سلطة تقدير القاضي للواقع المجرد في الدعوى المدنية : دراسة مقارنة

Abstract EN

Legal rules had been enacted to regulate social life in its divers styles and forms .

It aim to identify the rules of social behavior , which should be followed by individuals , and to specify the consequence resulting from violating it as well.

Mostly , the respect it persons is due to matching between their behavior and legal rules , although the basic problem in the debut about the concept of law , lies in the relationship between law and moralities , where this problem impacted by tow opposite basic attitudes namely : the doctrine of positive law , and the doctrine of natural law .

Legal rules are characterized by being a dual synthesis , where it provides a specified commitments , which imposed on those whom it addresses a specified commitments , which imposed on those whom it addresses , to have some approach on the one hand , and on the other hand it authorizes the other whom appointed to have the power or the legal authority to issue the decisions which rule on jurisdictional disputes .

These decisions in turn from abiding rules for people whom the decisions are issued against them , based on the legal consequential impact of these rules.

Therefore , the issuance of a general legal rules by the legislator obliges judges and litigants all .

But it authorizes judge to issue judgment and determine the legal rules that adjudge the dispute by a special decision which should be issued in the presence of litigants .

So the decision which was issued in accordance which this authorization and in conformity with the procedure which should be executed , had been derived originally from the text of law and its general rules .

Therefore , law cannot be reduced by purely logical process , where the law determines the normative general frame work , leaving to the judge the probabilities which subjected to test and analysis in order to reach dispute solution , which based on the matters that imposed by the raised tracts .

So it is up to the judge of trial to choose between these probabilities depending on the authority granted to him by the legislator .

Legal rules are divided into two types of different natures namely : general rules and special rules which ( from a judgment for a special specified case) .

The special rules are matching with the essential legal rules which aim to achieve the commitment of doing a work or the abstention of doing this work , in addition to the general rules which do not aim to organize a special case , but aiming to present a criterion allows to recognize precisely the general basis ,which impose itself within a society .

These rules specify the identity of formal and basic law sources , beside authorizing the judge to trace violations which impinge upon the general rules and to enable him for disposing the dispute in its precise scope .

Judges who authorized to apply law upon jurisdiction dispute , which submitted to according to rules of jurisdiction deal with two types of law suits , the first is typical , which comply clearly with cases that explicitly targeted by law where it represents most of law suits ,the first is typical , which comply clearly with cases that explicitly targeted by law where it represents most of law suits which could be judged relatively easily , since what the juggle rules .

The secondly is an exceptional type , which is hither organized by law directly , nor has a similar one in the practical aspect .So the judge has no ability to dispose the dispute directly .

That is caused by many reasons , may be related to identification of legal text which has the most conformity with dispute specifics , or it related to misunderstanding of what meant by the legal text because of language ambiguity which the text had been it signify , except for some technical phrases that form special identifying material for legal text .

This leads necessarily to say that the identified and special understanding of phrases which stated in legal text related to the use of these legal rules in drafting the special contracts and agreements correctly .

But it is not necessarily so , where these contracts and agreements may be inaccurate and incomplete , The judge in turn , cannot get solution for these cases by law , because what dictates to reach solution is to go beyond the accepted meaning to interpret phrases of legal text .

But the estimation power of the judge is what establishes the binding force for his decision , according to the estimated result which he reach it , that reduces legal rules into reality which located in lawsuit , beside the compact of this result with principle that : the judiciary dose not linked with legal rules , then , lack of legal rules does not exempt the judge from adjudging in lawsuits and requests .