السلطة التقديرية للقاضي في التأمين من الخطر الظني

الملخص EN

In the current research entitled "The judge's discretionary power in insurance against the technical risk " we discussed the way in which this power in fulfilled through its definition, its characteristics and the extent to which this power against risk is achieved in terms of the possibility element.

Then the researcher investigated the way in which the knowledge contexture in the descretionary power is achieved, and dealt with the judge's power in terms of the modification or the exemption of the arbitrary conditions and its criteria to reach the judge's power relevant to estimating the compensation in terms of the presumtive risk.

It was found that the risk is what does not exist except in the opinion of one or both parties is fulfilled or removed by reconsidering before concluding the contract.

The research used the camparison between some legislations including the Iraqi, Egyptian and the French legislations.

The problem of the research is that there is no legal rule that regulate the risk within the domain of the temporary risks and whether it is fulfilled by means of the descretionary power of the judge.

In the current research, it was concluded that the presumptive risk does exist in both of the parties' minds without being stipulated materially as it is (an risk) and the point in the insurance contract is fucused on the material criterion which manifests the existence or the ence of the presumptive risk when concluding the insurance contracts and the consequences incurred if one of the pillars necessary to conclude the contract does not exist.

After that the researcher came to the conclusion and the recommendations.