إساءة استعمال الحق الإجرائي : دراسة مقارنة في القانون المدني و الفقه الإسلامي

الملخص EN

The law gave the individual many rights, and one of the most important of these rights is the right to litigate, before the courts in case of infringement of his rights, by filing lawsuits so that he can obtain his right, and this can only be done by following a set of procedures, which are taken at the request of the person and decide who Before the judiciary, and these measures are taken starting from the lawsuit, whose acceptance of the substantive and formal conditions is required, but the lawsuit may not be accepted despite the availability of these conditions in the event that the court finds that its owner has been arbitrarily intended to abuse it, so the procedural right may not be used as a means or an excuse to obstruct Adjudication of the case, so as not to be a reason In the obstruction of justice, rather than described as a guarantee for the proper conduct of the proceedings, and facilitate litigation and justice.

Abuse in the use of the procedural right means deviating from the natural path and the legitimate aim of the interest established and protected by the law, with the aim of regulating, protecting rights and arranging responsibility in the event that it is authorized, by committing the abusive and abusive in his rights to compensate for the damages resulting from his abuse, as well as other penalties established in the Code of Procedure Therefore, it was imperative that procedural legislations keep pace with the objective systems, which they did not accompany, and that they were granted only a limited amount, which is not commensurate with the importance in protecting procedural rights, against the tampering of others and all that constitutes departure and violation, but this practical importance It does not fit with the organization regulating it in procedural legislation, and this is evident from the absence of provisions in the Iraqi legislation that indicate abuse of procedural rights and the penalty prescribed for them, but that the matter is limited to some sanctions that do not rise to the level to reduce abuse of the use of procedural rights.

The study came with the aim of drafting special texts for cases of abuse in the use of procedural rights, and the penalty stipulated for it, because the Iraqi pleadings law is free of its regulation, compared to the legislation of other countries.