Author name:
نجاة كريم جابر الشمري
Supervisor name:
عبد الرسول عبد الرضا جابر الاسدي
Abstract:
ان السلطة التقديرية للقاضي في العلاقات المتعلقة بالاشخاص ذات العنصر الاجنبي تلعب دورا مهما وحاسما، هذه الفعالية التي يملكها القضاء في اطار هذا القانون تتسق مع فلسفة وجود القانون الدولي الخاص , فهو قانون لا يقوم على الفردية والانعزال، بل على الانفتاح | The discretionary power of the judge in relations relating to persons with foreign element plays an important and critical role, this event is owned by the judiciary in the framework of this law that are consistent with the philosophy of the existence of private international law, as a result of the expansion of the legal Relations to persons and their movement across the border from one country to another ,therefore Private International Law does not based on individual and isolation ,but on the openness between the countries. Perhaps this diversity and dispersal is the one who justified the lack of full rationing to deal with all disputes concerning about them, which throws all its weight on the judiciary to exercise an important role in this relationship because of its discretionary power in assessing each case alone , judiciary as a last resort for litigants him to govern justly among them and it cannot be invoked or to decline to do so under the cause blurred text or lack of it, has resulted in this changing reality (the decline of the role of the legislature) to give a large area of the judiciary in that used his discretion and diligent essayed industry solutions in cases of non - existence of the text, and even he with a text by hypothesis, in some cases, that complements and enhances this text exist and starts Bmle legislative blanks.In the field of international transactions in order to reconcile the data and the requirements of real - life relationships relating to persons with foreign element. Legislature and Judge works both according to the theory of extensions and integration, the former security need for the survival of his role limited to general guidelines because of the lack of its potential to familiarize themselves with all the details and facts divisions and complexity of the ever - changing changing human needs, the legislature by seeking that he wanted to give the judiciary the possibility of this confrontation has grown and grown this role to spend more and more, especially in the legislative and judicial pluralism countries. As notice that most legal systems moving toward granting the judge wide discretion power in the works effected Rule as is the case with English law as the law is codified (in accordance with the case law), so it gives to judiciary the force of law the judge is the one who makes the legal Rule and establish it through judicial actions, and in return, others as Germanic legislation abandoned the idea of arbitrary discretionary power or absolute.The judge use the effected Rule so that no longer have a presence in the field of nabimal judiciary when separated in the Relationships of foreign element because they lead existence of the State of illegal controlled by arbitrary and no room to estimate the but succumb to the wishes and desires of the judge and this cannot be taking it in practice, so it requires that the judge proceed with his work in the light of the disciplined law source, judge exercised his authority and derives its mandate from the legislature, which defines the scope of this authority in accordance with the provisions of the legislative detailed, as is the case in matters of personal status such as marriage and divorce.We have made clear from our study that the judiciary in general and the resolution, in particular, is not correct on its own, but higher courts monitor the application of the judge to effected Rule, as a national legal basis in order not to lose the power and the limits are exceeded by the judge, the Judge makes a binding good interpretation and application, whether it is losing sight of the Judg application , despite the availability of the conditions applied, or applied automatically without respect for the principles of impartiality of the judge and respect for the rights of the defense or it comes to make a mistake in the application, as a national legal Rule whether to adapt the legal issue in spite dispute or in the application of effected Rule where properly applied, or in determining the scope law ascribed to monitor the conditions applied, whether this rule double or single side, whatever the nature of the rights as regulated by the judge erred in that the judgment be set aside for the violation. That's what my study focused about what he should be enjoy with discretionary power to provide protection of the peoples, Rights , and perhaps difficult point of this issue lies in the comparison between the states legislation that we have taken exclusively as the civil law of Iraq, Egypt of one hand, and civil law of French, English on other hand. What is worth point out that the aim of this study , but a detailed vision for the discretionary power of the judge, Through Limits of this power in the framework of the special nature of relations to persons with foreign element in order to improve and encourage national transactions across international borders in accordance with this the idea we will try to prove in this modest study, the discretionary power of the judge in relations to persons with foreign element and that these terms were instrumental, but I weighed used to my belief in the significant role played by the both of them, Sometimes as we said before the judge gives discretion was the latter represented are known authority of appreciation, a flexibility that you get a tacit agreement between the legislature and the judiciary, which the legislator seeks its report to events or imported balance character between change reality and rigidity of the text in order to keep abreast of new developments in the framework of the reality of life, and this role can be termed without hesitation role of supplementing the work of the legislature, and in humble appreciation that the latter role is in the discretionary power inherent in the work of the judge, and at other times narrow and lacking the authority of the judge in the framework of legislative texts with legislator scope to the discretionary power of the judge. detailedAccordingly, this modest study will take care of, to study the features of the discretionary power of the judge in relations to persons with foreign element in terms of concept of the discretionary power of the judge and distinguish them from adapting, and what limits the scope of outstanding personal rights relations, as well as relations relating to personal status.
