مفهوم النظام العام و إشكالات طبيعة و نطاقه في تنظيم القانون المدني الأردني للتأمين

Abstract EN

The researcher tried to determine the concept of public order generally, and particularly, in the legal actions.

The result can be concluded to say that the concept could not be defined in a comprehensive and preventive definition, because concept has witnessed development in many aspects which differ in its implications from what was prevalent conventionally.

The research also concluded that the public order does not necessarily consist totally of jus cogens in itself neither in its form nor its substance, but it can be said that it is an approach by the legislator to nurture the public order.

That approach which may achieve its objectives, and may not, also it may relatively achieve that approach, which will have its impact - under this legal perspective- in the interpretation of the legal provisions, this would provide some consistency in the fundamentals beyond these legal texts.

When it comes to the scope of the public order that governs the regulation of the Civil Law of Insurance, the legislator stipulated that the requirement of lawfulness in the subject of the insurance contract should not violate the principles of Islamic Sharia.

This leads to problems related to legalizing the subject itself and prohibiting its insurance at the same time in a paradox that we did not find commendable Then it became clear that the protectionism is manifest in the regulation of the civil law of the insurance contract content, and that the problem comes from the sanction for violating the governing provisions of this type of the public order.

Absolute invalidity is incompatible with the protectionism of the jus cogens that regulate the content of the insurance contract since this will lead to invalidity of the contract itself.

The Jordanian legislator did not regulate the relative nullities as a provision in the Civil Law, and the sanction for violating the requirements of the public order and the texts governing it were limited to one type of invalidity, which is absolute nullity, which led the researcher to suggest adding a special provision addressing the sanction which can serve the protectionism aims of the text by limiting the invalidity of the illegal condition without affecting the rest of the contract, and replacing the invalid condition with the rule of text.