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Volume : 45 Issue : 2 2021

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Author :Dr. Fares Menahi al-Mutairi *** Prof. Mashari Khalifa Al-Aifan
Discipline :Criminal and criminal procedures

The Doctrine of Plain View A comparative study of Kuwaiti and American law


In the light of the legislative regulation of the implementation of the search procedure, the legislator faced the expected and unexpected events and hypotheses, so the legislator addressed the subject of the accidental discovery of evidence relating to another unintended crime of conducting the search itself, and since the subject of accidental discovery is mixed with another principle known as comparative legislation - in the United States of America in particular - the principle of plain view doctrine- this study is important from the urgent need and necessity to distinguish between this principle and the idea of accidental discovery.
The methodology of the study was based on the idea of a comparative analytical approach, and the study was based on the idea of researching the legal texts and knowledge of the judicial directions of those texts to determine the scope of agreement and the difference between the two systems.
This study came to the following conclusions:
The legal system in the United States of America addressed the principle of abstract vision in the constitutional texts, while the regulation of this principle was mentioned in the provisions of the Kuwaiti Code of Procedure and Criminal Trials.

The principle of abstract vision is linked to the phenomenon of accidental discovery, as  the episodic discovery represents the broader and broader scope of the principle of abstract vision, as the by-detection may be done by the sense of the eye and other senses.
The principle of abstract vision is based on the supposed coincidence of the Kuwaiti legal system, while in the United States of America this principle does not require incidental.
The principle of abstract vision loses its luster in the event of a crime that is witnessed by the actions justified by this case, including search, which by its very nature includes the principle of naked vision.
The principle of naked vision is active in private dwellings and places other than public places by nature.
 

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Author :Dr. Meshal Jawhar Hayat *** Prof. Khaled Jassim Al Hendyani
Discipline :Civil

The role of good fath for the insured in the insurance contract


One of the important issues raised by the insurance contract, especially the commitment of the insured to provide the insurer with all the data related to the risk to be insured in good faith, so that the latter can estimate the value of the risks that he will face and determine the premium accordingly.
We conclude from this that the obligation of the insured to make statements is in two phases: the first in the contracting phase i.e. the time of concluding the contract regarding the primary data, and the second during the validity of the contract, which would lead to an increase or exacerbation of the risk.
If the insured breaches his obligation and intentionally lies or conceal, he is ill- intentioned and deserves a penalty for that.
The insurer is entitled to either terminate the contract or annul it. In view of the importance and necessity of these issues arising from a different penalty, whether in terms of breaching the obligation at the time of the conclusion or during the implementation of the contract, or whether the insured has good or bad intent, and what called me to research on this issue is the desire to differentiate between the good willed insured and the bad intentioned insured, this is due to what l sensed from the Kuwaiti legislator, who did not differentiate between the two.
 

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Author : Prof. Fayez Alkandari
Discipline :Civil

The Decline in the Philosophy of the Prohibition of Closed Foreclosure in Kuwaiti Law An Analytical Study in Comparison with the Provisions of Islamic Jurisprudence and Comparative Law


Laws and procedures in the State of Kuwait relating to foreclosure have been laid down in a manner that results in mortgagees lacking the ability to effectively redeem their rights against debtors. Upon failure by a debtor to fulfill a debt due, the law has nullified any agreement made between the mortgagee and debtor towards acquiring the mortgaged money or selling by way of special procedure. Such a nullity is made without regard to the will of the two parties under contract, nor the general principle of intention to create legal relations. This was not a deliberate direction per se, rather is attributed to considerations held by the Kuwaiti legislature that led to the creation of the philosophy of the prohibition of closed foreclosure.
Nonetheless, and pursuant to special legislations passed, the Kuwaiti legislature’s commitment to the philosophy was later (relatively) withdrawn from. These subsequent special legislations permitted agreements to acquire or sell the mortgaged money, in accordance with the mortgagee’s set procedures and without prejudicial effect made to the rights of the debtor and other creditors. This positive movement was taken in response to developments in the fields of investment and finance, and altogether in compliance with the provisions of Islamic law. This has, in turn, enhanced the State of Kuwait’s investment environment in relation to securities and promoted private and public sector co-operation in nationwide development projects. Therefore, the legislature has restructured the philosophy in line with the provisions of Islamic jurisprudence, in a manner that accurately reflects the commercial reality and needs of the country, and in accordance with approaches enacted by comparative legislations earlier.
In this article, through adopting a descriptive and analytical approach, the philosophy of the prohibition of closed foreclosure will be considered. This shall include a thorough analysis as to the source of the prohibition in reference to the Civil Law texts, Commercial Law texts and Islamic jurisprudence’s various schools of thought. Next, a comparative review of enacted legislations on this matter will be provided. Finally, a study of the legislative developments in the State of Kuwait in reconsidering the philosophy of the prohibition of closed foreclosure shall be viewed.
 

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Author :Dr. Mohammad Aljarallah *** Dr. Hasan Alrashid
Discipline :Private international law

Dual & Multi Nationality Under Kuwaiti Nationality Law A Critical Study of Kuwaiti Nationality Law No. 15 of 1959


The terms “loyalty” and “patriotism” are always used when the subject of Dual Nationality or Multiple Citizenship is raised in Kuwaiti society, especially when there is tension between Kuwait and the country or countries of which the dual national is also a citizen. In such instances dual nationality is used as an excuse to question the loyalty and patriotism of the dual national. It seems that Kuwaiti society does not understand the distinction between legal dual nationality and illegal dual nationality which leads to everyone who has double nationality being accused of infringing Kuwaiti law. Rather, it extends to affect some of the human rights to which the law provides special protection.
In recent years, although the issue of dual nationality has provoked an exaggerated social reaction against every Kuwaiti who is a dual national, this research has concluded that while dual nationality is viewed unfavourably   by international society and states around the world, the Kuwaiti legislator has not prohibited   the holding of dual nationality which means there are cases of dual nationality that are permitted by Kuwaiti law. Accordingly, these cases have been clarified in this research in order to help ease social tensions and increase understanding of the legal status of dual citizens under the Kuwaiti Nationality Law. Therefore, if the decision makers in Kuwait wish to forbid dual nationality, they have to amend the legislative provisions and fill the gaps that allow dual nationality rather than using dual nationality to challenge and question the patriotism of those who have a legal right to it.
 

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Author : Dr. Bashayer Salah Abdullah Alghanim
Discipline :Commerical

Cross-border Corruption and its Impact on Nullifying Foreign Investment Contracts and Arbitration Award based on Rules and Decisions of ICSID


Corruption is nowadays regarded as a major source of concern in trade. Foreign investment is a critical pillar of the state’s economy as means of capital flow and know-how transfer. Many conventions have recognized the need for states to provide all guarantees to investors in order to safeguard investments, in the fight against corruption and the commitment to integrity and transparency being among the most important.
Among the issues that have arisen on the international arbitration concern the State›s decision to confiscate the investment, necessitating the investor›s recourse to arbitration to obtain compensation. In such a case, the state, in order to discharge its obligation to compensate, files a petition to nullify the contract on the grounds that the investor obtained it through corruption, such as bribery. However, another type of corruption raised before arbitration is an incident of bribery of the arbitrator.
The most significant findings of this study include introducing several amendments to the ICSID Convention among which is the elimination of the partial nullity option of an award in the event that an arbitrator›s bribery is proven. However, if the arbitrator›s bribery is proven, an award should be declared null and void automatically and not subject to the panel›s discretion. Requiring the briber party to pay the costs of the new arbitration case and allowing the aggrieved party to seek compensation directly from the arbitrator and automatically removing his judicial immunity, include a provision authorizes the center to hold him disciplinarily accountable.

 

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Author :Dr. Faris Mohammed Al-Ajmi
Discipline :Civil

The financial intermediary commitment to Enlighten in the financial intermediation contracts In the Kuwait Stock Exchange


This research aims to figure out whether the Kuwaiti capital market systems and other governing legal systems are adequate to control the relationship between the financial intermediary, as being the professional party, and its clients, especially those who are ordinary. This is done through highlighting the duty of financial intermediary to enlighten the clients in the financial intermediation contracts.
The researchers use in this study the analytic approach by studying the relevant legal rules of laws, regulations and regulatory decisions and analyzing their provisions to identify whether they are adequate to protect the investing client against the financial intermediary.
This study is divided into three chapters; the first of which is dedicated to reveal the concept of the intermediary's commitment to enlighten and orient the client in the financial intermediation contract in the stock market. The Second chapter addresses the nature and scope of the commitment to enlighten in the intermediation contracts, while the last chapter is dedicated to study the consequences of the intermediary's failure to comply with its obligation to enlighten in the intermediation contracts.
The research findings have revealed that the Kuwaiti legislator has intervened to protect the capital market activity in general, and the financial intermediary's work in particular. The Kuwaiti legislator has imposed a series of special conditions to grant the financial intermediary the license to practice the activity. Also, the Kuwaiti Legislator has placed upon the financial intermediary a set of commitments, including those which have their reference in the regulatory relationship between the financial intermediary and capital market and those which have their basis in the contractual relationship with the client.
Further, the study showed that the financial intermediary may, during its work in the Stock Market, commit errors requiring it to undertake its responsibility which ranges from the civil, disciplinary and criminal responsibility.
Accordingly, the researcher recommended that the Kuwaiti legislator should intervene from many aspects, including the regulation of the financial intermediary's commitment to enlighten more comprehensively and concretely and the regulation of the contracts  between the financial intermediary and its clients, containing more detailed advice and recommendations made by the financial intermediary to its clients. Also, the definition of intermediation contracts in the stock market shall be included in the definitions stated in Article no. 1, Establishment of the Capital Markets Authority Law. Also, the researcher recommended that direct penalties for the financial intermediary's failure to perform its duty to orient the client shall be regulated. Due to the importance of the financial intermediary's criminal responsibility, the study has recommended the specialists of criminal law to investigate and examine capital market crimes in general, and financial intermediary's work-related crimes in particular.
Key Words:  Financial Intermediary- Investor- Enlighten- Capital Market- Commitment  
 

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Author : Colonel Dr. Khaled Zahir Al-Mutairi
Discipline :Criminal and criminal procedures

Parliamentary Immunity in Kuwaiti Law Its problems, limitations and criminal effects A comparative study



Research Objective: Establishing limits and controls for parliamentary immunity, both substantive and procedural.
Research Problem: The practical application of immunity in Kuwait indicates that it is viewed as an absolute right and the consequent fears for the entity of persons and bodies if a member misuses it.
Research Methodology: The study relied on the descriptive analytical approach to the criminal and constitutional legal texts governing the subject of the study, with a comparison with the different legal systems, especially the Egyptian and French systems.
Study Statements: The scope of the study extended to both sides of the immunity in two topics. The first was dedicated to substantive immunity and the second was for procedural immunity. Each of them dealt with several demands, including the statement of the nature, genesis and wisdom of each immunity, its scope, legal nature and effects. I added to the second topic a requirement to indicate the state of the removal of immunity.
Results: The study has reached to several results, the most important of which is that substantive immunity is a permanent immunity that is established for the member from the date he took the oath before the Council and protects him from criminal and civil liability while procedural immunity while procedural immunity is a temporary immunity that is established for the member from the date of his win in the elections and is limited to merely postponing the criminal procedures affecting the member’s person and the sanctity of his residence.
Recommendations: The research also ended with several recommendations, the most prominent of which is the need of the applicable text for substantive immunity in Kuwait to be modified, by not only being accountable for opinions without the need to mention the term “views”, with the necessity of identifying opinions with regard to parliamentary action, as well as excluding the crime of insult explicitly from lack of accountability.
As for procedural immunity, we recommended that it be included between the scheduling of sessions and the need of council’s decision to refuse permission for a review mechanism through one of the criminal court departments.


 

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Author : Dr. Mustafa Hussein Abdulbaqi
Discipline :Criminal and criminal procedures

The Crime of Perjury in the Jordanian Penal Code in force in the West Bank and the Palestinian Code of Criminal Procedure


A perjury is the act of a person who is brought before the court to testify as a witness in a civil or criminal case that intentionally decides what is contrary to the truth in order to mislead the judiciary. The crime of perjury is based on four pillars: the physical pillar (a testimony given to a judicial authority); the falsehood of the testimony; the damage or the possibility of it being realized; and the moral element (criminal intent).
The offense of perjury is a misdemeanour, the penalty of which in the Jordanian Penal Code is three months to three years’ imprisonment, but the penalty is aggravated in any of the following cases: the case of false testimony during the investigation or trial of a felony; the case of false testimony led to death or life imprisonment; and in the case of repetition.
Meanwhile, the mitigating circumstances are: if the testimony is given without the oath being sworn by the witness; if the perjury is presented to a person for prosecution or judgment in cases of exemption from punishment; and the state of commutation of the sentence from the instigator. On the other hand, the punishment is exempt in any of the following cases: if the truth is told, it will lead to gross harm to the witness or to one of his/her relatives; the person who does not have to perform the testimony; and if the witness retracted his words.
 

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Author :Abdullah Ahmed Qambar
Discipline :Administrative- Public international law

Study of certain legal problems in disciplinary trials. In light of Law No:(30) for the year 1964 on SAB establishment and other related laws


The referring to the disciplinary tribunal is considered one of the main legal methods that the legislator granted to the (State Audit Bureau) to have control over the financial improprieties committed by entities under its observation. The aim of these procedures is to first guarantee seriousness and neutrality by giving the jurisdiction to adjudicate these financial improprieties to a neutral entity. Second to follow the offenders of this type of criminal acts even if the offender resigned / retired before it has been discovered, as the disciplinary tribunal have the legitimacy to follow the offenders leaving their post.
In spite of the huge importance of (The created Referring to the Disciplinary Tribunal) it’s still inactive since the law no.30 1964 regarding the establishment of State Audit Bureau. As State Audit Bureau have not activated  the law until 2011, which witnessed a legal conflict between the Civil Services Commission and the State Audit Bureau about Chapter 4 of the law regarding the establishment of State Audit Bureau that contains the financial improprieties and the provisions regarding (The referring to the Disciplinary Tribunal). The legal conflict concentrated on whether Chapter 4 after-mentioned should be active or not, especially after the promulgation of law no.15 1979 regarding Civil Services Commission. This dispute lead to the delaying in establishing the disciplinary tribunal until the legislator interfered and issued law no.9 2015 adding a new part to article 36 of the decree no.15 1979 about the civil services, that decided that Chapter 4 of the law regarding the establishment of the State Audit Bureau, shall be maintained even after the establishment of the Civil Services law.
After the end of this dispute, in 2016 the Disciplinary Tribunal started its role in prosecution the people that committed financial improprieties, which lead to some legal issues regarding its role.
This study is aiming to discuss these legal issues and try to offer proper scientific solutions.  
 

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Author : Dr. Abdullah Nader Mohammed Al- Osaimi
Discipline :Administrative

The legal system of the mandatory grievance in Saudi Arabia



The mandatory grievance is considered an essentialprocedure for the acceptance of the administrative litigation. This is clearly stated in Article 8 of the (Law of Pleading before the Board of Grievances 2014) which linked it to rights claims and claims to cancel the final administrative decisions as separate proceedings, despite the fact that they are united in their core as tow legitimate grievances. It is clear that the mandatory grievance has been using the state and presidential grievance in different ways which add complications to the issue. Therefore, the current study attempts toidentify the legal system of the mandatory grievance in Saudi Arabia according to theLaw of Pleading before the Board of Grievances. This can be done by the determination of the nature, conditions and effects of the mandatory grievance in accordance with the cancelation of the administrative claim, without the claim of rights, which is in fact a claim of compensation. The present study suggests that the mandatory grievance related to rights can be only used as an optional grievance. Additionally, grievance of the state isimplemented by mandatory grievance for the cancelation of the final administrative decisions.
 

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Author : Dr. Sabir Mohammad Mahmoud Al Mezel
Discipline :Commerical

The effect of changing circumstances on the liability of the air carrier arising from the contract of carriage of passengers


This research investigates legal problems that caused by (COVID -19), particularly, studying the effect of legal consequences of the wide spread for the virus in unexpected and - without warning - on the emerging legal obligations on the passenger transport, mutual between two parties, according to that, as a result this caused almost complete stop on aerial navigation, due to, most government enact a regulations in the world wide domestic and international, therefore, this forced airline companies to cancel most of trips or sometimes reschedule the time table.
In the same vein, many questions were raised about how (COVID -19) consider as one of The Force Majeure, or one of the Contingency Conditions? Answering such questions considered significant for its importance in determining which part is responsible for the consequences of canceling the airline trips, after that, is it legal to make the passengers responsible for the suspending of their trips as a result of the spread of the (COVID -19), and forcing them to pay for price differences? And to what extent is it permissible to exempt the airline companies from their liability for compensating passengers for the results of the damage from cancelling their airline trips?
The researcher found that determining the legal nature of the (COVID -19) depends on the effect of the spread of this epidemic on the obligations of the airline companies, therefore, it can be considered as an emergency in some cases, or a force majeure in other cases.
 

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