الآثار القانونية للنقض الجزئي للقرار القضائي

الملخص EN

The appeal against judicial decision through cassation embraces the elements of personal right, however, it is not a bilateral relationship.

It is a relationship where appellant, appellee, trial court and appeal court subject to the rule of law.

Consequently, the superior court issue its judgment by reversing the challenged judgment totally or partially.

Partial reverse of judicial decisions is deemed a result of cassation court decision which aims to reverse a part or a clause of divisible judgment decision if it, partial reverse, does not affect the other parts and clauses of the judgment decision.

Iraqi Civil Procedure Act does not refer to partial cassation as a result to appeal through cassation of judgment decision.

In contrast, the rest of comparative legislations point out this result of cassation.

Nonetheless, partial reveres can be adopted under Iraqi jurisdiction according to the juristic opinions and precedents.

The reference to partial reveres in the appeal through correction of cassation decision is one of the exceptional issues stipulated by the Iraqi legislature.

Partial cassation decision, which comes as a result to an appeal against correction of cassation decision, differentiates from partial cassation because the correction depends on approved judicial decisions.

This means that Iraqi Civil Procedure Act has a legislative shortage.

However, legislative lack does not prevent judiciary from depending on partial reverse.

It is clear that court of cassation adopts partial cassation in its decisions.

Inclusion several parts or clauses in a judicial decision does not make it one sentence whereas overturning one part leads to reverse the others.

Partial cassation of judgment decision is extension to the theory of “procedural derogation” if a procedural act is invalid in one part, only that part will be null and void derogation is found just in divisible compound procedural acts, rather than the indivisible simple ones.

For the last, invalidating one part in a procedural act leads to invalidating the entire act.

Contrast to the Iraqi Civil procedure Act and French Code of civil procedure, the Egyptian Civil procedure code espouses the theory of “procedural derogation” in Article 24.

Furthermore, Iraqi Civil Procedure Act.

Does not indicate connection situation.

Instead, it refers to non- Segmentation condition.

In their turn, Egyptian and French legislations indicate that the connection is a tie between two cases which justifies hearing the cases together.

However, they do not define that relationship or clarify its nature.

Partial association between two cases (even in one part) is enough sufficient to be investigated and sentenced in one court.

The researcher supports jurisprudence in considering non-segmentation of judicial decision as a totally independent concept from connection situation.

The reason behind that is their terminology.

The connection situation means occurrence of two separate and different things or matters joined by a relationship.

The term of non-segmentation means occurrence of a divisible thing, matter, or position.

The Iraqi legislature does not clarify whether or not that connection situation is rule of ordre public.

However, juristic opinions consider it as a part of ordre public because of its impact on validity of judicial decision as in the situation of the unification through connection situation.

(the unification of two cases).

Finally, the researcher finds that the results of the most partial reverse reasons go back to a shortage or failure in reasoning or lack of wrong reasoning.

That is due to court of cassation which compares the reasoning of trial court with the applicable statute.

The sentence is reversed if there is a defect in the reasoning.

Reasoning is like an optical microscope through which court of cassation can discover errors and omission of trial court, especially, if a judge of trial court tries to hide some personal information on which he builds his judgment.

This points out to the importance of reasoning for court of appeal in general, and for the reasons and sides of appeal through cassation in particular.

They can know the method and style of a judge in dealing with the submitted evidence and facts.