Every legal organization requires a specific system of proof that aligns with its nature, and no legal system can function without proof, as individuals and society cannot claim their rights otherwise. The importance and necessity of proof are best illustrated by the explanatory memorandum of the Egyptian draft law on evidence, which states that the rules of civil evidence are of special importance because a right—the subject of litigation—is stripped of all value if there is no evidence of the incident on which it is based. Evidence is the essence of its existence and the key to its benefit, so much so that it is said a right without proof is equal to nothingness when disputed.

Despite numerous studies in the field of expertise, writing about it remains an urgent matter because its widespread practical application on a daily basis necessitates continuous, precise, and careful monitoring of this subject. Every day brings a new chapter in this important series called expertise. The problems posed by expertise are numerous and significant, especially in the judicial field. When judges, in the course of a lawsuit, face technical issues they cannot solve themselves due to a lack of necessary technical knowledge—which they are not obliged to possess—their task is confined to applying the law, a purely judicial function. The judge analyzes and studies the facts and then applies the law to them.

For the law to be applied correctly, the facts must be analyzed accurately and correctly. Here, the judge may encounter immense difficulties. Examples include questions about the nature and composition of a substance, the duration of incapacity and whether it is constant or variable, and the operating condition of a mechanical machine. The judge usually cannot answer such questions and must resort to an expert, whether a doctor, chemist, or accountant, to provide the needed information.

With the advancement of technology, increasing scientific knowledge, and continuous verification in transactions and knowledge that fall outside the judge's scope of expertise, the reliance on experts has increased dramatically, becoming almost automatic at various levels of trial courts. This need prompted the French legislator to issue a decree (Decret) No. 73-1122 on 17/12/1973, increasing the instances of resorting to a technician in the field of expertise. Previously, French law knew only one case for resorting to a technician in expertise, but today the French legislator has enumerated three cases: for a simple inspection, to provide consultation, or to practice expertise in its full sense, as was previously the case.

Undoubtedly, a judge can request an inspection from a non-technical person or an experienced bailiff to prepare a statement of facts at the request of the parties to the dispute. However, a technician will see things better and faster to resolve the conflict. The Jordanian legislator addressed the procedures for expertise in the Civil Procedure Law No. 24 of 1988, in Articles 82-99. Despite the importance of expertise in proof, the Jordanian Evidence Law No. 20 of 1952, as amended by Provisional Law No. 37 of 2001, neglected to regulate it and state its provisions.

However, recently, under the amended Civil Procedure Law No. 14 of 2001, also amended by Law No. 26 of 2002, new provisions have been added that regulate the subject of expertise as a means of proof. Perhaps the most important of these new provisions are the amendments to the first paragraph of Article 83 of the Civil Procedure Law, amended by Law No. 26 of 2002. The first paragraph of Article 83 now states: '(1. The court may, at any stage of the trial, decide to conduct an inspection and expertise by one or more experts on any movable or immovable property or any matter it deems necessary for expertise. If the parties agree on the choice of the expert or experts, the court shall approve it; otherwise, the inspection and expertise shall be conducted by the rostered experts. The court must state in its decision the reasons for this measure and its purpose, define the expert's mission, order the deposit of the expertise expenses, and specify the party responsible for them).'

Also, the addition of the fifth paragraph of the same article under the amended Law No. 26 of 2002, which states: '(5. The affairs of expertise and experts, and the procedures for the experts' oath-taking and their designation in special schedules, and all necessary provisions to enable them to perform their duties, shall be regulated by a special regulation issued for this purpose).' Based on this paragraph, the Regulation of Expertise before Regular Courts No. 78 of 2001 was issued, amended by Regulation No. 51 of 2002. Through these successive amendments, new and important provisions have emerged that require research and clarification.

It is true that expertise is more widespread than inspection and consultation, as these two methods are still of limited use. However, at least theoretically, expertise is no longer the only method used in judicial proceedings. Yet, practical reality shows that judges rarely resort to them despite their speed and low cost.

Researching the topic of expertise is of great legal importance because it plays a significant role in proof, no less important than its role in assisting the judge. It has a crucial role in many lawsuits where expertise is a primary and essential piece of evidence on which the resolution of the dispute and the judgment in the case depend. This is because judges may be presented with cases involving facts that are beyond their knowledge and perception, and the judgment depends on them. Herein lies the true importance of resorting to expertise to interpret and analyze these facts scientifically and accurately, presented to the judge in a detailed report, based on which the judge decides the case.

In this study, we will address most jurisprudential opinions on inspection and expertise and recent judicial precedents—especially those of the Jordanian Court of Cassation, the Egyptian Court of Cassation, and the French Court of Cassation—and explain the provisions and rules these courts have established regarding inspection and expertise. We will also evaluate the opinions of jurisprudence and judicial precedents to reach the desired results of this study. Every researcher must follow a methodology in their study to reach their intended results through scientific and logical methods that bring those results closer to truth and reality. Research methodologies differ from one researcher to another depending on the subject and nature of the research.

Legal studies are dominated by the analytical method, which I will use to explain the rules and provisions concerning inspection and expertise contained in these texts by extracting legal rules and comparing them with the texts of other legislations. Regarding this analytical method, I used it to analyze the Jordanian Civil Procedure Law No. (21) of 1988 and its amendments by Law No. 14 of 2001 and Law No. 26 of 2002. The Regulation of Expertise before Regular Courts No. 78 of 2001, amended by Regulation No. 51 of 2002, was also issued. I have analyzed the texts concerning inspection and expertise, despite their scarcity and lack of clarity, from all legal aspects of inspection and expertise, comparing them with the Egyptian legislation that addressed inspection in Articles (131-134) of the Egyptian Evidence Law No. (25) of 1968. I have benefited greatly from these texts and the provisions contained therein, which has been very useful for this study.

We have also dealt with the legal texts in the Egyptian Evidence Law No. (25) of 1968 from Article (135-162), which regulate the subject of expertise through legislative texts and related provisions, through sound legal analysis. I have used major and valuable legal works by Egyptian jurists interested in the subject of expertise and its provisions, which address this topic from all angles, due to the lack of jurisprudential works on this subject in Jordan, which are limited to merely stating the legal texts related to inspection and expertise.

I have also used the comparative method in this study, reviewing the legislations of Egypt, Jordan, and France, highlighting the most important aspects and provisions that address this subject in a way that aims to achieve the legal integration of this study.

This study contains three chapters:

• Preliminary Chapter: In this chapter, I will discuss the definition of proof and the systems that govern it, namely the free proof system, the restricted proof system, and the mixed proof system in the first section. In the second section, I will discuss the legal fact subject to proof and the burden of proof.
• Chapter One: I have dedicated this chapter to the study of inspection. In the first section, I will address the nature of inspection in terms of its definition, rationale, how expertise is conducted with inspection, and the distinction between them. In the second section on inspection, I will cover the procedures of inspection, including its scope, request, the court's authority in conducting it, the probative value of inspection, and the extent to which the court is bound by the result of the inspection. In the third section, I will discuss inspection in Jordanian legislation and judiciary in terms of its nature, procedures, probative value, and the trends of Jordanian legislation and judiciary in regulating inspection.
• Chapter Two: This chapter is dedicated to the study of expertise, by explaining its nature in terms of definition, types, legal nature, legal importance, and its distinction from other means of proof in the first section. In the second section on expertise, I will cover the procedures of expertise, including the request for expertise, the appointment and recusal of experts, and the expert's conduct of the expertise. In the third section, I will address the probative value of the expert's report in proof, concerning the expert's report, its effects, and its authority. In the fourth section, I will discuss the expert's responsibility and the difficulties of expertise, including the responsibilities of experts and the challenges posed by expertise. The fifth and final section is devoted to explaining the new provisions that have been introduced to the subject of expertise under the recent amendments to the Jordanian Civil Procedure Law and the Regulation of Expertise before Regular Courts in Jordan.

I will conclude this study with the findings I have reached, presenting recommendations and proposals that contribute to reforming the legal regulation of inspection and expertise.

ISBN: 9789957160000
Weight: 0.700 kg
Dimensions: 17×24 cm
Paper: White
Pages: 304
Year of Publication: 2011
Binding: Hardcover