The Legal Regulation of the Administrative Power of Attorney in Iraqi Law (A Comparative Study)

Abstract

The administrative power of attorney is one of the most important terms derived from the Civil law into the administrative law. In spite of its concept fixation in the private law as a consensual contract held once all parties agree by consensus. Whereas a lot of ambiguity, vagueness and overlapping accompany its implementation within the administrative law whether in terms of its legal consolidation or its legal nature. The system of the Administrative power of Attorney, within the scope of the private law, is mixed between the Attorney and the Prosecution whilst its effect is extended to reach the administrative law. Thus, its legal nature is also a vague and mixed between the administrative decision and the administrative contract. Additionally, as a functional position, the administrative attorney may be mixed with other functional conditions in terms of its nature, types, conditions and effects. Therefore, the subject matter of this study addresses the legal indigenization for the Administrative Attorney by means of searching the origin of the attorney idea within private law and differentiating it from the Prosecution. In addition, searching its concept in the administrative law through analyzing the legal texts therein, clarifying its features, conditions, factors and its legal nature as well. Consequently, examining its functional situations included in Administrative power of Attorney, and then comparing them with the functional situations that represent the sources of indirect jurisdiction of the administrative decision. Accordingly, examining the effects of the administrative attorney implicitly during this comparison as well as comparing these effects with the functional situations that may be suspected of in a number of aspects. In order to distinguish the administrative attorney as an important legal system by its own which is different from all other functional situations, whether they represent a source of competence or not. Based on the foregoing, it has been shown that the administrative power of Attorney as an original is derived from the Civil law. Yet, its implementation within administrative law makes it as another sample of the Attorney differing in a number of aspects from the Civil power of Attorney. As it resembles the legal prosecution when it is issued as an administrative decision, while it resembles the Civil Attorney when it is issued as an administrative contract. It also represents an exceptional functional situation used in the case of necessity. It can have an abstract functional situation if it is focused on non-leadership functions. It can also be a source of competence if it is focused on senior leadership positions. However, the Iraqi legislature does not pay an enough or regulatory attention, like the Jordanian or the Lebanese ones, to such an important functional situation. Furthermore, the administrative judiciary and jurisprudence contradict establishing legal principles to be helpful to the administration upon the realization of such legal system.