الطبيعة القانونية لليمين الحاسمة دراسة مقارنة

الملخص

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