فكرة التعويض العقابي ومواطن الأخذ بها في القانون المقارن "دراسة في ضوء القانون الإنكليزي والعراقي والفرنسي "

الملخص

The Idea of Punitive Damages and its adoption in

Comparative Law "Comparative Study”

The abstract:

     Punitive damages are an extra damages granted by the civil judge to the injured party in certain , exceptional cases particularly if the fault committed by the wrongdoer so grave or serious owing to its nature or the surrounding circumstances in order to deter and punish the wrongdoer and deter the others who would commit the same fault. Though the idea of punitive damages is one of niceties of English legal system, yet its early prototype has deep roots in the history of legal systems, Code of Hamourabi is a case in point in this respect where this idea is very manifest to an extent that is the general maxim governing the compensation system.

    The idea of the punitive damages is so controversial , opposed by some judges and jurists even within the realm of English legal system, paradoxically , it  has been embraced by some prominent figures in German and French legal systems , emphasizing its importance either in combating certain kinds of faults namely "the profitable" one where the aim of the wrongdoer not simply to inflict damage on the injured party but to exploit or harvest the fruits of another person property as well as replant the seeds of moralization in civil liability system since this system begins to loss some of its moral premises after the spreading of presumed fault system or strict civil liability system.

       The research had been divided into three chapters, in the first chapter the researcher has dealt with the idea of punitive damages and its distinguishing characteristics and its role within the realm of legal liability , whereas the second chapter specified to technical demarcation of cases be worthy of punitive damages  . the third chapter has dealt with the problems of idea of punitive damages which has been dived into two subchapters the first specified for the bases for calculation of punitive damages and the enforceability of foreign judgments containing punitive damages.

     Finally, the researcher has summed up his research by many recommendations and proposal for draft modifying law; hoping that Iraqi legislative organs and judiciary system to adopt them.