الاستنباط القضائي في الدعوى المدنية (دراسة مقارنة بالقواعد الأصوليةطارق عبد الرزاق شهيد الحمامي

Judicial deduction in a civil lawsuit A coparative study

The legal rule is analyzed into two elements: (the imposition) and (the ruling), the first is the incident on which the law has an effect. The second is the legal effect that the law arranges on the imposition.Therefor the imposition represents the incidents of dispute, while the ruling settle the dispute.
The judge cannot settle the dispute until he stands to prove the claim or deny it through legal evidence, but there is not always direct evidence available in the case or it may be available but not complete, then the positive role of the judge comes through what he does by deductive work in arriving at the indications Evidence to prove the incident or complete the missing evidence.
This deduction was mentioned by the Iraqi legislator in Article 102 of the Evidence Law when defining the judicial presumption that it is (deduction of the judge an inconsistent matter from a proved matter he has in the pending lawsuit) and the Egyptian legislator mentioned it in Article 100 of the Evidence Law, stipulating that he (left to the judge’s discretion to devise all A presumption that was not decided by the law) and the French legislator addressed this issue in Article 1349 of the Civil Code and stipulated that (the presumptions are results drawn by the rule of law or the judge’s assessment of a known fact to infer an unknown fact) and in another translation of this text as (a result that the governor or judge deduces from an known incident to measure at here an unknown state.)
Hence the problem come, What is meant by this deduction? Does it mean its linguistic or idiomatic meaning, as in modern logic? In other words, adopting the deductive approach in research and inferring the unknown, which corresponds to the inductive approach. All this at the stage of considering the incidents.
And if the judge finishes the advanced stage, and after giving the legal
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description of the incident in question and diagnosing the legal rule applicable to it, he returns again to practice another deduction work, which is the deduction of the judicial ruling that settles the case, how is the latter and what are its methods and what is the picture of reasoning here, and what is the role of the rules of Fundamentalism and the logic of understanding the texts in this work and what are the sources of deduction considered in the case if the judge encounters a legislative vacuum and when does the judge’s discretionary role come in setting the legal rule and deduction from them?

Through the foregoing, we perceive the problem of research as that ambiguity surrounding the process of judicial inference and its lack of interpretation as a legal and judicial phenomenon.

The imposition of this problem has made us adapt the rationale and fundamentalist investigations by the judge when he examines the civil lawsuit.
On the basis of the advanced legal rule analysis, we divided this thesis into two chapters preceded by an introductory chapter in which we addressed the essence of judicial deduction and its distinction from concepts and terms that interfere with it. As for the first chapter, we held for judicial deduction in the realm of facts and made it into two chapters that dealt with in the first chapter the requirements of judicial deduction, and in the second, methods of judicial deduction, but the second chapter devoted it to judicial deduction in the scope of rulings and divided it into two chapters, we dealt with the first of the judicial deduction from the legislative text, and we dealt with the second in the judicial deduction in the case of the legislative vacuum and then we concluded the study with our findings and proposals