The time for the positive procedural difference to be achieved in the case

Abstract

Despite the Iraqi legislator’s definition of the lawsuit as (request) and confusing the concept of lawsuit with the concept of judicial claim when it defined the lawsuit as (a person’s request for his right from another), however, it permitted the transfer of some lawsuits by succession in which the right holder submits a judicial claim, the legislator allowed the transfer of the right The lawsuit, and if it has not yet been proven that he has defined the concept of lawsuit, and the reason for this is that the lawsuit is prior in existence than the judicial one, and it is known that the civil judicial activity is an activity that is required and not automatic, then it is incumbent on the one who claims a right to go to the judiciary to request judicial protection, by filing a lawsuit and with what The case assumes that there are two opponents between whom the dispute arises, namely, the plaintiff and the defendant. The plaintiff is the person who goes to the court asking for a ruling in his favor at the expense of his opponent. Therefore, the plaintiff has a right. He is here considered the positive party to the suit. It expires with his death, but his heirs succeed him, and they have the right to continue the litigation procedures towards the debtor of their legator. And it comes to his successor only. As for the litigation related to the inheritance and the judiciary’s position on it, the Federal Court of Cassation in Iraq has approved contradictory principles and decisions regarding adding the lawsuit to the inheritance as a legal person independent of the heirs, or that the lawsuit is filed against the heirs in their personal capacity, considering that the heir owns the money that belongs to him of the estate upon death, and this in turn was reflected in the conflicting rulings of the courts in this regard And that the objection of others to the judgment differed in its treatment between the laws under study, and this in turn was reflected in the subject of the research. The subject of the study has stipulated, in addition to the above, that there be fraud and complicity in judicial representation or legal representation, and the burden of proving fraud in the case falls on the general successor.