferred from unified judiciary system to doubled judiciary system in order to impose their supervision on administrational resolution issued by administration body in each of France, Egypt, Iraq and Jordan and how the lawsuit of cancellation developed which is made to demand termination of illegitimate administrational resolution issued by administration.The council of state has related, for the first time, its supervision on the validity of executive drafts in 1907 after being not subjected to juridical supervision because they are considered as actions issued by the president of the republic. So, it is not possible to oppose to them in order to check their legitimacy.In Iraq, the court of administrational judiciary was specialized in examining the validity of resolution issued by administration body in resolution No. (106) of 1989. The paragraph (d) of clause “secondly” of the item (7) laid down this specialty of the court. It seems as it examines the validity of individual orders and resolutions and do not extend to examine the legitimacy of regulations and regulatory resolutions. So, the formation of the mentioned script must be re - examined in a way which h represents explicitness of specialty of court of administrational judiciary in canceling illegitimate regulations. Some people believe that since this script dose not lay down examining the validity of regulations in explicit script, it would be out of guardianship of court of administrational judiciary. And, that is in order to submit the form of lawsuit of cancellation, a number of formal and objective terms must exist : • Existence of administrational resolution and interest to submit a lawsuit of cancellation.• Must be in the date staded by law in lawsuit of cancellation.• One of defects of illegitimacy must take place. Whether the defects was in speciality (like issuance of executive draft by non specialized person by law) or in form when the executive drafts issues on the contrary to decided formalities of administration in explicit script in law. Also, the executive draft issues on the contrary to legal rules which makes it illegitimate and then it deserves cancellation or it would be issued without any legal or real reason to be issued. Thus, it becomes defected with by defect of reason. The draft may be illegitimate when it issues on the contrary to the specified objective of its issuance or to public interest.Thus, the drafts will be illegitimate if they have any of those defects. This motivate the supervison of the judge to examine their legitimacy and to cancel what is unlike to the scripts of laws
شرط المصلحة في دعوى الالغاء : دراسة مقارنة
