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Amending Condition of Contractual Responsibility in the Egyptian Civil Law
(2006) Ahmed Saleem Fariz Al-Nasrah; Dr. Gassan Khaled
This study examined the amending conditions in the contractual responsibility. In an introductory chapter, several issues related to this study were raised. One was the pillars of contractual and inadequate responsibility. The focus was on the pillar of error. It was explained that personal responsibility of the moneylender (creditor) extends to his responsibility for the errors of his/her followers and the act of doing the thing. A comparison was held between the two responsibilities. The issues of combination and choice between the two responsibilities were presented. It was found that considering the choice between the two responsibilities would lead to the lack of order of the two exempting and mollifying conditions of the impacts of the two responsibilities.A definition of these two conditions was presented and so was their scope. It was found that the idea of amendment in the responsibility is blemished with ambiguity by same law expounders. The researcher distinguished it from compensation agreement system and responsibility insurance. Then the researcher presented the effects of conditions on the persons. He explained what could be considered an exception in these effects and showed the partial and total impact of the invalidity of these conditions on the contract, thus rendering the application of the general rule in the lessening of contracts. Chapter one was devoted to the exempting condition from responsibility. In this context, the researcher presented the fiqh (Islamic Law) position towards this condition. He also presented the position of the Egyptian law and court of justice. It was found that the Egyptian civil law has allowed explicitly this condition but introduced two exceptions to it. One exception is serious error; the other is the error of the other. The researcher criticized this position because the creditor’s responsibility in this case is a personal responsibility. Further, the Egyptian civil law has failed to put rules or sufficient restrictions on this condition. The researcher suggested taking a number of these rules, derived from fiqh and court of justice and others derived from some special applications These restrictions don’t allow this condition if it poses danger to man’s safety. They also don’t allow this condition if it has to do with a key commitment in the contract. In addition, it was necessary for the condition to be written; otherwise, it would be related to the relationship between the consumer and the merchant. It shouldn’t be stated in the submissive contract. The researcher found that despite allowing this condition as a general rule, several applications were cited and considered this condition devoid. The researcher concluded that this condition would lead to the lack of responsibility of the creditor although he would be originally responsible pursuant to the general rules. He has to transfer the burden of evidence, in the case of cheating and serious error. Chapter two was devoted to the mollifying condition. The researcher noticed that this condition had several versions. He, however, limited them to the two general versions. One is the mollifying cases of commitment. Added to them was a special version pertinent to the condition which dictates that the period of course of the time be shortened. The researcher, in this context, found that the first and second versions would be allowed. The third version, however, would not be allowed except in narrow situations. Of the mollifying condition versions, the version that would refer to the sum of compensation was ruled out. It was not considered a mollifying condition of responsibility. Rather it was a compensation: either agreement or legal. Concerning the partial exemption from obligation or commitment, it was attached to the provision of exempting condition because there was no difference between them. What applies to most of the mollifying condition provisions apply also to the exempting condition given the same cause most of the time. In chapter three, the researcher dealt with the stiff condition in responsibility. He presented the condition which holds the moneylender the foreign cause. He explained its notion, what it includes and showed that it has had two faces. The first is included in the concept of guarantees. It is considered a commitment in its accurate meaning. The second remains within the framework of responsibility. Every adaptation necessitates different effects. They were all explained in the context of the research. The researcher presented the effects of this condition on the burden of evidence and money lender’s responsibility. He also explained the exceptions to it. He also dealt with the condition of toughening the evaluation of the moneylender’s conduct and explained its versions and its impact of evidence and moneylender’s responsibility. He also presented several applications for the stiff condition in responsibility in several contracts. In addition, he presented the restrictions stated in the stiff condition in responsibility: writing, clarity, physical safety of men, non-violation of general order, and good intention and non-violation of the condition of justice. In the conclusion, the researcher presented general conclusions. Details pertinent to applications of conditions, however, were not all presented. The suggestions were also restricted to the wording of a general text which has to be included in the civil law in addition to another text pertinent to the permission of choice between the two responsibilities.
Trade Marks and the Ways of Protection in the Laws which is Valid in Palestine
(2006) Mahmoud Ahmed Abed-Hameed Mubarak.; Dr.Gahssan Omer Khald
The main function of the trademark is to enable consumers to identity a product (wherever a good or a service) of a particular company so as to distinguish it from other identical or similar products provided by competitors. Consumers who are satisfied with a given product are likely to buy or use the product again in the future, for this; they need to be able to distinguish easily between identical or similar products.In general any distinctive, words, letters, numerals, drawings, colours, pictures, shapes, logotypes, labels, or combinations of the above used to distinguish between the goods and the services of different companies may be considered a trademark. The subject of the trade mark includes the following points: Chapter one includes: The concept of the trade marks، and the different kinds of the trademarks, such as the name, signatures, words, letters, numbers….elc, that can be used as trade marks, and in this chapter will deal with the necessary conditions of the trade marks, which are distinguished, new and legal. This study treats the different aspects of the legal protection of the trade marks which are: the civil protection and criminal protection. Chapter tow includes: The civil protection of the trade mark is available for registered trademarks only as for unregistered trade mark it's not covered by the civil protection according to the amended trademarks law except for the well-known trade marks. Chapter three includes: The criminal protection such as: 1-The crime of imitation of trademarks. 2-The usage of falsified trademarks. 3-The usage of trademarks belonging to anther merchant. 4-To sell or expose for selling materials under falsified trademarks or marks belonging to another. These crimes receive penal punishments such as imprisonment and fines.
Sale of a Properly Belongs to Another A Compartive Study Under Positive Law & Islamic Jurisprudence
(2006) Ayman Mohammed Hussein Nasser; Dr. Ali Al-Sartawi
The subject of this research is the issue. Sale of a properly Belongs to Another a Compartive Study under Positive Law & Islamic Jurisprudence. The research includes a preliminary section where I stated the essence of sale in language, law & doctrine where I have compared among these three concepts. In the first section, I’ve tackled the concept of sale in the positive law & Islamic jurisprudence, comparing between these two concepts. Then I’ve limited the range Sale of a properly Belongs to Another, determining what might be included in this sale or not, distinguishing it from a few other suspected systems. In the second section, I’ve dealt with the issue of legal nature for the Sale of a properly Belongs to another in the positive law, discussing the theories said in this concern as follows: 1.The theory of cancellation; 2.The theory of absolute nullity; 3.The theory of relative nullity; 4.The theory of suspended contract; 5.The theory of annulment, for a special kind. Then I dealt with the theories said in rooting the. Sale of a properly Belongs to Another according to the Islamic jurisprudence; such as: 1.The theory Sale of a properly Belongs to Another cancellation. 2.The theory Sale of a properly Belongs to Another stopping. Then I compared between the two doctrines: the Islamic & legal in determining the lawful nature Sale of a properly Belongs to Another where I studied the rule of suspended contract & the rules of contract liable to cancellation; as well as which of the two contracts is more appropriate for the case Sale of a properly Belongs to Another. In the third section, I researched the subject Sale of a properly Belongs to another where I started with determining the legal nature of real-estate sale in the positive law & Islamic jurisprudence, comparing between the two trends. Then, I moved to limiting the nature of the lawful nature for the selling Sale of a properly Belongs to Another according to the positive law & Islamic jurisprudence, comparing between the two concepts, the lawful & doctrinal from the issue Sale of a properly Belongs to Another. In the fourth section, I took the rules Sale of a properly Belongs to Another where I studied first the rules Sale of a properly Belongs to Another between the contracting parties; and the right of the buyer & seller in revoking the Sale of a properly Belongs to Another and the position of Islamic jurisprudence in this concern; as well as the extent of buyer’s right to claim compensation according to the two doctrines: the legal & Islamic; as well as the source of this compensation on the basis of the lawful & Islamic trends. Then, I took the cases of correcting the Sale of a properly Belongs to Another, sush as: 1.The lapse of buyer’s right to sue for an action-at-law against annulment by prescription. 2.The licensing of buyer for the sale. 3.The possession of buyer for the sale. 4.The possession of seller for the sale. Then, I took the rules Sale of a properly Belongs to Another according to the true proprietor where I studied the issue of fixing or licensing the proprietor for the sale inscribed on his proprietorship. This needed at first studying the concepts of fixing & licensing according to the lawful & Islamic concepts; as well as the difference between the two terms in the shade of the two doctrines. And I moved afterwards to the hypothesis of not confirming the proprietor for the sale where in this supposition there were two relations for the true proprietor: the 1st, his relation with the buyer; and the 2nd, his relation with the seller. Yet, in the hypothesis of fixing the true seller for the sale, three results have emerged: 1.The validity of selling in the right of the proprietor. 2.The lapse of the buyer’s right to claim for annulment. 3.The relation between the true proprietor & the buyer. Finally, I researched the rules of 3rd. Party’s Sale in the case of successive sales. Then, there was the end which included the results of the research and recommendations.
Pillar Fault of Omissive Responsibility Comparative Study of Egyptian and Jordanian Civil Laws
(2007) Asma' Musa As'ad Abu Sroor; Dr. Ali Sartawi
This study researched and analyzed fault on which all topics have dwelt. First, the study researched into responsibility as a method which considers fault as its basis. Then the study moved to identify the concept and nature which necessitate a blame for breaching one of the regulations. The study also examined the diversity of regulations which eventually lead to the emergence of diversity in responsibility, legal responsibility and omissive responsibility in particular given the fact that the fault is its basis in the majority of laws. In this context, the researcher surveyed the historical stages which responsibility has passed through and compared between responsibility and security in terms of the latter's concept, elements of difference and similarity with responsibility as a method very close in its objectives to those of omissive responsibility, albeit outwardly. In chapter two, the researcher elaborated on fault as an abstract concept in language and in law. The researcher provided an analysis of some juristic terms which sought to control and specify the concept of fault in order to control its legal status, pertinent to it, and determine its presence or lack of it and the difficulty if not the impossibility of so doing. The abstract concept of fault, by its nature, was intended to form as a basis or foundation for a legal status requiring accuracy which no definition can succeed in describing a concept of an abstract nature. The researcher also investigated the effect of difference in the shape of act, positive or negative, which the fault is based on as well as the impact of difference in descriptions pertinent to the fault, serious or trivial, deliberate or not, on the role of fault in responsibility. Through investigation of the types of fault (civil and criminal) it was found that there was an inevitable link between civil responsibility and criminal responsibility. That is, every criminal fault is necessarily a civil fault but the other way is not true. It should be maintained that the basis of discrimination or differentiation between the two responsibilities was not the act and its description. The differentiation, rather, was based on harm and its difference from both responsibilities. The researcher also found that the fabrication of a new type of fault neglects the abstract pillar and founds for fault and holds the responsibility on the physical/material pillar. It also failed, according to the concept of responsibility, in finding it a necessity to assign it rationality by overcoming the lack of justice resulting from the assumption of rationality as a non-material pillar in the fault. Accordingly, there was failure to account irrationality for harm inflicted on others. The second half of the study examined the pillars of the fault. Chapter three investigated the material pillar, on the assumption of its realization of aggression on the normal person's behavior in the same circumstances which surrounded the perpetrator at the time of committing the act, in order to the considered an aggressive person if he/she deviates from the social control to whom the judiciary was granted wide powers, to determine its presence or lack of it, than it should, particularly given the ambiguity and disagreement over the circumstances taken to describe the act as aggressive from other circumstances which can be taken but accompanied the act and impacted it. Those accompanying the perpetrator have been marginalized and even neutralized on the basis of objective necessity of argument as if the average person, in his carefulness, intelligence and wittiness were enough to explain who the ordinary person is and how he is expected to behave, thus achieving objectivity and neutrality in the legal text. The researcher, at the end of the chapter, analyzed the argument in the Jordanian civil law and Islamic Sharia concerning the concept of aggression, its appropriateness or lack of it with effective system in both of them. Chapter four was devoted to the psychological or non-material pillar in terms of its concept, nature and the truth of its presence in the fault and in the responsibility as a condition of assigning the responsibility or a condition to attribute the fault to the perpetrator. The researcher held a comparison between systems followed in the Jordanian and Egyptian civil laws- and the Islamic Sharia necessarily –for each of them follows a different system. In the light of the research into the validity of the fault as a pillar to establish responsibility, it was found that such establishment was not valid, pertinent to the fault and its nature, thus preventing it from becoming a legal basis, in the accurate and abstract sense, required in any legal foundation. Considering the fault as a basis for making the responsibility a civil one, at the beginning of its separation from the criminal responsibility, didn't emerge as different from the criminal. Rather, it was a case that extends to criminal responsibility assumed by the emergence of the legal principle. However, the difference of assumed purpose from both of them necessitates flexibility in the foundation of the omissive responsibility, hence the fault. The nature of responsibility and omissive responsibility in particular, and assumption of coercion and compensation as an end for it has revealed more clearly the non-validity of the fault as a basis for responsibility and even the non-validity of responsibility as a method that aims at rectifying the harm, bringing back the balance to financial reliabilities coupled with what the responsibility holds of appropriateness of nature which assumes that a deviant act is a basis for it regardless of its description and the necessity for differentiation of perpetrators when it comes to accountability
Contractual Relations Between Parties to the Contract of Letter of Credit
(2007) Samah Yousef Ismail Al-Said; Dr. Hussen Mashaqe
Our study theme focuses on the Letter of Credit , as it is one of the banking operations that played and is still playing a great important commercial and economic role at international commercial and economic role at international commercial level. And due to the lack of legal studies on this theme, I handled in my study an important aspect of the Letter of Credit, that is the Legal Relation which connects the relevant parties to each other based on the following international publications : ·The United Rules Group of International security Practices (ISP), Buletin No. 590 issued in 1998 by the International Chamber of Commerce in Paris, which entered into force as from 1st January, 1998. ·United Nations Convention (UN Convention) of independent Warranties and security, of 1996. ·The United traditions and Conventions Group of Letters of Credit, UCP Buletin No. 500 issued in 1993 by the International Chamber of Commerce in Paris, which entered into force as from 1st January, 1994 . The contents of my study included three major chapters divided into subjects, requirements and sections. In my study, I handled the Letter of Credit and its legal organization implying jurisprudent, legislative and judicial opinions. if I want to give a comprehensive legal definition for the approach to the Letter of Credit, I find in dr. Jorgeit's definition the inclusiveness of definition, as she defined it as a written undertaking issued by a bank called the issuing bank addressed to the seller who is called "The beneficiary", according to the buyer's request who is called the ordering client; in it, the bank undertakes to pay to the beneficiary a certain sum of money when the beneficiary submits the documents which are mentioned in the letter addressed to him, and this letter is called, " he Letter of Credit", during the period specified in it. The contract of the Letter of Credit is independent from the sale contract which is made according to it, as well as from all relations resulted from the operation of the Letter of Credit. Then I presented its importance, benefits and characteristics with which it is distinguished from other contracts. I also handled the cases which show the law that should be applied on the contract of letter of credit. We also have not forgotten to mention the most important documents which should be included in the Letter of credit such as ( the commercial invoice, bill of lading, insurance policy, certificate of origin…etc), and their compliance with the provisions of the Letter of Credit, and the terms which are used in the international commerce in accordance with the rules issued by the International Chamber of Commerce in Paris (ICC) . As it has been dealt with since ancient times, several types of it appeared and it has been divided into traditional and modern types as follows: -The Irrevocable Letter of Credit and Revocable Letter of Credit. -The Enhanced and Non-Enhanced Letter of credit. -The Transferable Letter of credit. -The payable at Sight Letter of credit; Acceptance Letter of credit and Deferred payment Letter of Credit. -The Totally and partially Transferred Letters of credit. -The Security Credit. -The open credit and restricted credit. Then we mentioned the most important principles on which the contract of Letter of Credit is based; the most important principles are the independence of the contract of the Letter of Credit, the principle of apparent coincidence of the documents. Then we mentioned the parties to the contractual relation; the Bank, the ordering client and the beneficiary; and I briefly explained the impacts and obligations of each one of them towards the other and the results of breaching such obligations. But in discussing the legal nature of the Letter of Credit we only discussed the jurisprudent theories which contradicted each other in specifying this legal base. We also discussed briefly the theory of single will, the agency theory, the guarantee theory and the theory of provisions for the benefit of others . Then we concluded with the adaptation of the legal nature of the contract of the Letter of credit , as it is a promise of contracting after giving it the characteristic of abstraction. Then we studied the impacts of the contractual relations on the parties to the Letter of credit by explaining the obligations of each party and the relation of the relevant parties with the intermidiator banks.
Delegation in Payment: Comparative Study Of Egyptian and Jordanian Civil Laws and The Palestinian Draft Civil Law
(2007) Reem Adnan Abdel-Rahman e-Shanti; Dr. Ali Sartawi
The subject of this thesis is about the delegation system in payment or to put more accurately the role of the delegation system in performance. The role of delegation is determined by the legal nature of delegation in payment and legal system of delegation. This study holds a comparison between the Egyptian, Jordanian civil laws and the Palestinian draft civil law. The study in divided into preparation and two chapters. Chapter one held a comparison between the delegation system and novation and assignment and transfer of debt. The basis of this comparison is scientific methodology which depends on comparison between the laws and the legislations, subject of this research, in dealing with the three systems in terms of concept, pillars, types and effects to identify areas of weakness and strength, points of difference and similarity to arrive at the sound legal adaptation of delegation in payment, investigated in the fourth requirement of the last section of this chapter. Chapter two was devoted to the delegation system in payment in the framework of a scientific, analytical, legal, objective detailed study of the delegation system in payment and how delegation is different from characteristics of expressions, terms and similar close legal systems. The chapter also dwelt on the legal characterization given to it given its being a source of obligation. Then the chapter moved to types of delegation in payment according to classification accredited by the common laws. The two types of delegation are prefect and imperfect delegations. Sections two and three of chapter one tackled both types. In section two, the researcher examined perfect delegation, in terms of concept and legal adaptation, be it a contract or not and if so, what are pillars and required conditions for its fulfillment. The researcher dealt with the second requirement in the section explaining the reason for characterizing it as perfect and illustrating the benefits which this type of delegation achieves. The second type of delegation, namely imperfect delegation, was dealt with in the third section of this chapter. The researcher illustrated its concept and pillars and explained its characterization as imperfect, and differentiating it from other close legal systems. The researcher, further, illustrated the embodiment of this delegation in legal posts in the framework of civil transactions and in the framework of international trade. This last framework led me to the necessity of calling for its standardization with the modern common civil legislations and fostering it with in the rules of international trade. In the fourth section, the researcher tackled the rulings which result from delegation of the two types (perfect and imperfect) Based on that, the researcher illustrated the extent of the lawmaker's accuracy in underlining delegation under causes of expiry that equals payment. The study concluded with several results and recommendations.
The Legal Protection to the Delinquent Juveniles in the Palestinian Legistlations
(2007) Mohammad Zeead Mohammad Abdelrahman; Dr. Nail Taha
This research cares about the future, not at the scientific level or the cultural fascination that the scientists and the renewal seekers look at. We deal with an accurate material thing that we can't program it or calculate it as what scientists of mathematics and the physics do, and we can't mix it with chemical substances then this interaction produces what we want from the pure gold. The material that we are talking about is a rare kind that we should study precisely and carefully. They are the nucleus of the society, the basis of the progress of the nations and the peoples. They are the young’s as we call them by our language or the juveniles as the jurists like us want to call them. The axis of this study is the ability of protecting them and revealing the reasons that make them other than that we want from them or other than that the society wants from them, and sometimes the society wants sticking to them but the result is without a good effect, not as the society or experts want. Therefore there was no escape from summarizing the better solutions by following the legal ways. Since the law has a significant importance in the peoples life, because it directs their matters in a form that achieves them a kind of justice and equality and it returns their lost rights, the law has been the solution to the young cases, the social inspirer and the propulsive guide to the straight path and towards a better society. There was no escape from studying this condition in order and with care, starting from the meaning and the definition of the juvenile. The juvenile in the linguistic side in Arabic is a word means the modernism and the modernism in everything, and the intended juvenile is the new the human beings or the young. As for the psychologists were different from the language scientists in it is not in the youngness idea but in the estimation of the age of the young, then the psychological and social considered that the arrogance includes the amount of the psychological maturity and not basically the age, and that the age is nothing but a time census. For the Islamic Sharia, it was estimating the age of the young or the juvenile physically, that is the age of the juvenile is determined at the maturity namely at the puberty. Thereafter the Islam treated that who attains the puberty as a matured ,and consequently Islam did not allow the negligence with that one about all of his sustenance and his actions and even his thinking. As for the law, it has its special consideration and special thinking and sometimes its makers differed or met on its bases or its texts or even on defining the age of the juvenile. The Palestinian law considered the definition of the juvenile regardless of age of the young or the juvenile, and many legislations are with the Palestinian lawmaker in this naming and definition. When we want to discuss the responsibility of the juvenile in every stage of his age, we can’t neglect criminal liability whose basis has been the product of many theories. Some of their theories believe that the basis of the criminal liability comes from the one’s own choice, other theories believe in another principle called the obligation ,which means the that the natural, social, psychological and environmental circumstances control the behaviors of the juvenile, consequently the external factors push the individual or the juvenile to commit crimes or violate the law. But both of the choice and the obligation theories didn’t seem to be satisfying to many jurists, and here comes the agreement theory that mixes between both theories and believes that the actions of the juvenile result from his choice for doing them, but without neglecting the external factors namely the social and psychological factor and the environmental ones that push the juvenile to commit a crime. Although this theory is the more suitable, the Palestinian law took hold of the choice theory exclusively. From the legal aspect, the criminal liability differs from an age to an another, and so do its legal responsibilities. The lawmaker has decided the non-presence of responsibility or abstention of criminal liability to the juvenile from the beginning of his birth and before he reaches the age of seven, thereby the law does not recognize any action resulting from a juvenile that did not reach the age of seven years, The lesson from that are that the doer is a person who isn't capable to realize the validity of his actions. As for the one who reached the age of seven and until twelve, the law punishes him for his criminal actions and made the punishment by putting the precautionary measures and the reformatory arrangements to prevent the juvenile from committing new criminal actions. The law has emphasized the measures that are taken in the juvenile whose exceeds twelve and before he completes the age of fifteen, by putting reforming and precautionary measures, But with the possibility of putting the juvenile in a reformatory. For the delinquent juveniles who did not reach the age of eighteen and their ages arent less than fifteen, the lawmakers have assumed for this category the availability of the incomplete penal capacity, but with deciding a necessary diluted excuse, and that in case of committing crime weather was a felony or a misdemeanor or a violation. And at the same time they allow some precautionary measures working to this category according to specific cases. The measures of the pursuit and investigation related to the juvenile have different rules from what have been explained about the laws and rules dealing with the delinquent juveniles , that is because of the non the presence delinquent of laws specialized in juvenile pans. The law has given the power to the policemen for pursuing the delinquent juveniles with the adult criminals, and the commissioners of the judicial seizing undertake the search and the investigation about the crimes, their perpetrators and the collection of evidences that are necessary for the investigation. The law did not require a special competent authority to the follow-up of a special category like the juveniles for collecting the information and evidences, and that have been complementary to what came in the juvenile reform law applied in The West Bank And the criminals law for the young applied in Gaza Strip. The treatment and the measures that are taken against the juveniles in the primary investigation are different from those that are taken with the adults considering that the lawmaker tries to treat the juveniles and not to punish them on their actions, nevertheless the lawmaker did not differentiate in the taken measures against the delinquent juveniles. The applied legal rules in Palestine regarding to the delinquent juveniles didn’t treat the subject of the primary investigation whether that was in the side that possesses the authorities of the investigation with the juveniles or in the measures whose taking is necessary in this subject. However it has put special rules that guarantee a protection to the juveniles and between these rules what is related to the detaining or what it expresses by the provisional detention. As for the detention, the law has allowed detaining the juvenile, then the accused juvenile can be released with commitment signed by his ruler or guardian, but from the right of the commissioner of the judicial seizing arresting him until he is taken to the prosecution in the felonies or the juvenile interest requires that or that releasing the juvenile may lead to a disorder in the issue courses. The most important measures that are taken against any person whether he is an adult or a juvenile is judgment, and the law did not create competent courts for the juveniles, but the law gave the specialization to the subject courts, and so the juvenile courts are formed from the ordinary courts that have been formed for the ordinary justice as the specialization owner court, taking into consideration some of the matters including its creation place, its formation time, the secrecy quality in the judgments that are being held for the juveniles, with the clarification of the possibility of stopping the sentence execution and what are the reasons leading to the non-ability of the execution. The sentence execution in most of the time takes place by sheltering the delinquent juvenile in a place specified for him for spending a period outside the society that he lives in, in order to let the juvenile move according to a new and regular way to polish his behaviors again. It is known that there are houses for the delinquent juveniles, and there are a few in the Palestinian Authority regions, that work under the supervision of the Ministry of Social Affairs. One of these houses is Al Rabee institution, this institution serves in the governorates of Gaza receives delinquent juvenile between the age of 12-18 whether they are sentenced or detained. Another institution is The hope House for the observation and the social welfare, and this institution works at the service of the northern governorates ( The West Bank ) and Jerusalem suburbs and shelters delinquent juvenile whose ages are between 12-18 whether they are sentenced or detained. These institutions are specified for sheltering the male juveniles and not the females, therefore a house specified for the delinquent and homeless females called The Girls Care House, and it works for the service of Gaza Strip, the northern governorates ( The West Bank ) and Jerusalem suburbs. The delinquent juvenile or who represents him has the right to object or appeal the judgment if he a believes that the issued judgment against him isn't right and isn’t accurate. Therefore the lawmaker created a way to the accused juvenile to express his rejection to the judgment, and he law gave him the right in the re- judgment or even in the appealing in the issued judgments against the delinquent juveniles by appealing in all of the final issued judgments in the subject. One important rule that is considered from the general law order is the prescription .It’s a right that the sentenced can’t give up, because it’s a part of the general law and the complete system. The measures that are followed in the prescription, interruption and the stopping in addition to other measures that followed in dealing with accused adults are also used.
Guarantees of Disciplinary Questioning of the Public Servant, Contrastive Study
(2007) Amjad Jihad Nafe' Ayyash; Dr. Ahmad Mubarak Al-Khaldi
This study investigated the guarantees of disciplinary questioning of the public servant. In this study, I investigated these guarantees in the light of each of the Palestinian, Jordanian and Egyptian systems. In the first chapter, I approached the guarantees that precede the implementation of the disciplinary penalty. I demonstrated the confrontation of the worker with the violations alleged to him. I dealt with the concept of confrontation and the legal basis on which it is based. I found out that confrontation aims at putting the worker in the image of the accusations attributed to him. Although jurisprudence is in not in agreement in determining the basis of confrontation in case of lack of text between the ideas of penalty and hearing the other party, there is agreement about considering it a core procedure. Upon studying the confrontation details, I demonstrated the idea of informing the public servant of the accusations attributed to him, and his right of seeing the disciplinary file. I also studied the guarantee of the public servant to practise his right of defence. I found out that there is some discrepancy and absurdity in the definition of defence right and its relationship with other guarantees. I also discussed the procedures of defence practices regarding oral or written defence, freedom of defence, the employee's right of cross questioning witnesses and using them as witnesses, his right of having the assistance of a lawyer. I found out that the right of defence is one of the general principles that should be respected even in the absence of text. However, there are limits and restrictions that should be respected. I also discussed the jurisprudence disagreement regarding the burden of proof. I found out that some attributed this burden on the prosecution party taking in consideration the principle "the accused is innocent until proven guilty" which is applied in the criminal field. Others believe, based on the idea of the accuracy of administrative procedures, that the very idea of accusing the employee makes the employee guilty and he carries the burden of proving his innocence. Since confrontation of the employee with the charge attributed to him, and granting him with the right of practicing defence shall not be useful, and shall not realize the targeted purpose unless there is a guarantee of objectivity, I discussed the definition of objectivity. Some legislators restrict its range so that it is limited to the idea of not joining between the authority of investigation and verdict while others consider it an extension of defence right. I discussed this guarantee during the stage of investigation in addition to the stage of penalty implementation. I reached the conclusion that the objectivity guarantee finds complete application in the judicial disciplinary system while it is applied more weakly in the quasi-judicial disciplinary system, and it is hardly available in presidential discipline. In dealing with the means of fulfilling the objectivity guarantee, I discussed the reasons of rejection, withdrawal, and non-competence, in addition to the regulations of response and non-competence. I found out that the difference between the reasons of non-competence and the reasons of rejection lies in the following: the first nullifies the sentence or verdict even if the opponents are in agreement because the case is related to public order while opponents can disregard the rejection request or concede it after its application, and so the verdict becomes correct even if the reasons are available.</p> The second chapter is dedicated to the guarantees of disciplinary questioning related to the controls of disciplinary penalty. As I discussed the principle of legality, I found out that the application of this principle in the disciplinary field is inadequate since it includes the legality of penalty while it does not include the legality of the violation. In addition, there are no penalty lists that link between the violation and its corresponding penalty since this is left to the competent disciplinary authority. I also discussed the procedures of commitment to the legality principle concerning the commitment to the legally-recognized limits of penalty, and narrow interpretation of penalty texts, and non-application of disguised penalty. Then I discussed the principle of disciplinary penalty character. I found out that this principle does not allow punishing the employee unless he has committed a violation or contributed to it. Otherwise, the penalty verdict would lack one of its basic foundations which is the reason foundation. Following this, I discussed the unity of the disciplinary penalty stating that the employee shall not undergo more than one original disciplinary penalty for committing one violation. I discussed the stipulations for such multitude. Among the important guarantees that I investigated in this study is the principle of proportion between the violation and the disciplinary penalty. I found out that the administrative judiciary acknowledges as a general principle for the concerned disciplinary authorities the liberty of estimating the proper penalty for the committed violation provided that such estimation shall not be excessive. I discussed the jurisprudence disagreement about the judiciary supervision of proportion. I found out that the application of such principle contradicts with what the legislations used to do in providing penalty lists related to some categories of high-ranking employees. I also discussed the principle of causation in penalty, stating its importance, its place in contrastive legislation, and the rule of such causation when the text is not available. I found out that this rule differs among systems based on administrative nature of discipline (Jordan and Palestine) and the systems based on judicial nature of discipline (Egypt). I also discussed the elements of causation restricted by facts that require penalty, the legal basis of incrimination, and the employee's response regarding defence. I demonstrated the stipulations of correct causation that require that causation should be stated in the main part of the verdict, and that the causation must be proper, coordinated and clear. The third chapter is dedicated to study the judicial appeal against the disciplinary penalty. I discussed the competent party of seeing the appeal in Egypt, Jordan and Palestine. I found out that the disciplinary penalty in Egypt may be issued by administrative circles in addition to judicial parties. Therefore, I distinguished between the competent parties investigating the appeal against the disciplinary penalty according to the part issuing the verdict. I also criticized the Palestinian administrative judiciary for its suffering from having one degree of judiciary, and the inadequacy of one court in looking into all the administrative cases. I also dealt with the two stipulations of interest and dates. I identified what is meant by interest and the judiciary stands of the jurisprudence and judiciary that it is necessary to have it, and the criteria of its identification. I also discussed the dates of submitting appeals against the disciplinary penalty at both administrative and judiciary levels. I found out that such dates are not applicable on the executed verdict. I discussed the regulation of injustice before submitting the appeal and the reasons of appeal. I found out that the disciplinary verdict as an administrative verdict is based on five bases: competence, form, cause, locus, and purpose. Therefore, I confined the appeal causes at the bases that may affect the administrative verdict in one of its bases. As for the appeal causes of the disciplinary verdict, I discussed what is stated in the Egyptian State Board Law that restricts such causes in that the appealed verdict shall be based on law violation, error in its application or interpretation, nullification of the verdict or the procedures taken following the verdict, or issuing the verdict in contrary with a former verdict that exceeded the power of the sentenced case. I also discussed the impact rising from abolishing the disciplinary verdict. It was found out that the abolishment verdict shall execute the administrative verdict retrospectively from the date of its issuance. However, the abolishment verdict has the power of absolute authority regarding the locus but it does not prevent the disciplinary authorities from re-questioning the employee disciplinarily in accordance with the reason of abolishment.
Personal Criminal Liability of War Criminals, Massacres of Jenin Refugee Camp and the Old City of Nablus as a Model
(2007) Hani Adel Ahmad Awad; Prof. Ahmad Alkaldy
The importance of this study springs from its being a methodological research attempt to trace the measures of the Israeli occupation forces and classifying them as war crimes. The study emphasized the horrible acts committed by the Israeli forces during the incursions of the Jenin Refugee Camp and the Old City of Nablus in the year 2002 in order to shed legal lights on the principles and regulations of the international law that govern the personal criminal liability of committing war crimes. At the beginning, international liability has been accompanied by big developments that have affected its legal nature, basic origin, and the necessary requirements for its application, in order to reach its consequences and impacts. During the two world wars, many events took place that resulted in severe violations of human values and principles proved that some illegal acts of the individual such as violations of war laws and committing international crimes may threaten international peace and security. Consequently, the principle of personal legal liability had come into existence which later on was adopted. Essentially, it was applied through holding responsibility of many war criminals following the First and Second World Wars. For that purpose, several trials were administered such as the Leipzig, Nuremberg and Tokyo martial courts. More recently, war crimes courts were held to prosecute war criminals from Yugoslavia and Rwanda. The illegal acts committed by the Israeli occupation forces in April 2002 during the incursions of the Jenin Refugee Camp and the Old City of Nablus are characterized as war crimes. Such illegal acts included aggression against the rights of life, physical safety, and personal security represented by targeting Palestinian civilians, executions outside law, using Palestinian civilians as human shields, targeting medical staff and hospitals, hindering the transference of wounded and corpses of the killed people, severe treatment of civilians and degradation of people dignity, in addition to other war crimes. Knowing the regulations of the criminal international law, it should be noticed that there are many legal procedures that allow the possibility of prosecuting the Israeli war criminals. Such procedures may take the form of issuing a resolution by the UN Security Council to establish a special court to prosecute the Israeli war criminals, or prosecuting them at the national courts of states that signed the Fourth Geneva Charter, and other procedures. In anticipation of prosecuting the Israeli war criminals when the international opportunity becomes possible, the Palestinian Ministry of Justice and the concerned civil community bodies must document the continuous Israeli war crimes against the Palestinian people so as to use them as evidence to indict those who are responsible for such crimes. The right of prosecution the Israeli war criminals must not by no means be affected when resuming political negotiations between the Palestinian and Israeli sides in the future so that justice will not be sacrificed at the altar of political interests
The Questioning in the Parliamentary System, A Comparing Study Palestine and Egypt
(2007) Ahmad Nabeel Ahmad Sous; Dr. Ghazi Dweikat
The parliamentary system is considered the right image, and the model expressing the principle of the separation between the authorities, hence the basis of this system is the balance between the legislative and executive authorities. As a general origin, all of the authorities stand in this system equally without one following or controlling the other. The parliamentary system did not arise as a single upturn, but its rules have consisted due to a long historic development, and the tradition has contributed to a big share in this development until the bases of this system crystallized and its origins settled gradually, where that it did not consist and arises on a specific ideological basis but its emergence came related to specific historic developments, especially in England which considered the cradle of the parliamentary system. The parliamentary system passed by several stages from the development until its basic elements crystallized and its pillars appeared, and the success that the parliamentary system achieved in its original homeland England had a great effect at many of the world countries that quoted its parliamentary system from there. The outwards of the parliamentary system have appeared in the constitutions of many countries and their main laws, from these countries are the Arab Republic of Egypt and Palestine. There is no escape from stating the pillars that the parliamentary system depends on. The first pillar is the presence of an elected parliamentary council, which fulfills all of its basic elements, one of these most important conditions is exercising the actual authority of the parliament, a second condition is that the parliament has to be elected for a specific a renewable period, a third condition is the parliament being independent from its voters during the legislative separation, and that the parliament member represents all of the nation. And the second pillar that the parliamentary system depends on is the duality of the executive authority, where that the parliamentary system depends on the basis of the separation between the presidency of country and prime ministry, so that the president is not responsible, assuming that the complete political responsibility falls upon the ministry in a joint way between the ministries and their organs, namely that the parliamentary system based on the duality of the executive system. The third pillar that the parliamentary system depends on is the cooperation and the supervision between the legislative authority and the executive authority where that the cooperation depends in its nature on the intervention of the executive authority in some legislative authority works. The most prominent aspect of this relation is the participation of parliament with the government in some of their specializations, such as: the choice of president, the choice of Prime Minister, the exercise of the president tasks temporarily, the approval on the treaties that the president holds, the president's performance of the oath that is held in front of the parliament, and the approval of the general budget and the final accounts. The second aspect of the cooperation between the executive and the legislative authorities appears in the participation of the government with the parliament in some of its specializations, such as: starting the parliament sessions, works related to the legislation and the inclusion of the membership in the parliament and the ministry. The second part of this feature is the supervision between the legislative and executive authorities, where that the appearances of the supervision of the executive authority to the legislative authority are: the call of parliament for the holding the session, refusing the holding of the session and postponing the parliament meeting. As for the appearances of the supervision of the legislative authority to the executive authority including: the questioning, the right of holding an investigation, and the political ministerial responsibility. The most important tool of the supervision granted to the legislative authority for watching the works of the executive authority is the interrogation right. Most of the parliamentary countries constitutions stated the right of a member or a group of members in the parliament of the interrogation of a specific minister or the interrogation of the government about the internal matters in their specialization, among the countries that use the interrogation right Egypt and Palestine. The parliamentary interrogation whether in Egypt or in Palestine has elements which are: offering the interrogation to the parliament, answering the interrogation that the minister or the government carries out, and finally the vote of confidence in government or one of the ministers in case of their carelessness in their work was proved or if some of the parliament members requested the withdrawal of confidence. The interrogation being a kind of discussion is divided into two parts, the first is the discussion that targets the political responsibility, and second is the discussion that targets taking suggestions not the political responsibility. The interrogation whether it is in Egypt or Palestine has three results. The first one is that the discussion shows that the government or the minister has carried out their duty perfectly, or the discussion shows that the government didn’t make mistakes or its mistake was very simple that we can pass over. The last expected result of the interrogation is issuing a decision with the condemnation of government or with the condemnation of some of its members.
Predetermined Reimbursement in Civil Law Comparative Study
(2007) Tariq Mhommad Motlaq Abo Layla; Dr. Hussein A. Mashaqi
This study deals with a very important topic at the economic level in general. Predetermined reimbursement refers to previous agreement on the assessment of the required reimbursement incurred due to default of either party of his liabilities according to the contract. Predetermined reimbursement plays a vital role characterizing the contracts with obligatory qualities that help in their execution. In addition, it decreases disputes that may erupt as a result of damages and the volume of incurred reimbursement. Therefore, it prevents the necessity to recourse to arbitration and assessment whether by the judge himself or through seeking assistance of experts. In this way, it is possible to save time, costs, efforts, and money of both the contracting parties and the judicial authorities. This study plays an important role at the Palestinian legal level since it deals with the predetermined reimbursement in the proposed Palestinian civil law in contrastive analysis with the legal systems in both Jordan and Egypt. This study aims at investigating the legal value of predetermined reimbursement. It is essential to recognize the concept of the predetermined reimbursement and the conditions of its realization, in addition to the range of its application, and its discrimination of similar legal situations. Assistance of Jordanian and Egyptian jurisprudence and judicial systems will be sought to reach a clear vision of the legal effects that come up from the predetermined reimbursement and to determine its legal nature. These outcomes are extremely important at not only the commercial, economical and investment levels but also the legal advantages of those who work in both the legal professions and the economical investments. Consequently, this study is demonstrated in a preface and four chapters. In the study's preface, the study investigates the development of the predetermined reimbursement idea in various legal systems. Chapter 1 deals with the general regulations and principles of predetermined reimbursement through two parts: Part 1 deals with the concept of predetermined reimbursement which is divided into two sections: Section1 aims at recognizing the predetermined reimbursement, and its terms in various systems. Section 2 deals with the importance of predetermined reimbursement. Part 2 investigates the characteristics of predetermined reimbursement which is also divided into two sections: Section 1 deals with the quality of the contract. Section 2 deals with the quality of subordinate. Chapter 2 investigates the conditions of realizing the predetermined reimbursement and its application range, divided into two parts. Part 1 deals with the conditions of realizing the predetermined reimbursement which is in turn divided into two sections: Section 1 deals with the general terms of the verdict of the predetermined reimbursement including errors, damages and causal relationship. Section2 deals with excuses presented from the indebted to the debtor. Part 2 deals with the application range of the predetermined reimbursement which is also divided into two sections: Section 1 deals with application of the predetermined reimbursement within the range of the contract. Section 2 deals with the application of the predetermined reimbursement within the damaging act. Chapter 3 deals with the issue of selection and combination of material execution and predetermined reimbursement in addition to its discrimination from similar legal situations. Chapter 3 is also divided into two parts: Part 1 is dedicated to the issue of selection and combination between material execution and predetermined reimbursement which is in turn divided into two sections: Section1 is dedicated to the issue of selection between material execution and predetermined reimbursement. Section 2 is dedicated to the issue of combination between material execution and predetermined reimbursement. Part 2 deals with the discrimination of the predetermined reimbursement according to similar legal situations. This part is divided into five sections: Section 1 deals with the discrimination between the predetermined reimbursement and down payment. Section 2 deals with the discrimination between the predetermined reimbursement and peace-making. Section 3 deals with the discrimination between the predetermined reimbursement and material threat. Section 4 deals with the discrimination between the predetermined reimbursement and substitution commitment. Section 5 deals with the discrimination between the predetermined reimbursement and optional commitment. Chapter 4 deals with the effects of the predetermined reimbursement and to what extent its regulations are related to the general system. This chapter is divided into two parts: Part 1 deals with the judge's authority in modifying the predetermined reimbursement which is divided into two sections: Section 1 deals with the judge's authority in assigning the predetermined reimbursement. Section 2 deals with the judge's authority in increasing the predetermined reimbursement. Part 2 deals with the regulations of the predetermined reimbursement and general system which is divided into two sections: Section 1 deals with the issue of the general system. Section 2 deals with the regulations of the predetermined reimbursement and general system since the methodology of the legislator regarding this issue is a peculiar methodology in itself since the majority of laws permitted the contractors to agree upon the amount of reimbursement at the beginning of the contract and to make additions later on. This means that the legislator does not consider that the predetermined reimbursement does not contradict the regulations of the general system. However, the regulations of related to the predetermined reimbursement have violated the principle that they have adopted since they allow the judge to assign or increase the predetermined reimbursement if the amount of predetermined reimbursement is not proportional to the incurred damage, and they considered the judge's authority a part of the general system and that the predetermined reimbursement must not violate it.
The Contract of Surety ship and Consequences of Applying it: Comparative Study of Almagalaa and Egyptian Civil Law
(2007) Su'ad Tawfiq Suleiman Abu-Mashayekh; Dr. Ghassan Khalid
This study examined the consequences resulting from the application of the contract of surety ship. It's a comparative study of Almagalaa and the Egyptian Civil Law. The researcher began with a definition of suretyship, its characteristics and parties according to Islamic fiq and Almagalaa , on one hand, and the Egyptian Civil Law on the other hand. Chapter one was devoted to types of suretyship interms of source of liability. This suretyship is one of agreement which the judicial and legal lawbook was content with. The chapter also dwelt on the practical importance of differentiating between the three types. It was found that suretyship falls into civil and commercial, in terms of nature, and there is a practical significance in differentiating between the two types given the difference between civil and commercial works in general. In this chapter, suretyship was distinguished from similar legal systems. It was found that the position of consequential bailsman is what distinguishes it from other legal provisions. In chapter two, the researcher examined the pillars of the contract given the fact that the suretyship is a contract itself. 1.Satisfaction. In this pillar, there are two opinions. One opinion conditions the bailsman's agreement only for the suretyship to take effect. The other opinion conditions the consent of the bailsman and the creditor's acceptance. The researcher gave greater weight to the opinion that conditions the consent of the bailsman only for the suretyship to hold if it's a donation. Accordingly, the bailsman shall have the qualification of donor. However, if the suretyshp is in return for something, it's conditioned on the competence of discretion, pertaining to the bailsman and the creditor but it's not conditioned on a certain competence, pertaining to the creditor, for the suretyship to take effect. The chapter also investigated the necessity for the bailsman's will to be free from shortcomings/ drawbacks of satisfaction: coercion, error, deception and exploitation. The researcher examined the proof of suretyship contract, its interpretation according to Almagalaa and the Egyptian Civil Law. The section was entitled "Satisfaction". 2.Venue. The researcher studied the presence of the original liability or the possibility of its presence. The liability has to be true and legitimate. It has to be specified in order for the venue of suretyship contract liability valid because the bailsman's liability is void, existence and otherwise. 3.Reason. The reason for the suretyship contract, between the bailsman and the creditor, might be one of compensation or donation. There is no relevance to the reason for the relationship of the bailsman with the creditor unless its illegitimate. In this case, the bailsman may hold on, in front of the creditor, the revocation of the suretyship of contract given the void of the reason for liability between the bailsman and the creditor. Chapter three was devoted to the study of the consequences resulting from the application of the suretyship contract. In this chapter, the researcher tackled the creditor's right. That is, the right to ask the bailsman and execution on the bailsman's assets unless agreed upon otherwise, or if the bailsman's assets unless agreed upon otherwise, or if the bailsman fails to pay upon the creditor's request first in accordance with what the law stipulates for him. In contrast, the bailsman's rights are the rebuttals according to the original liability in terms of void and expiry and exceptions stipulated as a provision. That is, the payment upon the request of the borrower by the bailsman. This right is stipulated in the Egyptian Civil Law. In Almagalaa, the bailsman may not do so unless agreed upon in the contract or in a subsequent contract that stipulates that the bailsman may not ask the borrower. The payment ruling of the request applies to the rebuttal ruling on execution. Concerning the payment by division, it was found that there was no difference between Almagalaa and the Egyptian Civil Law. The other exceptions, loss of deposits, due to creditor's error, exception due to the creditor's taking of execution procedures against the borrower after the bailsman's warning of him and the exception of the creditor's failure to apply in the borrower's bankruptcy. This was stipulated in the Egyptian Civil Law only. The researcher, however, okayed that on the basic of general legal rules in Almagalaa which give the bailsman the right to hold on to such exceptions. The study concluded with the consequences of the bailsman's execution of his commitment to the suretyship contract in terms of the extent of his right of recourse to other personal bailsmen and recourse of real bailsman or owner of estate upon the bailsman's faithfulness. The study ended with the results of the study, conclusions and recommendations.
Warranty of Exposure and Maturity In the Sale Contract: Comparative Study
(2007) Ribhi Muhammad Ahmed Hazim; Dr. Hussein Mashaqi
This study has tackled, in research & analysis, one of the commitments laid on the shoulders of sellers; that is the warranty of exposure and maturity in the contract of selling, a comparative study. And I've dealt with this topic of research in four chapters as follows: A preliminary chapter, entitled the essence of the selling contract and the compliance with the warranty; where I've taken in it the essence of the sale contract; its nature and identification; as well as its distinction from the contract of barter simply because the barter contract is the basis of establishing the sale contract.This chapter come in three topics; such as, First, I've talked about the essence of selling contract in various legislations; as well as the development of the sale contract in the Roman, French, Egyptian and Jordanian laws. Second, is where the study has tackled the selling contract simply because it is characterized by several characteristics; such as, it is a consensual contract, an opposition contract, obligatory to both sides and transferring for property. Third, is where I've discussed the essence of commitment by warranty besides stating its causes & kinds. The first chapter is entitled the warranty of exposure.I've talked in it about the opposition; and I've discussed in it as well the opposition in general throughout four topics:First, is where I've illustrated the concept of the seller's commitment after his personal opposition; and the interactions of opposition issued from it; and the merits of the seller's compliance by the warranty of that opposition.And I've mentioned the provisions of the seller's commitment by the warranty of his personal opposition.Second, I've stated in this topic the creditor and debited by the warranty of opposition which is already issued by the seller.It is where the purchaser is a creditor in it by the warranty; and the seller might be indebted towards the purchaser.Then, I've discussed the proprietorship of selling by prescription as a few legislations have authorized the proprietorship of the seller fro the sale in prescription. In the third topic, I've manifested the concept of the seller's commitment by the warranty of opposition issued by the 3rd.party; and I've talked about the merits of that commitment and its provisions.And I've tackled as well the sale establishing warranty; then, the sale registered & not registered; and later on, the sale establishing commitment in the liability of the seller by the warranty of opposition and maturity towards the purchaser. In the fourth topic, I've researched the creditor and debtor by the warranty of opposition issued by the 3rd.party where the purchaser will be a creditor in it and the seller becomes a debtor by the warranty of opposition issued by the 3rd.party; and I've demonstrated in it who is the compliant by the warranty in case of consecutive sales. The second chapter is entitled the commitment with the warranty of maturity.I've showed in it the concept of maturity where there are tow topics:First, I've talked about the merits of commitment with the maturity and the prosecution of demanding; and I've shown as well the impact of the seller's intervention in the prosecution of maturity and not. Second, I've talked about the effects of maturity; such as, its effect between the seller and creditors, the purchaser and creditors; and the effect of the whole maturity between the seller and purchaser as well as manifesting the value of compensation demanded and its amount. The title of the third chapter was the amendment of the warranty rules; their alleviation, strictness and indemnity.The chapter was divided into two topics:I've shown in the first one the alleviation and severity of warranty rules where the seller is to commit to more or less than what is set in the general statutes of the warranty rules; as well as showing the attitude of the comparative law concerning alleviating and strictness of the warranty rules. In the second topic, I've talked about the consent to indemnify from warranty, the cases of its falling; and I've demonstrated the concept of indemnity from the warranty and its provisions; and I've stated the attitudes of comparative law concerning indemnity from the warranty; and I've talked as well about the attitude of the comparative law in the cases of warranty falling where there are cases that the right of the purchaser falls in them wholly or partially. The recommendations of the study are the following: First, the amendment of article (551) in the Jordanian civil law because it considers the suspended contract a true one after its authorization; and I, personally, look upon it in such a way even before it is being authorized; and the test of it is to be as follows: 1.In case the proprietor has acknowledged the sale, the contract would be valid, executive and compliant in the right of the purchaser. 2.And it would be valid, executive and compliant in the right of the purchase as well in case the proprietorship of the sale was transferred to the seller after the issuance of the contract. Second, the amendment of the third paragraph of article (505) in the destiny of complementary improvements performed by the purchaser on the sale as it did not distinguish whether the seller was of good-willing or not.The text of it is to be as follows: 3-And the seller guarantees to the purchaser what he has innovated in the sale where the former guarantees the to latter the value of those innovations if the seller was of bad-willing. Third:The Jordanian legislator should frankly state whether it was possible to amend the rules of warranty in the sale because such texts were ignored in the Jordanian civil law. Fourth, the amendment of first paragraph in the text of article (467) from the Palestinian civil law project because this article did not state the effect of the purchaser's knowledge concerning the maturity of the sale to the 3rd.party on the selling, or the effect perpetrated on that.I suggest that the text of the fifth paragraph is to become as follows: 5-In case the maturity of selling on the action of 3rd.party arises, the seller will be responsible for the returning of the whole amount of the sale on maturity unless it was confirmed that the purchaser aware in time of selling of the cause of maturity; or that he has purchased a falling option. Fifth, we wish the Palestinian legislator might change article (455) of the Egyptian civil law by article (455) of the Egyptian civil law when comparing it with article (467) in the Palestinian civil law project because article (445) in the Egyptian civil law talks about the warranty of hidden defects in the sale whereas the comparison occurs on the amendment of warranty rules in the Palestinian civil law project compared with the Egyptian civil law. Sixth, we wish Egyptian legislator on classifying the selling of the 3rd.party's proprietorship to consider the contact a suspended one instead of making it a revocable contract because the revocable contract has valid impacts on its parties.And the revocable contract as it was quoted in the Egyptian civil law has been based on two rules:the contract might be revoked by the purchaser; and the impacts of the contract are not valid on the right of the real proprietor of the sale.The purchaser is not entitled to revoke the contract simply because the revocation of it by the purchaser or authorizing it is authorizing it is issued by a personal who does not own the sale.
Confession in the Palestinian Criminal Procedural Law, Comparative Study
(2007) Lu’ai Dawood Mohammed Dweikat; Dr. Nael Taha
This study deals with the subject of confession from the side of the accused person being considered as a proof of prosecution according to the Palestinian Criminal Procedural Law and the Comparative Law. The study consists of four chapters. The first chapter studies the conception of confession both literally and technically or legally. In addition، it talks about the different types of confession with regard to the authority before whom it takes place، the credibility it has and the shape it takes. Moreover، I have dealt with the legal nature of confession explaining how confession is considered as a legal action not a legal conduct، since law itself organizes the consequences of confession without having any interference from the side of the person who gives the confession. The second chapter talks about the conditions which make the confession valid. In this chapter، I have illustrated that for the confession to be considered valid، productive and with legal consequences، it must a bade by the following conditions: 1.it must be given by a person who has a procedural qualification. For this condition to be applied، the person must be accused of committing the crime referred to the legal value of the confession given by one accused person against another، in addition to the confession from the side of the lawyer on behalf of his client (the accused person). The accused person must also have the mental perception and consciousness at the time of giving the confession. Hence، I have explained the cases of confession given by persons who are underage، lunatic or drunken. 2.The confession must be given under a free and conscious will of the accused person. Throughout this section، I have pointed out to cases where confession is considered null and void، these cases or techniques are divided into: a. Explicit or physical، such as coercion، overburdening the accused person through very long interrogation، using police dogs، using hypnosis or anesthetic drugs. implicit or Psychological، such as promising، tempting threatening the accused person، forcing him to take an oath or using deception or artifice. 3.The confession must be compatible or agreeing with fact and logic. 4.The confession must be given by applying correct procedures. I have later on distinguished between confession، testimony and civil avowal explaining similarities، and differences between them، in order to make it easy to understand the nature and indications of each of them so that one would not confuse between them. The Third chapter deals with the credibility of confession and its consequences upon prosecution; as the credibility of the confession varies according to، and depending on، the side who issue it; i.e.، it is given by the accused person or another person. Moreover I have talked about confession division، including the cases where division is allowed، the cases where division is not allowed and the role and authority of the court in dividing the confession. In the next section of this chapter، I have illustrated the effects of confession upon prosecution. I have studied this subject from two dimensions: 1.Procedural dimension which refers to the procedures applied during the legal proceedings of a case whether it is in the stage of investigation، initial interrogation، after the Attorney General takes a decision to institute legal proceedings and after bringing the case to the court by the Public Prosecution. Besides، I have explained the consequences of the confession given before the court، the consequence of the confession given after the initial sentence and the consequences of confession given after the final sentence. 2.Objective dimension which refers to the consequences of the confession upon the criminal penalty of the crime (s) committed and confessed by the accused person. Examples of such crimes are bribery، state community crimes، the crime of instituting a group to plan and execute crimes، the crime of forging seals، banknotes or stamps; and finally the crime of perjury (false swearing) In the fourth and last chapter، I have studied the cases of Confession recantation and confession nullity، I have first referred to the ability of the accused person to recant his confession، the court authority in evaluating this recantation and its consequences and indications of such a recantation which can tell if the recantation is right or not. The second subject I have studies in this chapter is the confession nullity referring to the most important aspects or causes which make a confession null: 1.Lack of or absence of procedural qualification from the side of the accused person. 2.Absence of free will be of the person who gives the confession. 3.of agreement or compatibility between the confession and facts or logic. 4.Absence or lack of correct procedures during giving the profession. Finally، I have illustrated the effects of null confession upon the proceeding and subsequent procedures.
Arrested in Penal Legislation Palestinian, Comparative Study
(2007) Muhannad Arif Sawan; A. D. Mubarak Ahmad Khalidi
Thesis topic arrested in the penal legislation Palestinian Magarnhabgyerh of penal legislation of other legislation, such as Egypt and Jordan, where the British took freely rights legislation barring Bhaala prejudice in certain situations, the longer the arrest of the most urgent actions that Harrihfho limits, but Yadamhavi conditions Mainhlmakan interest safeguards prevent violations of individual freedoms and regulate the border which the authorities Alaamhassistas Bahawaadm involvement in the darkness of prisons without legal basis, without reliance on the principles, norms, rules and penal legislation, which states quite frankly the inadmissibility arrested and remanded rights Bammerman not legally competent authorities Hence the importance of this study. The researcher discussed paving the arrest by the conventions and international legislation (charters and declarations) and the arrest in legislation Arabhutenaul researcher in the first quarter definition of the law enforcement and judicial duties and powers of legislation based Alvelstineutarif criminal prosecution, powers and function of the trigger punitive and functioning as the enforcement of judicial and prosecution are the powers and functions related lawsuit punitive started from the stage to accept the complaint and the evidence gathered via MOVED criminal case and conducted by the Public Prosecutor and the researcher in the second quarter what tariffs and arrested him various aspects of jurisprudence and the judiciary to give a clear picture of each corner and then viewed it as identified through the arrest coupled relationship liberties the fact that the individual arrested symptoms, which are freedom and hence the distinction between arrest and some of the actions might like him stop and stop and physical exposure. In chapter III, a researcher with the arrest of authority law enforcement officers in the arrest and conditions of its implementation, cases and then search procedures after the arrest and then examine the elements of the crime arrests and all that through legislation compared to other legislation Palestinian, Jordanian, Egyptian and British and check these conditions and big and put it in balance with the extent of achievement of justice, fairness, freedom and human dignity. To achieve the best results, provide useful study meets the precise details must be followed researcher tried scientifically accurate and certified From this standpoint, the researcher followed the curriculum interpretative and analytical articles dealing with the Code of Criminal Procedure and Palestinian research on the topic and other punitive legislation and the gloss accurate, then followed researcher analytic method for devising what is inherent in it and then followed the comparative method by comparing the legal texts to each other and neither of them know more precisely whether the wording or meaning, which is more in line with the same researcher, and finally followed the curriculum cash to not only the interpretation, analysis and comparison, but we must all criticism a statement beauties and disadvantages and to develop appropriate texts in the run and then followed by Conclusion The research findings and recommendations.
The Legal Regulation of Electronic Contracts
(2007) Yahia Yousef Falah Hassan; Dr. Ghassan Khaled
Internet as other interventions evolved gradually from military use to civil use, trade and an electronic contracts in which agreement is done with an open communication net through a seen and heard mechanism that facilitate the interaction between the acceptor and the taker. Globally, electronic contracts are negotiable and not obligatory. There is always a possibility to negotiate on these electronic contracts according to the nature of each electronic contact. Electronic contracts are considered international contracts, crossing boundaries, and not confined by boundaries of any country. Electronic contracts may be commercial, civil, or mixed according to the nature of each contract, and the relationship that governs the parties of the contracts. The acceptance in the electronic contract should be obvious and containing all necessary elements. The showed image on the screen of the computer must reflect the real situation for the goods without unexplained or lost items. The acceptance should be clear and explicit. Silence is not considered as acceptance in electronic contracts. Electronic contracts are governed by administrative law which the parties choose. In case there is no agreement between the parties on the law, the judge may extract the hidden well from similar situation and adopt the closest law to the electronic contract based on the place of the contract or the nationality of the parties. For approval of the electronic contact, the Palestinian law deals with the modern communication instruments in the spectrum of exceptions, so it does not obligate the existence of complete written evidence to made it legal. It considers the freedom of obligation in trade goods, taking into account that the nature of the basics of Law of Evidence is completive not forcible, and the parties can agree on its opposite. The signature on the electronic contracts takes different forms depending on its nature, including biometric, numerical, and pen signatures. There are a lot of legislations to govern the type of the signature to give it the needed legal entity. The researcher concluded that electronic signature may be used under the Palestinian Law of Evidence after the agreement of the parties, and this returns to the freedom of the parties to agree on the way to guarantee their activities. Electronic signature is accepted according to the Palestinian law in certain situations like the formal documents, and the documents agreed upon by the parties. However, electronic signature is not accepted according to the Palestinian law in certain sensitive and special situations like Islamic Waqf, wills and its revisions, the disposition of immovable properties, entrusts, and the personal documents.
Israeli Apartheid Wall in International Law
(2007) Reem Tayseer Al-Arda; Dr. Basel Mansor
My thesis deals with every complicated issue in Palestinians life that is, the wall which most of was constructed on the Palestinians lands. Before this in advanced chapter I have discussed the historical roofs of this wall to prove that it is not for fighting terrorism and explosive attacks inside Israel as Israel claims but the other real purposes are to create anew accomplished fact and new boarders that might not be changed. In the first chapter I have handled the legality of the wall which is the content of the subject where I present that the construction of the wall on the occupied Palestinian lands is against the international law and against all the International traditions and treaties especially the united National convention of human rights and any other related international agreements. Moreover I handeted in this chapter the united Nations attitude towards the wall's issue especially (security council and General Assembly), I have deduced that General Assembly attitude is stronger and greater than that of the security council which always restricted the right of -veto-when the attitude is for the Palestinian national interest. The second chapter is specialized to discuss the international attitudes towards the wall. I noticed an obvious difference among these attitudes, some of them agree, others disagree and third is a moderate. The states which have common interest, with Israel have attitude to those witch sympathize with the Palestinians issue. I also found that the Arabic states attitude is no more than condemning and deluging and silence. But according to the Palestinian attitude which is the stronger because some issues that are directly related to the wall when they are positive or negative in terms of Israeli attitude towards the wall they are two attitudes one the them agree the other disagree the idea to constrict the wall on the occupied Palestinians lanes. At third chapter I have deled the role of international court of Justice in Lahai in terms of which was constructed on the occupied Palestinian lands. This role was very strong since it issued a resolution to destroy the built parts of this wall, to compensate for their damages because of the wall and to stop the constructing work and this means that the resolution is for the Palestinian interest. This resolution consists of 150 pages, but I didn't discuss it in details because of the resented number of pages of thesis. I neatened only the most important points which demand from Israel to destroy the wall. In the same chapter I have discussed the authority of international court of Justice to issue such are solution in term of the wall or not because Israel and other states were against this court and they have suspected in the court authority for many reasons mentioned them in details in third section of this chapter. At the end of the third chapter I have discussed the political and legal importance of the resolution that issued by the international court of Justice which is considered as a victory to the Palestinian Nation. In the concluding section I have discussed all my general deductions on all the aspect of thesis.
Responsibility of the Contractor and the Engineer for the Guarantee of Building Solidity in the Jordanian Civil Law: Comparative Study
(2007) Adel Abdul Azeez Abdul Hameed Samarah; Dr. Gassan Khaled
This study examined the responsibility of both the contractor and the engineer for the solidity of a building after its completion and delivery to its owner. The significance of this study lies in many aspects: protection of the owner of the building who usually has little experience in building matters especially when it comes to defects، which may appear after completion and delivery، which threaten the solidity and safety of the building. This subject is also important because it protects public interest if buildings and other permanent installations are solid and safe. The study began with the legal nature of responsibility in order to find out the legal basis on which it rests whether this basis is in a contract or a harmful act or law. It was found that the legal responsibility was founded by the law. Its provisions are different from those of contractual or inadequate responsibility given the fact that it's a responsibility pertinent to the public system and it has a specified timeframe. It only concerns one specific kind of damages. It also has specific range in terms of persons on whom it applies: the contractor and the engineer، on one hand، and the owner، on the other hand. The Jordanian lawmaker has regulated the provisions of the responsibility pertinent to the contractor and the engineer in the articles of the Civil Law (articles 788،789 and 790).Article 788/1 stipulates، if the contracting contract is based on acceptance of the building designed by an engineer provided that it's executed by the contractor under his/her supervision، then the two shall be guarantors in compensating the owner of the building if a whole or partial demolition occurs to buildings or installations within ten years. They shall also compensate the owner for any defects that threaten the solidity and the safety of the building if the contract does not include a longer period This text clearly shows that the Jordanian lawmaker has put the responsibility on the contractor، and the engineer who produces the architectural design only. As such، the lawmaker has narrowed down the scope of personal responsibility and has limited it to the contractor and the architect although the architectural process has been carried out by several engineers who have different specializations. Those people also have contracting agreements with the building owner، and therefore، they should be engaged in this personal responsibility for the sake of protecting the owner's interest as well as the public interest. It is worth nothing that the civil engineer plays a leading role in the execution and supervision of the work. Therefore، it is necessary to amend the aforementioned text، thus expanding the scope of personal responsibility to include all engineers employed in the building processes. In conclusion، this study explained the provisions of responsibility of the contractor and the engineer. It specifically pointed out the penalty involving the responsibility: compensation of the building owner for any damages caused during the execution whose conditions are spelled out، or through implementation in its two forms: cash and non-cash. The study also investigated the implications of selecting the engineer's and the contractor's responsibility. That is only possible if the force majeure is proved or it s the owner's mistake or the mistake of the others which also has the nature of force majeure. Finally، the study dwelt on the role of will in amending the provisions of this responsibility. It was found that conditioning or agreement on limiting the responsibility or exempting from it may not be permitted and any condition demanding otherwise is considered legally null. However، the owner has the right to exempt the contractor and the engineer from compensating him when it's due.
Detention in Palestinian Criminal Procedure
(2007) Mohammad N. Weld Ali; Dr. Na'el Tahoa
This study deals with the preventive Detention (Detention) in the light of the Code of Palestinian Criminal Procedure and its modified articles including the articles of Remand procedure. The study discussed many subjects are contacted the main topic of this thesis. The study introduced the definition of Remand according the linguistic, scholarly, religiously and legally, despite of the differences between all of the scholarly definitions but they agreed that the main concept of Remand is: Arrest the accused person for a period of time until the end of investigation under the conditions and controls that established by the law. But because the law used the expressions of remand and arrests, the study used the Remand as the meaning of arresting the accused person for a period of time until the end of investigation under the conditions and controls that established by the law. It is preferable to use one and specific legal terminology to unify the legal procedures between Gaza Strip and West Bank. This study distinguished between the Remand and the similar procedures such as, the distinct between the administrative detention and Remand in related with the definition, authorized authority and the period. The study talked about the historical developments of the concept of Remand during the ancient Egyptian era, Roman era and Islamic law (Shareaa) which was and still the most important legislative resource in Palestine. In addition to the international treaties and legitimacy. In the chapter tow, the study discussed the legal adaptation of Remand through discussion the principle of presumption of innocence which suppose the innocence of the person until proven otherwise, by final pronounced judgment that the person is guilty, then conciliation between all of this and Remand, and the distinct between the Remand and punishment. The study introduced the justification to arrests some person without final condemnation judgment, some of these justifications are: To calm the public opinion, preventing the accused fleeing, and the preservation of evidences which it might be destroyed or covered by the accused person if he/she stayed free. In addition to the preservation of the accused from the retaliation and to implement the punishment against the accused in case of guilty. In the second part the study discussed the objective conditions of arrest which are: the Crimes that allow executing the arrest against the accused according two categories, first one takes magnitude penalty if the Crime committed a felony or a misdemeanor punishable by more than six months, the criterion of residence which allows the arrest of the offender with unknown residence. The second condition, Presented by the need for a sufficient indications and reasonable reasons for the issuance of arrest warrant. Presented in the third requirement which is the arrest period it shown the standards that explained the length of stay (Remand or arrest) In terms of setting a maximum of arrest, it indicated how long can the jurisdiction Law enforcement and The Public Prosecutor arrest the accused person, The term can Magistrate issues an order as well as the Court of first instance. It presented at third subsection the Formal conditions to issue the decision of arrest and which authorized authority can issue the warrant of arrest and the necessity of question before the arrests, causing a decision of arrests and the implementation arrest warrant during a certain period, the evidences that contained in the arrest warrant which is The name and description or the position of the issuer of the arrest warrant, the endorsement on the decision by the formal stamp, The details of the accused, The charge that attributed against the accused, The specific article of the legal charge, the period of arrests, the accused address and the Commissioning of The superintendent of the prison to imprison the accused person. In the third chapter, it presented the end of the arrests or remand by the releasing as shown the definition of release and its considerations, the specialized authority, the types of release which contains, the mandatory release that enforced by law, The Jawazi release which issues by the public prosecutor or the court upon the self initiative or upon the accused request. It explained the Suspension release with guarantee, in addition to the definition of it and its conditions and how could be evaluated. At another subsection, it presented the effects of arrests which including the Counted of arrest period from the final judgement and the opinions of scholars about this. It discussed Re-arrest the accused again but it should be conditioned with causing decision and new situations. At third subsection, it talked about Control over the legality of the arrest decision that will be by the jurisdiction initiative or upon of the accused request. It presented how the detainee treatment should be and what the rights that should be given for the detainee according the international, Palestinian principles and laws. At the conclusion, it reached for general conclusions about all this research with some proposals to modify some formulation of some Palestinian articles in the Criminal Procedure law to afford more guaranties for the human beings and individual freedom.
Residence Search According to the Palestinian Criminal Procedures Law, A Comparative Study
(2008) Mohammed Ali Mustafa Ghanem; Dr. Nael Taha
The Researcher studied Residence Search according to the Palestinian Criminal Procedures Law, after he discussed a number of related subjects to the Thesis in a preliminary chapter, where he showed the definition of Judicial Search according to a number of Law jurists, since the Palestinian Criminal Procedures Law didn’t define it. The jurists have agreed that Judicial Search and Residence Search are investigation procedures executed and/or permitted by a specialized authority which is in this case The Attorney General according to our legislations. This procedure shall not be permitted unless a crime or a misdemeanor occurred, and therefore search for criminal evidences of the suspected crime is needed. The researcher also tried to define a Residence. The researcher went through jurists opinions about defining a residence, where all agreed that the substance the residence is made of doesn’t matter. The researcher assured that possessing an ownership document of the residence is not important since the resident could be an owner or occupying it by force. The researcher discussed in preface topic the residence sanctity according to Islamic Religion. The researcher also explored a summary of residence sanctity in the International and Arabic legislations and Constitutions. The researcher specified the first chapter to discuss Residence Search and differentiate it from other types of search. He also defined Search and Residence Search and showed that there’s a difference between it and other search types, he also discussed the concept Search, its purpose and the party responsible of performing it. The researcher also explained Protective Search and its legal bases, and differentiated between entering a residence and searching it. The first topic also includes that there are some places that should be inspected through special procedures, for example medical clinics, attorneys’ offices, public stores and coffee shops, hence these places are considered as residences and treated that way. Public stores could be entered by policemen as long as its doors are opened and are receiving customers, policemen shall not inspect the desk drawers of the owner, nor they can search hotel rooms because they are protected and treated as residences. In the second topic the researcher discussed differentiating Residence Search from other procedures of seizing evidences, such as examination, interrogation and delegation of a specialist to the crime scene. The researcher explained Personal Search in details. He also commented that female personal search should be carried out by another delegated female only. In the third topic the researcher handled the nature of search carried by judicial police officers, whom are delegated by the Attorney General, and also discussed the search when arresting an accused person, because arresting an accused person in case of flagrant does not have to exclude this case from the ruling act of Article 2-11 of the Essential Law. In the second chapter the researcher discussed the objective and descriptive conditions of search, where he explained in the first topic the descriptive conditions such as attending the accused person and the witnesses the search process and the date and time of the search procedure. The researcher mentioned the effects resulting from neglecting or not applying these two descriptive conditions. The researcher also indicated that the search warrant should include the reasons for the search, those are elements from which an attorney general officer extracted enough evidences to perform search, and which is the search warrant is issued after. In the second topic the researcher discussed the objective conditions concerning residence search which determine the conditions in which the search could be performed. The study shows that anything/place that could be considered a place to keep a person secrets is a legible place to search, so it could be the person himself, and the accused person could be put to medical examination like gastric lavage, the researcher sees that this procedure is crucial to make justice and for the society’s good, and is not an offense against the accused person dignity. The researcher also specified that some places and persons are immune to this procedure for international, individual or constitutional considerations. Embassies and diplomats residencies are prohibited to be searched, so as themselves and their mail. There are also considerations and immunity given to Legislative Council Members, so no search is allowed at his luggage, house, estate or any belonging to him as long as he has legislative immunity, except if the legislator is caught committing a crime in a case of flagrant. The researcher also noted that the investigation authority cannot order investigating a Legislator residence even though a crime committed by one of his family members living in his residence, unless a warrant is issued to stop his immunity. The study also discussed Vehicle Search procedures, the researcher distinguished between private and public service vehicles, he also distinguished if the vehicle is inside a residence or outside. The researcher also showed that search is an authority of the Attorney General Officers and performed with their presence, or by delegated Judicial Officers, the researcher also talked about place and type specialty and that the Search Warrant must be confirmed by writing. The researcher discussed the effects of residence search in the third chapter, in the first topic he talked about seizing objects, which applies to physical objects like guns used in a crime, letters and estates, and nonphysical objects like spying on phone lines and recording personal conversations, these are not included within the search but follow a specific different procedure. The researcher also discussed the legitimacy of accidental seizure and how to deal with the seized objects. The seized objects could be confiscated, if needed, for the State benefit and could not be returned to their former owner. In the third topic the researcher discussed the Void of Search and Void types; the legislator himself may handle Void cases, this is called Legal Void, or the legislator can oversee a general principle for the cases that could be considered Void if the procedure not followed, this is called Auto Void, he explained that void could be decided for the benefit of the public or the System, then it’s considered as Absolute Void, or could be for the benefit of the opposing party which is called Partial Void. The researcher commented that violating Search Objective rules and conditions is a part of the Public Law and the consequences will lead to Absolute Void. The researcher also mentioned the effects of Search Void, because it’s done by a judge or juries decision, the researcher discussed the effect of Void on the procedure itself. The researcher also explained effects of procedure void on the previous procedures, whereas the effect on proceeding procedures is strict to the procedures that are based on the void procedure. The researcher commented on the possibility of repeating the void procedure and correcting it. The researcher put a conclusion where he listed the most important results along with general suggestions on most subjects of the thesis; he also suggested editing some articles of the Palestinian Criminal Procedures Law.

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