وسائل القضاء في تطوير قواعد التنازع

Abstract EN

The legislator usually sets the rules of conflict, or as it is called the rules of attribution, to determine the law to be applied when a conflict occurs in a legal relationship that includes a foreign component, and it is noted that the current rules of conflict in Iraqi and comparative law are no longer sufficient to address the emerging contemporary problems regarding the conflict, and have resulted From this case, the legislator’s role has receded, and he gave more space to the judiciary’s role in developing those rules by filling in or amending the deficiency thereof, and even with the hypothesis that the text exists, in some cases, it must complete and reinforce this textual presence and begin to fill in the blanks, since the judge is not Just a path to adversarialism and its formal aspects, the judge’s job is superior and deeper than that, because it includes another important aspect in the judicial conflict, which is the search for the truth that will be enshrined in the ruling that will be issued by him, and Iraqi laws have allowed the judge a number of provisions that enable him and help him to realize the truth, and achieve Justice, as it does not depend on his personal knowledge of reality.

Paragraph (2) of Article (1) of the Iraqi Civil Code stipulated a gradual selection: “If there is no legislative text, it can be applied, the court ruled according to the custom, and if there is no According to the principles of Islamic Sharia, which are more appropriate to the provisions of this law without being bound by a certain doctrine, if it does not exist then it is in accordance with the rules of justice.

" As stated in paragraph (3) of the same article: “Courts are guided in all of this by the rulings approved by the judiciary and jurisprudence in Iraq and then in other countries whose laws converge with Iraqi laws.” This characterizes the positive role of the judge, and this role we can call it the role that complements the work The legislator, and accordingly, this modest study will be interested in studying the role of the judiciary in developing rules for conflict of laws in Iraqi and comparative law through two subjects.