الموازنة بين أثر الحكم بعدم الدستورية والحقوق المكتسبة: دراسة تحليلية مقارنة

الملخص EN

The idea of acquired rights in the field of constitutional law is crystallized by the inability to prejudice some legitimate legal centers, as a result of the order of the effect of the ruling unconstitutional in terms of time with this judiciary in the majority of countries, because this judiciary differs in determining the impact of the ruling on unconstitutionality on the law that violates the constitution, with regard to whether this effect is retroactive or direct, and what effect this has on the rights that individuals acquired in the period when the text governing unconstitutionality takes effect.

accordingly, it is necessary to protect these rights from the impact of this ruling, in order to achieve the spread of legal security in society, through the contribution of the constitutional judiciary in finding a harmony between the effect of its ruling of unconstitutionality and those acquired rights.

the problem of this research is evident in the fact that the constitutional judiciary does not follow a certain direction to determine the effect of the ruling on the unconstitutionality of the legislative text and the impact of this on protecting the acquired rights, hence the importance of this research in its attempt to reveal the role of the constitutional judiciary in finding a balance between its provisions of unconstitutionality with the acquired rights.

to study a topic, we followed the analytical and comparative approach to comparing the systems of constitutional judiciary in the united states of America, Egypt, and Iraq.

and that through a plan based on two topics, we dealt in the first with the definition of acquired rights and the principle of non-retroactivity of laws, while the second topic was devoted to studying the relationship between the provisions of the constitutional judiciary and acquired rights.

in this study, it became clear to us that the constitutional judiciary in its rulings issued regarding the law challenging its constitutionality, especially its ruling of the unconstitutionality of the legislative text, in terms of taking a direct or retroactive effect of this ruling, did not take one direction to launch it, but rather hesitated between the two directions with compliance, in order to achieve a balance between the two considerations are essential, namely, constitutional legitimacy and legal security, in order to retain the acquired rights of people under the legislative text before its abolition, and this is what we noted in the comparative constitutional judiciary decisions under consideration of this study, and they are all from, America, Egypt, and Iraq.