المسؤولية القانونية عن الإِخلال بالكفالة الجزائية (دراسة مقارنة)

Legal liability for breach of the penal guarantee (Comparative study )

The penal bail has occupied an important position and a prominent aspect of the majority of procedural laws, and we believe that it is one of the most important topics of these laws, Because it is related to the rights and freedoms of individuals, it is a means of preserving those rights and freedoms to the extent necessary, as it is considered one of the important guarantees for all parties to the criminal case, The Iraqi legislator dealt with it in the Code of Criminal Procedure No. (23) of 1971 amended and the systems of its provisions under Chapter Three of the Chapter Five in Articles (109-120) under the title (Arrest and Release of the Accused), and these articles showed their provisions, how to issue them, their controls and their scope, as well as their procedural system, how to cancel them, and the responsibility for breaching them, By setting its broad outlines, and it was marred by a lot of deficiency, ambiguity and ambiguity, the matter prompted us to address this issue according to the comparative analytical inductive approach of the legislative texts between the Iraqi Code of Criminal Procedure No. (23) for the year 1971 and the Egyptian Code of Criminal Procedure No. (150) for the year 1950 The Amendment and the Palestinian Criminal Procedures Law No. (3) of (2003) and the Jordanian Code of Criminal Procedure No. (9) of 1961,” the study focused on clarifying the concept of desisting, The penal instrument and its specificity, as well as a statement of the procedural system for it, and since each obligation is subject to a breach of it intentionally or unintentionally, the researcher did not neglect the study of the responsibility resulting from breaching the penal bail with an indication of the legal nature of that responsibility that was subjected to a great confusion by jurisprudence And the judiciary alike due to the lack of explicitness of the articles that organized its provisions, there are those who consider it a civil liability, and others consider it a penal responsibility, and others think that it is of a dual nature, and from our side we have come to the conclusion that this responsibility is almost outside the scope of civil responsibility, although the scope of work of this guarantee It is limited to the criminal courts, but its general provisions are found in the civil law, in addition to the fact that the place of the guarantor’s obligation in the criminal case is not different from the place of the guarantor’s commitment to the self, and in order to become familiar with all aspects of the subject of our study marked (legal responsibility for breaching the penal bail “comparative study”), In order to complete the basic aspects of this study and to create an integrated series of ideas without losing one of its links, we decided to divide the study according to a structure consisting of three chapters, i. As we shed light in the first chapter on the definition of the penal bail within two sections, and we devoted the second chapter to discussing the procedural system of the penal bail and guarantees of its implementation and how to terminate it as well in two sections, while in the third chapter we discussed the provisions of breaching the penal bail and the liability resulting from it and the problematic of its interpretation as well, and we ended up in two chapters, With a conclusion that included the most important results that we revealed and reached, and some recommendations that we hope will be of scientific benefit, God willing, and that they will find acceptance and interest from our Iraqi legislator… And God is the Guardian of success and success.