الموازنة بين المنافع و الأضرار في قانون الاستملاك العراقي النافذ رقم (12)‎ لسنة 1981

الملخص EN

Achieving balance between public and private interests is considered as one of the most important aims of the administrative judiciary system when dealing with the contestations submitted by individuals against the administrative divisions that affect their interests.

One of the subjects of close relation to this is the expropriation of the public interest.

The reason behind this is that the Iraqi administrative judiciary system did not consider the balance between the benefits and the damages when dealing with the ownership decisions of private property.

The administrative judiciary system depends here on the legal pretext that achieving the public interest in the decisions made by the administration is something hypothetical, and that the property owners have no right to appeal against the administration judgment even if they prove that there is a damage against them, or that this damage is bigger than the public interest achieved.

However, this is totally different from what is adopted in France and Egypt where the judiciary system has the right to reject the ownership request if the damage is bigger than the benefit.

By this we wanted to shed light on the mechanism followed in this issue and reveal the different views used in dealing with the defect found in the Iraqi ownership law No.

12/1981.

It is an attempt to discover the best way follow in dealing with the problems of ownership, especially after issuing the fifth amendment of the State Consultive Council Law No.

17/2013.