General system and its impact on the duration of the fall And litigation procedures in light of the Corona pandemic

Abstract

The curfew due to the outbreak of the new Corona virus has resulted in many questions, perhaps the most important of which is the subject of the periods of loss stipulated in the civil law as is the case for the period of the loss of right to claim the compensation, which was set by the Iraqi legislator for six months from the date of announcing the withdrawal. The same is the case with regard to the term of the contractor’s guarantee claim and the ten-year engineer towards  the employer in the contracting contract. These periods are related to public order, and are not included in the suspension of the period due to the ban, as it is a material hindrance, and this means the loss of its owner’s right due to the absence of a text that could help him under force majeure. The matter is further complicated by the absence of a text in the pleading law to aid the injured because of the loss of his right in the civil law. Therefore, it is not possible to measure cases or texts that apply to the curfew period because the texts of the procedures law do not accept analogy as they relate to the public order. Hence, the provisions of the pleading law are free from the regulation of the prohibition roaming as a physical obstacle or a force majeure that necessitates the suspension of the legal periods. Despite an attempt by the respected President of the Supreme Judicial Council, the statement issued in Issue 41 / Q / A on 6/4/2020 in which he considered the period of the curfew due to the outbreak of the Corona virus. This led to the suspension of work in all ministries and institutions as an interruption for pleading, as well as he did The State Council in the ministerial order issued by it in the number 751 dated 5/3/2020. However, cases of interruption of pleading have been defined by the Law of Procedures and it is not possible to expand or measure them. Article 84 specifies cases of discontinuation of pleading in the following cases : the death of one of the litigants or the loss of litigation capacity or the disappearance of the characteristic of the one who used to initiate the litigation on his behalf ...), which of these cases have been fulfilled! Based on what we have presented, we are trying in this research to shed light on two fundamental issues that clashed with our current reality due to the curfew. The first issue is related to the periods of forfeiture and how texts are processed to accommodate force majeure, whether with regard to the provisions of the civil law or with regard to the provisions of the pleading law. As for the second issue, it is represented in the litigation procedures, and we have focused on some forms of the effect of the curfew and its collision with texts related to the public order. We have focused on the issue of initiating the judicial process, whether this procedure is related to the initiation of the case, the proceeding of it, or the appeal of judgments and decisions. We’ll come out with some results and recommendations that may help the legislator and the judge to face such emergency situations.