دور النيابة العامة في حماية العقار أثناء مسطرة التحفيظ العقاري

ذ
دور النيابة العامة في حماية العقار أثناء مسطرة التحفيظ العقاري
أيوب بومزاود

دور النيابة العامة في حماية العقار أثناء مسطرة التحفيظ العقاري 

دور النيابة العامة في حماية العقار : من إعداد ,أيوب بومزاود ,كاتب رأي ,مهتم بالشؤون القانونية وباحث بسلك القانون الإجرائي وطرق تنفيذ الأحكام.

تقديم :

  يقصد بنظام التحفيظ العقاري الصادر بموجب ظهير 12/08/1913، “مجموعة من أعمال تقنية وهندسية معلنة للعموم، تضبط هوية العقار، وتعطي للحقوق المقيدة برسمه القوة القانونية تجاه الكافة، بعد القيام بالإشهار لحالته المدنية بالجريدة الرسمية لتطهيره من كل ادعاء غير مسجل بالدفتر العقاري الخاص به”[1]

وهكذا يتضح أن مسطرة التحفيظ العقاري تمر بمراحل عدة، يتعين إتباعها للحؤول دون الوقوع فيما من شأنه تعطيلها، وبالتالي عرقلة عملية التحفيظ، ومن تم عدم تأسيس الرسم العقاري، الذي هو هدف مطلب التحفيظ[2] والأصل في مسطرة التحفيظ أنها مسطرة إدارية، يباشرها المحافظ العقاري، إنما قد تتخللها مسطرة قضائية في حالة التعرض على مطلب التحفيظ، أو في حالة صدور قرار من المحافظ العقاري يرفض مطلب التحفيظ. 

ولقد عالج القانون العقاري المغربي هذه المسطرة في الفصول من 9 إلى 61 من الباب الثاني، الذي قسمه إلى ست فروع، خصص الأول للمحافظة العقارية (أصبحت حاليا تسمى الوكالة الوطنية للمحافظة العقارية والمسح العقاري والخرائطية بموجب قانون 58.00) وتناول في الفروع الخمسة إتباعا، مطلب التحفيظ- الإعلانات والتحديد ووضع الخريطة، التعرضات، التحفيظ من طرف المحافظ وفي البث في التعرضات، ثم أخيرا الرسم العقاري. 

إقرأ أيضا :  اللجان الإدارية المتساوية الأعضاء

وارتباطا بموضوع بحثنا، فقد أوكل هذا القانون “للنيابة العامة ” صلاحيات ومهام في مجال مسطرة التحفيظ، ويشمل هذا التدخل إجراءات التبليغ، مباشرة التعرض العادي لفائدة الأشخاص المحجورين والغائبين والمفقودين وغير الحاضرين. 

ولعل تكريس هذا الدور للنيابة العامة من طرف المشرع المغربي مرده رغبته في حماية الحقوق من الضياع، وتفعيل المساطر، وتيسير إنجاز الإجراءات بعد أن كانت الغاية في عهد الحماية بسط المستعمر لنفوذه، من خلال وكيل مندوب الحكومة الذي كان سلطة تابعة له.[3]

ومن نافلة القول إن المغرب لم يعرف نظام النيابة العامة كمؤسسة قائمة الذات إلا عندما احتك بأوربا خلال مرحلة الحماية الفرنسية والإسبانية التي عايشها، وقد برزت معالمها بشكل واضح ضمن تشكيلة المحاكم الفرنسية والإسبانية، ولا سيما ما اصطلح على تسميته المحاكم العصرية.[4]

والواقع أن تدخل النيابة العامة في مسطرة التحفيظ يجد أساسه في تدخلها في الدعاوى المدنية، حيث تتدخل في هذه الأخيرة بوجه عام إما كطرف منضم أو كطرف رئيسي.[5]

بيد أن موضوع ” دور النيابة العامة في حماية العقار أثناء مسطرة التحفيظ” ، لم ينل ما يستحقه من الاهتمام، بحيث تمت معالجته بنوع من الاقتضاب، وبشكل لا يفي بالغرض المطلوب، وقد انعكس هذا الوضع على الواقع العملي إذ تباين عمل النيابات العامة لدى محاكم المملكة في هذا المجال، ولا سيما على مستوى مؤسسة التعرض الاستثنائي. 

إقرأ أيضا :  تحميل كتاب الشرح العملي لقانون المسطرة الجنائية PDF

لهذه الأسباب ولغيرها تنجلي للعيان أهمية الموضوع، إن على الصعيد النظري، أو التطبيقي، الأمر الذي شغفنا رغبة في محاولة البحث في موضوع “دور النيابة العامة في حماية العقار أثناء مسطرة التحفيظ العقاري، والذي ارتأينا تحديد إشكاليته المحورية في ” *مدى تدخل النيابة العامة في مسطرة التحفيظ، ومدى نجاعة هذا التدخل* 

هذا ما سوف نتناوله من خلال مبحثين اثنين:

المبحث الأول: دور النيابة العامة في مسطرة التحفيظ خلال المرحلة الإدارية. 

المبحث الثاني: دور النيابة العامة في مسطرة التحفيظ خلال المرحلة القضائية. 

تابع قراءة المقال في الصفحة التالية

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