مجلة الاطروحة العلمية المحكمة الاطروحه للنشر العلمي
اعادة المحاكمة كضمان قانوني في الدعوى المدنية
م.م كوثرعطيه لفلوف
كلية القانون /جامعة ساوة الأهلية /المثنى / العراق
Abstract
Retrial constitutes one of the most significant extraordinary remedies established by the Iraqi Civil Procedure Code No. 83 of 1969, serving as an exceptional mechanism to safeguard rights and ensure justice, even in judgments that have attained finality. It functions as a legal guarantee for the convicted party against judicial errors arising from fraud, forgery, perjury, or the concealment of decisive documents in the case. Thus, retrial stands as an exception to the principle of the finality of judgments, premised on the notion that judicial truth may not always coincide with factual truth, thereby necessitating the opportunity for the aggrieved party to re-litigate under strictly defined conditions.
This study examines the legal framework of retrial in Iraqi law, beginning with its definition and legal foundations, followed by an analysis of the judgments that are subject—or not subject—to this remedy, and distinguishing it from other ordinary and extraordinary appeals. It further explores in detail the legislatively prescribed grounds for retrial, namely fraud, forgery, perjury, and the discovery of decisive documents wrongfully withheld by the opposing party. The study underscores that all these grounds are connected to evidentiary issues and means of proof, rather than to judicial errors in assessing facts or applying the law.
The findings reveal that retrial represents a fundamental legal safeguard in civil proceedings, as it grants the losing party an exceptional opportunity to correct serious flaws in judgments that jeopardize justice, while preserving the stability of judgments except in narrowly circumscribed cases. The study recommends renaming this remedy as “review of judgment” for greater terminological accuracy, expanding its scope to include all final judgments where substantive grounds exist, clarifying evidentiary requirements for establishing forgery and perjury, and introducing financial guarantees to balance the interests of litigants and curb potential abuse.
By recognizing retrial as a legal guarantee in civil litigation, the Iraqi legal system affirms its commitment to judicial fairness and aligns itself with comparative legal systems, thereby reinforcing litigants’ trust in the judiciary and upholding the rule of law.
Keywords: retrial, extraordinary remedies, civil litigation, fraud, forgery, perjury, procedural safeguards, judicial fairness.