الطبيعة القانونية لليمين الحاسمة : دراسة مقارنة

Abstract EN

It has set up laws successive elimination among the people , to save the rights and the administration of justice, and if the dispute to the judiciary was on the applicant to provide evidence that proves his claim , it could not do so does not cost a defendant , but was sworn in , and as stipulated in Article (7/1) of proof of Iraqi law No.

107 of 1979 by saying ( on the evidence of the claimed and Yemen of Langerhans) .

But the right to direct the crucial right is not limited to one without the other discount rivals , the Article (114/1) of the Iraqi law of evidence that ( for each of the two rivals with permission from the court to draw the crucial right to the other discount ) .

If not available for any of the two rivals evidence to prove , whether the opponent is from the suit does not have any evidence to prove Aaih or raised by the lawsuit does not have any evidence to prove him, he may ask the court to the crucial right guidance to his opponent , which is either swear and fall lawsuit , or attribute it to her face, or eliminated once to withdraw from.

The exception Iraqi law of evidence , like the Egyptian law of evidence , of any text shows the legal description of the critical right , and I've gone the direction of Fiqh that we should be for us to investigate the nature of the right of the text of the rules of civil law , has divided the owners of this trend on two opinions , he went first opinion the right to be critical of a contractual description , has divided supporters of this view , there are two views , it has been suggested that the crucial right is a kind of conciliation between the parties, as was also said that the crucial right close to the arbitration, While he went the other opinion that the crucial right of description is a contractual, has divided supporters of this view , there are two views , it has been suggested that the oath critical is the waiver of the right claimed , as was also said that oath policeman behaved, but this trend idiosyncratic did spared from criticism by both the two views, and on both of the two views.

The latest trend went from the Hadith that he should investigate the nature of the right side of jurisprudence based on the rules of justice because the right system requirements of justice to reduce the disadvantages of proof curricula, but justice itself also requires the inadmissibility of arbitrariness in directing the decisive oath, preferably Iraqi legislator text of this descriptions, including Mstonsa went to him the trend of jurisprudence , We propose to have the text of the article (114/1) as follows ( for each of the two rivals with permission from the court to draw the crucial right to the other opponent, according to the requirements of justice ) as well as to emphasize the inadmissibility of abuse in the oath should be in the text itself