تقييد سلطة القضاء بالدفع بالنظام العام في مسائل الأحوال الشخصية (دراسة مقارنة)

Restricting the power of the judiciary to uphold public order in matters of personal status (A comparative study)

Abstract

The topic of this dissertation included research on restricting the power of the judiciary to uphold public order in matters of personal status at the level of private international law through the comparative study of laws of the Latin and Anglo-Saxon direction.
The national legislature empowers its national courts (the judiciary) with judicial authority independent of the legislative and executive authorities in application of the principle of separation of powers advocated by the jurist (Montesquieu), as well as granting the judiciary a general jurisdiction that applies to all natural and moral persons, national and foreign, except for what is excluded by a special provision, and the national judiciary enjoys judicial authority at the internal and international levels, at the internal level international jurisdiction of national courts; because there is no international jurisdiction within the scope of international law Despite the fact that the national judiciary enjoys independence and general jurisdiction over all persons, the power of the judiciary may be restricted by resorting to an objective payment, namely, the payment of public order; because it is related to the fundamental principles, foundations and supreme values in the Society of the state, and the practical aspect refers to the power of the judiciary is usually restricted by the payment of public order in matters of personal status at the level of private international relations.
The defense of Public Order have adopted by most of the legislators of the laws of Latin and Anglo-American countries, and as a result of the difficulty of defining the concept of this defense because of its flexibility and ambiguity, they have not developed a definition of that defense, but came up with legal texts containing it, which has led to the subject of defining the defense of public order to jurisprudence and judicial jurisprudence, and the defense of public order in the scope of private international relations has become a means of excluding the law the foreigner who violates the principles The legal basis for the implementation of the said payment is represented by the absence of a minimum legal agreement between national law and foreign law defined by the national conflict rule, and the payment of Public Order has a set of characteristics, including: national property, flexibility and ambiguity.The jurisprudence of private international law disagreed about the legal nature of pushing

the public order to various opinions, where those opinions were highlighted and the prevailing opinion or theory was determined from them. of course, pushing the public order as a term differs from the legal terms prevailing in the scope of private international law, which required standing at those terms to determine their meaning and indicate similarities and differences between them, and the jurists of private international law have developed a set of criteria to determine the content of pushing the public order in the context of Laws, these norms are approaching a fundamental idea aimed at protecting the fundamental foundations and supreme interests of the judge’s state. It is noted that the enforcement of the public order claim entails normal effects, represented by the negative effect and the positive effect. the said payment also entails exceptional effects, embodied in the mitigating and reflective effect.
The laws of the Latin countries and the Anglo-American countries differed in regulating personal status issues at the level of private international relations, and the rules of those issues are considered public order; therefore, they have become practical applications to restrict the power of the judiciary to uphold public order, and this restriction is achieved through following the legal solutions developed by the national legislator to rule on a matter or through exceptions that respond to the principle that regulates the issue in dispute; since those solutions and exceptions are established by the national legislator, who should adhere to them out of respect for his legislator’s orders and intentions, and this is what is followed in the laws of countries with a Latin orientation and Anglo-American.