Private Law
Ehsan Bahramy; Mostafa Elsan
Abstract
In order to defend a frivolous claim, the defendant may suffer from numerous fees such as litigation and expertise costs, attorney's fees, etc. One of the important questions is whether the demand for such fees caused by a frivolous claim is subject to proving the plaintiff's negligence or bad faith. ...
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In order to defend a frivolous claim, the defendant may suffer from numerous fees such as litigation and expertise costs, attorney's fees, etc. One of the important questions is whether the demand for such fees caused by a frivolous claim is subject to proving the plaintiff's negligence or bad faith. In response, the Iranian Law situation is not very clear; Because according to Article 109 of the Civil Procedure Code, the security for costs order for frivolous claims, which is considered one of the ways to fee-shifting, is not subject to proving the plaintiff's negligence or bad faith. On the other hand, according to Article 515 of this Code, demanding fees from the plaintiff is generally subject to proving his bad faith. Along with the study of American Federal Law, resolving this ambiguity and conflict is the subject of this article. In this article, after explaining the concept of a frivolous claim, it is concluded that identifying the plaintiff's negligence (not his bad faith) is necessary for demanding fees caused by frivolous claims. In order to identify the plaintiff's negligence, some points must be considered: firstly, the negligence is identified according to the circumstances of the lawsuit. Secondly, the negligence of the pro se litigant or unrepresented party is measured by comparing him with the reasonable one and the negligence of the lawyer is measured by comparing him with the reasonable lawyer. Thirdly, as a rule, the pro se litigant or unrepresented party may not be considered negligent for filing a claim without a legal basis.
Private Law
Mohammad Sadegh Mahdavi Rad; Mahmoud Habibi; Ismail shahsavandi; Alireza MASHHADIZADEH
Abstract
Proceedings of retrial in criminal and civil cases are different, it means that in criminal matters only the convicted person, the prosecutor executing the sentence and the Attorney General of the country have the right to request the retrial proceedings in civil matters according to articles 426 to ...
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Proceedings of retrial in criminal and civil cases are different, it means that in criminal matters only the convicted person, the prosecutor executing the sentence and the Attorney General of the country have the right to request the retrial proceedings in civil matters according to articles 426 to 441 of the Iranian Civil Procedure Law; First of all, the reasons for requesting re-trail are the reasons listed in Article 426. Secondly, according to Article 441, no one except the plantiffe and their successor can request a retrial. Thirdly, the request is limited by the deadline. Fourthly, unlike in criminal matters where the request is submitted to the court and the district court prescribes a retrial, in legal matters the retrial petition is submitted to the court that issued the final judgment and the court that issues an acceptance order and retail the proceedings. The legislator of Egypt has also recognized the retrial of proceedings in criminal matters in articles 441 to 457 of the Egyptian Criminal Procedure Law and considers the purpose of the retrial of proceedings in criminal matters to prevent the judge or the court from causing losses to the accused due to a mistake in issuing a sentence. Therefore, the request for retrial by the public prosecutor's office is requested by the convicted person and in the case of the death of the convicted person by the wife or one of the relatives of the deceased, the retrial in civil matters is considered by the Egyptian legislator from articles 241 to 247 of the civil procedure law, which is often with the prescribed directions
Private Law
Younes Yousefi Gorgi; mohammad bagher ghorbanvand; masuod alborzi verki; alireaza navariyan
Abstract
Despite the significance of the possibility of producing new evidence in the phase of appeal in a proceeding, there is no explicit rule in this regard. This issue is controversial among the scholars in the field of procedural law and the judges in connection with the appellate stage of a proceeding. ...
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Despite the significance of the possibility of producing new evidence in the phase of appeal in a proceeding, there is no explicit rule in this regard. This issue is controversial among the scholars in the field of procedural law and the judges in connection with the appellate stage of a proceeding. Most of the courts have induced from the laws and regulations which governs this issue, the fact that a judge can make reference to the new evidence in the appellate, such as new investigation, inspection of scene, or new deeds, even if those evidences have been out of the point or have been deviated or have not been considered by the court of first instance due to any reason. Such approach, from the view point of precedent in the field of appeal, has been provoked by the Iranian Law of Civil Procedure (1939) and Article 563 of French new Civil Procedure Code and it can be said that the judicial precedents in this regard have been established on the basis of the same laws. The only limitation thereof is reference to the new evidence for proving those claims which had been under consideration of the first instance court. However, such precedent is not compatible with jurisprudential (feghhi) history of appeal and the very texts of some laws. Thus the conservative approach of the courts in this regard should be taken into account In the process of the future development of legislation. By following such an approach the legislator can be pushed to revert to the previous laws and regulations concerning the appeal, taking into account some adjustments thereto for confronting the prolongation of adjudications.
Private Law
Rasoul Ahmadi Far
Abstract
Ability to execute a court judgment is one of the most neglected criteria in Iranian legal sources as a necessary condition for issuing a judgment. The purpose of this study is to analyze the importance of this criterion.In this research, the court judgment has been defined and identified and the criteria ...
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Ability to execute a court judgment is one of the most neglected criteria in Iranian legal sources as a necessary condition for issuing a judgment. The purpose of this study is to analyze the importance of this criterion.In this research, the court judgment has been defined and identified and the criteria for its issuance and implementation have been reviewed.Then, the criterion of enforceability was considered as one of the necessary criteria for issuing a court judgment. According to the results of this research, the ability to execute is one of the necessary conditions for issuing a judgment, and the court must pay attention to the fact that the issued judgment can be executed according to the legal conditions at the time of issuance.Refuse to issue such a judgment in an audio where it is not possible to execute it.Key words: Ineffective sentence, court order, sentence enforcement, enforceability, sentence, court order, vote, court ruling
Private Law
seyede motahare hosseyni; Leila sadat Asadi; seyed mohsen fattahi
Abstract
There are three approaches regarding the divorce types on behalf of the wife as husband's advocacy (derived from Article26 of the Family Protection Law 2013): "uncontested divorce theory" where a certificate of compromise impossibility is issued, "contested divorce theory" at the wife's request; where ...
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There are three approaches regarding the divorce types on behalf of the wife as husband's advocacy (derived from Article26 of the Family Protection Law 2013): "uncontested divorce theory" where a certificate of compromise impossibility is issued, "contested divorce theory" at the wife's request; where the divorce decree is issued and "the two-step theory of such divorce process". The different effects resulting from the acceptance of each of these approaches on the rights of each couples in the judicial process and implementing stage of divorce, confirm the necessity of investigating the issue.This descriptive-analytical study was conducted by examining the advisory theories of the Judiciary Law Department and using the votes issued by the family courts and issues discussed in the judicial sessions; to answer this main question: "what is the divorce type on behalf of the wife as husband's advocacy and its effects". The results revealed that, Article26 of the aforementioned law, in terms of determining the divorce type (on husband's behalf) is ambiguous and therefore suggests a revised text. In addition it considers the best interpretation of the above article in being two-stage of wife divorce on husband's behalf: firstly, verification lawsuit for the power of attorney for the wife, and then a request to issue a certificate of compromise impossibility in the uncontested divorce form. This theory, which is more consistent with the provisions of Article 26, solves the problems faced by the other two theories, especially in terms of closed matters' validity in case of not executing the divorce decree within the deadline stipulated in Article34 of the Family Protection Law.
Private Law
Reza Shokoohizadeh
Abstract
To identify the subject of this Article, the pure defense first must be separated from hybrid counterclaim. Hybrid counter claim has a dual function: the first aim of this claim is to reject the adversary claim. On the other hand, as similar as the pure counterclaim, it renders a claim, out of the object ...
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To identify the subject of this Article, the pure defense first must be separated from hybrid counterclaim. Hybrid counter claim has a dual function: the first aim of this claim is to reject the adversary claim. On the other hand, as similar as the pure counterclaim, it renders a claim, out of the object of principal claim. In Iranian Law, some proving criteria have been rendered by legal writers to distinguish these two judicial acts. In these theories the probative value of the defendant’s documents, determine the necessity of filing a counterclaim. Upon analysis of this paper, the proving criteria in theory and practice are not convincing for distinction of counterclaim from merit defense. Criterion accepted in this Article is that in counterclaim, the defendant claim to get a profit other than mere reject of adversary’s claim. In spite of apparent simplicity of this criterion of distinction of counterclaim from merit defense, its practical application is not without complexity.
Private Law
Badie fathi; Khayrollah Hormozi
Abstract
The indivisibility of claims in the civil procedure of Iran and FranceAbstract The indivisibility of claims is different from the indivisibility of one claim and the indivisibility of judgments. In the Civil Procedure Code of Iran the term indivisibility of claims (Articles 104, 298) and the indivisibility ...
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The indivisibility of claims in the civil procedure of Iran and FranceAbstract The indivisibility of claims is different from the indivisibility of one claim and the indivisibility of judgments. In the Civil Procedure Code of Iran the term indivisibility of claims (Articles 104, 298) and the indivisibility and inseparability of judgments (Articles 308, 359, 404, 425) have appeared, but the term indivisibility of claims has not come.inseparability of claims does not cause "dependency of procedure" but necessarily creates "unity of procedure" between two or more lawsuits. Therefore, indivisible claims are processed as an inseparable "whole".It seems that the definition mentioned about complete connection in Article 141 of the Civil Procedure Law of Iran is not only the definition of connection, but it is the definition of the highest level of indivisibility of claims.However, for the indivisibility of claims, complete connection is not the only criterion and it has other criteria as well. Indivisibility in the proceedings also creates the effects of the unity of the procedure. For example, when the indivisibility of claims is realized, the expansion of jurisdiction occurs, and also the events of proceedings in one cause an effect on the other, and a appeal against one decision causes a appeal against another decision.Key words: indivisibility, inseparability, complete connection, dependence of procedure, unity of procedure.
Private Law
Mahdi Hasanzadeh
Abstract
The Code of Civil Procedure does not specify whether a verdict challenged by a third party is final or whether a non-final verdict can be challenged by a third party. In this regard, different and reciprocal views and analyzes are presented. The statement of Article 422 of the Code of Civil Procedure ...
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The Code of Civil Procedure does not specify whether a verdict challenged by a third party is final or whether a non-final verdict can be challenged by a third party. In this regard, different and reciprocal views and analyzes are presented. The statement of Article 422 of the Code of Civil Procedure regarding the objection of a third party, before the execution of the sentence and after it, is vague and debatable and has several problems. Examining the issue shows that considering various aspects, it is preferable not to consider the non-final verdict as objectionable to a third party and to consider the third party objection as specific to the final judgment. Article 422 of the Code of Civil Procedure should also be taken to mean that if a long period of time has elapsed since the execution of the sentence, in such a way as to indicate that the third party, if he had a right, waived it, after that, the third party objection will not be accepted unless it proves otherwise.
Private Law
Abdolvahid Sabaghi; fereydoon nahreyni; alireza Azarbayejani
Abstract
AbstractThe principle of immutability of the elements of litigation prevents unregulated seizures of the elements of litigation. Any change in the claim is subject to the conditions set forth in Article 98 of the Code of Civil Procedure. These considerations are in line with the principle of compliance ...
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AbstractThe principle of immutability of the elements of litigation prevents unregulated seizures of the elements of litigation. Any change in the claim is subject to the conditions set forth in Article 98 of the Code of Civil Procedure. These considerations are in line with the principle of compliance and protection of the defendant's rights against any surprises, The subject of the lawsuit and the transferee is the beneficiary in the lawsuit and has caused the creation of a new document resulting from this transfer and apparently has challenged the petition. The protection of the law is primarily the duty of the law and then the court, and the silence, ambiguity or conciseness of the law should not be used as a pretext by a party who has found himself convicted and intends to exclude the case from the hearing and hear the case. Sterilize the case. This research with a descriptive analytical method leads to the conclusion that by paying attention to these two changes in the elements of litigation, the gap can be filled and the judge can be given the ability to pay attention to the legal action. , At the same time as inviting the transferee to the trial, make a change in the request It is also considered as one of the effects of transferring the lawsuit and in parallel with considering the request stated in the petition, forcibly decides in the voting session on the new request and also on the document belonging to the deputy, either negatively or positively, because The authority extends its contents to the proceedings, including the recent document created during the hearing of the case, which, following the summoning of the deputy to the proceedings, a decision is also made regarding this document.
Private Law
Majid Azizyani
Abstract
Proof of ownership litigation in the various stages of property registration, there are rules about how to register such property, which must be taken into account, especially in real estate, which is subject to legal requirements and formalities and such a request cannot be accepted absolutely in all ...
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Proof of ownership litigation in the various stages of property registration, there are rules about how to register such property, which must be taken into account, especially in real estate, which is subject to legal requirements and formalities and such a request cannot be accepted absolutely in all immovable property with a single shape and quality. Action for ownership Proof is one of civil action that there are many differences of verdicts about accepting or rejecting it in legal authorities ,so that some of courts has accepted action for ownership Proof based on precedent No. 569 dated Dec.31,1991 of General Board of Supreme Court of Iran and believe that Legal obligation of owner to demand for their self-property registration in part which Public registration of real estate is advertised , not prevented that courts of justice adjudicate about disputes over property ownership and in some of courts avoid from such action by virtue of article 22,46,47 and 48 of Real Property Law and contents of precedent No. 672 dated Dec.21,2004 of General Board of Supreme Court of Iran and also contents law of course to pursue land without official deed. In present article , we review proof of ownership is basically devoid of description of the claim and opposition to the principle or appearance and it is merely a form of litigation that the courts are not the reference of the preparation of the case. The authority to declare ownership of immovable property is the registration authorities.
Private Law
Atefeh Zabihi
Abstract
One of the elements of a fair and efficient judicial system is the exactitude and integrity of verdicts issued by the courts of this system at different levels of the judicial structure. To obtain this feature in the verdicts, judges should observe and consider some criteria. In this regard, the judges ...
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One of the elements of a fair and efficient judicial system is the exactitude and integrity of verdicts issued by the courts of this system at different levels of the judicial structure. To obtain this feature in the verdicts, judges should observe and consider some criteria. In this regard, the judges are obliged to explain the reasons and causes of their judgment in detail when they are writing the justifiable reasons in the verdict. In some cases, human rights documents may be cited as the reason for the verdict at the discretion of the judge. So judges must observe some special formal and substantive principles. Because the hierarchy of norms in the legal system is different in the domestic legal system, and the type of document (and how to approve anyone) affects on binding of each document, the present study seeks (by using a descriptive-analytical method) to identify and explain the criteria for the validity and Impeccability of the verdicts issued by family courts in this matter (by using the opinions and experiences of judges). Finally, the author has expressed these indicators in the form of general rules of composition of the verdict and special requirements of criteria for exactitude and integrity of judges' verdicts based on International Documents in family litigation.
Private Law
Ehsan Bahrami; Sayyed Amin Pishnamaz; Amir Zare
Abstract
The claim is considered against the defendant when the court can consider the judgment against the defendant, assuming that the plaintiff's claim is true. This statement is effective in a lawsuit with the same respondent and defendant. However, its effectiveness in the claim against the deceased is questionable; ...
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The claim is considered against the defendant when the court can consider the judgment against the defendant, assuming that the plaintiff's claim is true. This statement is effective in a lawsuit with the same respondent and defendant. However, its effectiveness in the claim against the deceased is questionable; because in this claim, the plaintiff's claim is against the deceased and the defendant is a person other than the deceased, ie his heir. Hence, the question is «how can we identify the claim against the heir in such a lawsuit?» In this article, an attempt is made to provide an answer to this question by the library and field methods. In this regard, by searching the opinions of Shia’h Jurisprudents, it is observed that they have considered some conditions necessary for the claim against the heir. In this article, while reviewing these views, which have been discussed below regarding the conditions for taking the oath to the heir, the hypothesis is strengthened and proved that the relationship between the conditions for being the claim against the heir and the conditions for taking the oath to him is general and peculiar in some respects meaning that by proving three conditions including death, remaining the estate, and the inheritance relationship between the decedent and the defendant, the claim is against the heir. In Iranian law, in addition to accepting the need to prove the foregoing conditions to be the claim against the heir, an inheritance certificate as a way to detect the death and the relationship of inheritance between the deceased and the defendant and the rules on acceptance and non-repudiation of inheritance as a way to detect remaining of the estate is identifiable.
Private Law
Abdollah Rajabi; SeyyedHosseyn Hosseyni
Abstract
In some cases of intellectual property law (especially in the digital world), public and formal protections arising from intellectual property rights are not able to fully guarantee the exclusive rights of rights holders. Self-help is a way that is well able to cover the shortcomings of ...
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In some cases of intellectual property law (especially in the digital world), public and formal protections arising from intellectual property rights are not able to fully guarantee the exclusive rights of rights holders. Self-help is a way that is well able to cover the shortcomings of formal systems that protect intellectual property and play a complementary role alongside formal institutions. The legitimacy of personal actions is limited to cases where there are grounds for exercising the right; therefore, any reciprocal and retaliatory action is illegitimate due to the lack of grounds for exercising the right. Of course, protecting the right through personal action is not immune. Lack of restraint in the implementation of personal actions can make it a means for the right holders to abuse their rights and endanger the public interest and peace. Therefore, it is necessary for legal systems to always consider the balance between the public interest and the interests of right holders and to make it a tool in order to respect rights by targeting personal actions.
Private Law
mohammad hosein vakili moghadam
Abstract
It is commonly assumed that the costs of litigation are provided by the parties. However, the increase in litigation costs, and the need to manage the risk of litigation along with self-interest and earning profit, has also led to the emergence and spread of investment in litigation. Under a process ...
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It is commonly assumed that the costs of litigation are provided by the parties. However, the increase in litigation costs, and the need to manage the risk of litigation along with self-interest and earning profit, has also led to the emergence and spread of investment in litigation. Under a process called "litigation financing", a third party pays costs to receive a profit in the event of successful litigation, without relinquishing the right or transferring the litigation. Despite the advantages of this method, concerns have been raised about its adverse consequences on litigation. This article, through an analytical study of the nature and effects of litigation financing, seeks to answer the question of whether the nature of this legal entity is valid or not. And how can we take advantage of it and reduce its negative consequences? What can be accepted is that the financing of litigation is valid and its use will bring benefits to the Iranian legal system, but in order to manage it properly, it is necessary for the legislator to use the experiences of other systems before the popularization of this legal institution. The article brings up the main issues that should be considered in the legal regulation of litigation financing.
Private Law
nahid safari
Abstract
One of the most important aspects of consumer protection that has received little attention is the facilitation of consumer litigation. Costs of Litigation are one of the major barriers to consumer litigation. In Iranian law, the lack of special assistance for consumers and the limitations of the general ...
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One of the most important aspects of consumer protection that has received little attention is the facilitation of consumer litigation. Costs of Litigation are one of the major barriers to consumer litigation. In Iranian law, the lack of special assistance for consumers and the limitations of the general rules of insolvency and the limited financial resources of consumer protection organizations, in practice have created obstacles for consumers to sue. In different legal systems, different mechanisms are considered in order to remove this obstacle. legal expenses insurances can be considered as one of the tools that are effective in removing this obstacle and facilitating consumer litigation by covering cost of litigation and have been considered in most legal systems. The present study in a descriptive-analytical method and through collecting data with library method, while studying these insurances in some pioneering legal systems in this field, have studied these insurances in order to facilitate consumer lawsuits. The experience of the studied legal systems confirms that these insurances, along with other assistance tools, are a good solution to facilitate consumer litigation. In the Iranian legal system, despite the predicting of these insurances in the bylaws of mandatory advocacy, with the issuance of Unanimous decision of the Supreme Court, there are currently no special provisions in this regard. However, considering the acceptance of the insurance contract and the principle of freedom of contracts, these insurances are also defensible in Iranian law and while having a deterrent effect on the inflicting of loss to consumer, can have some deterrent effect on litigation costs. Therefore, it is necessary to revive the provisions of the recent regulations and legal protections for these insurances in order to use its positive functions.
Private Law
Mahdi Hasanzadeh
Abstract
The addition of the clause of "by oath of defendant" in Article 197 C.P.C. (Approved in 1379) raised questions, doubts, and discussions about the possibility or impossibility of issuing a sentence of acquittance of defendant without his oath, in cases of failure to provide evidence and not requesting ...
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The addition of the clause of "by oath of defendant" in Article 197 C.P.C. (Approved in 1379) raised questions, doubts, and discussions about the possibility or impossibility of issuing a sentence of acquittance of defendant without his oath, in cases of failure to provide evidence and not requesting the oath by the claimant, as well as the power or omission of the judge to swear defendant without asking. The analysis of this article requires the study of the subject in jurisprudence and the study of the viewpoint of the jurists. In jurisprudence, the issuance of verdict in favor of the defendant was not permitted solely on the basis of practical principles, including the principle of innocence, in cases of failure to provide evidence or requesting the oath by the claimant, and also the swearing of the defendant without the applicant's request. In the analysis of Article 197 C.P.C. it is necessary to provide an interpretation that does not contradict this article with jurisprudence and what is known as certain among the jurists.
Private Law
Majid Azizyani
Abstract
The Influence of criminal and legal on Verdict each other is one of important subjects of legal and penal cases. Upon view of some judges and doctrine of the legal court is bound to follow the final vote of the penal court and in case of simultaneous proceedings , the legal court is bound to cease the ...
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The Influence of criminal and legal on Verdict each other is one of important subjects of legal and penal cases. Upon view of some judges and doctrine of the legal court is bound to follow the final vote of the penal court and in case of simultaneous proceedings , the legal court is bound to cease the proceedings. If each of the legal and penal judicial court proceeding vote , upon the case, without consideration to the other court's votes , its vote is effective in the related case, there are adverse effects such as contradictory and unenforceable effects and accurate study of the judiciary proceeding in this regard is effective in representing of favorable solution. This article, while studying and consideration to the judiciary procedure has being become a position of dependency rule the legal court from penal definite vote in Legal law of Iran and a legal base of the mentioned rule such as validity rule of a competed affair and communication of the vote of the penal court with public discipline and dimensions, limit of rule and its judicial documentaries was investigated and finally the indicator judiciary proceeding and presentation of a base of an accurate law has been represented according to the judiciary rules.
Private Law
Mostafa Elsan; Payam Khanjari Kakavandi
Abstract
Objection to the plaintiff's representative at the time of filing the petition is one of the objections that cause a dismissal order according to Articles 84 and 89 of Iranian Civil Procedure Act. This objection does not apply if the petition is filed by the principal, because the authority is a matter ...
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Objection to the plaintiff's representative at the time of filing the petition is one of the objections that cause a dismissal order according to Articles 84 and 89 of Iranian Civil Procedure Act. This objection does not apply if the petition is filed by the principal, because the authority is a matter for the representative only. In addition, the effects of missing or losing a position during the trial are different from the absence of a position for the plaintiff's representative at the time of the lawsuit.In this article, while dealing with the concept of representation and some of its examples in the judicial procedure, the issue of lack of position and its effects in the Iranian civil proceedings are examined. The main question is what the objection of not holding the authority means and if this objection is found in the proceedings, what decision should the court make about it? There are several possible reasons for the illegality of the person claiming representation; In any case, the court must prevent the intervention of the person without representative in the proceedings by asserting this during the trial.
Private Law
hasan mohseny; hosein davoodi
Abstract
litigants sometimes refer to own wrongdoing and expect the courts to rule in their favor. If such lawsuits or defenses are accepted, justice will not be done and a solution must be found to solve this legal problem. In this case roman maxim " Ex turpi causa non oritur action, ex dolo malo non oritur ...
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litigants sometimes refer to own wrongdoing and expect the courts to rule in their favor. If such lawsuits or defenses are accepted, justice will not be done and a solution must be found to solve this legal problem. In this case roman maxim " Ex turpi causa non oritur action, ex dolo malo non oritur action " are cited in legal systems . The most important thing about that is the concept and scope of its application. Therefore, the concept and scope of this maxim was examined in some legal systems, especially common law system, and some instances of it were researched. It became clear that in most legal systems, this principle is considered a certain legal principle. This maxim cited in foreign law in three sections: contracts, civil liability, and trust. The meaning and rules of applying this maxim in foreign law are not very clear; However, legal principles and policies and methods have been proposed to apply it, and there are instances such as illegal transactions, bribe restoration, slayer rule, and the responsibility of the offending managers to company, Which sometimes was criticized and Has been set aside. This maxim have a moral basis and considered as a requirement of justice. However, in practice, in order to avoid its mechanical application, its application is at the discretion of the judge, and this is done with the balance of the importance of the wrong and the amount of damage, and with Considering such rules as prohibition of unjustified enrichment. Islamic jurisprudence and Iranian law like any other legal systems, has it inside. This maxim can also be considered in litigations, and as a procedural rule prevents the parties from invoking their violations and prohibits the hearing of lawsuits or defenses that documented with violations of the plaintiff or defendant
Private Law
Koorosh Ostovar Sangari
Abstract
AbstractOne of the issues raised after the establishment of the Administrative Court of Justice was who can appear as a plaintiff in the Administrative Court of Justice and whether state agencies can appear as a plaintiff in the Administrative Court of Justice. According to the rulings No. 37, 38 and ...
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AbstractOne of the issues raised after the establishment of the Administrative Court of Justice was who can appear as a plaintiff in the Administrative Court of Justice and whether state agencies can appear as a plaintiff in the Administrative Court of Justice. According to the rulings No. 37, 38 and 39 of the Court of Administrative Justice in 1368, state agencies can in no way be present in the branches of the Court of Administrative Justice as a plaintiff. This decision was approved by the General Assembly of the Supreme Court in No. 602 in 1374, but the question was raised that what is the task of the state apparatus in relation to matters within the jurisdiction of the Court of Administrative Justice? In 2007, the General Assembly of the Supreme Court, Decision No. 699, tried to somehow open this deadlock and find a solution to this problem. However, these votes of the General Assembly of the Supreme Court created other problems, hence the vote of unity. Procedure No. 792 was issued in July 2016 and has somehow annulled votes No. 602 and 699. The author believes that vote 972 is a positive development in the separation of powers of the Court of Administrative Justice and public courts.Keywords: Procedural Unity Vote, Jurisdiction, Administrative Court of Justice, Public Court,State.
Private Law
Ali Akbar Farahzadi; SeyedRasool Mirnejad
Abstract
The litigation process contains rules and conditions set by the legislature and the litigants must abide by these rules to end the legal dispute and thus end the legal dispute. However, these rules are the means of exercising the right and therefore must be interpreted in such a way as not to prevent ...
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The litigation process contains rules and conditions set by the legislature and the litigants must abide by these rules to end the legal dispute and thus end the legal dispute. However, these rules are the means of exercising the right and therefore must be interpreted in such a way as not to prevent the court from entering into the nature of the dispute and, consequently, the chapter on hostility. In this regard, one of the effects of accepting this analysis is to prevent re-litigation by amendment and correcting the shortcomings of the litigation. This will save time and money for the litigants and increase trust in the litigation system. On this basis, the principle of restoration of the proceedings has been mentioned in order to create and accept a general rule according to which the court, together with the litigants, should place the principle on the remediation of the defects of the proceedings and as a result move towards completion. However, the scope and conditions related to the implementation of the principle of judicial restoration are important issues that are mentioned in this article.
Private Law
ali amiri; Javad Tahmasebi; Batool Pakzad
Abstract
"Management of referral of criminal cases in guaranteeing an impartial trial", while having an intangible and intangible feature in the trial process, has an extraordinary role in the formal and substantive processing of proceedings and the strategy of the country's supreme judicial management. Although ...
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"Management of referral of criminal cases in guaranteeing an impartial trial", while having an intangible and intangible feature in the trial process, has an extraordinary role in the formal and substantive processing of proceedings and the strategy of the country's supreme judicial management. Although with the return of the legislator from the managerial approach and determining the two criteria of "specialization" and "order", in drafting Articles 448 and 465 of the Code of Criminal Procedure, It has taken an important step towards the rule of law and the oversight of managers, but the lack of full entry into this field, The challenge of overcoming this problem remains unresolved. And despite the Supreme Disciplinary Court's commitment to legislative safeguard policies, the lack of coherent rules and adequate safeguards in this regard allows any referring authority to abuse its powers and legal loopholes to curb the initiative. And by his purposeful referral, divert the course of the proceedings from the path of justice and deprive the parties to the dispute of the right to equality and the enjoyment of an impartial tribunal. Therefore, diligence in training and reducing the concentration of power of the referral authority, selection and appointment of experienced, committed and specialized managers, explaining the position of the referral in the trial process and aspects of appealing against votes, setting appropriate deadlines and comprehensive criteria for referral, along with performance guarantees Special and providing desirable oversight, can help to refer wisely and impartially and thus improve the efficiency of the judiciary and community satisfaction.
Private Law
Mahdi Hasanzadeh
Abstract
According to codes of procedure (articles 348 and 371 Civil Procedure Code and article 477 Criminal Procedure Code) "Contrary to Islamic Jurisprudence" has been announced as the cause of quash of judgments. It is an important point and should be studied if this cause is applicable to all judgments or ...
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According to codes of procedure (articles 348 and 371 Civil Procedure Code and article 477 Criminal Procedure Code) "Contrary to Islamic Jurisprudence" has been announced as the cause of quash of judgments. It is an important point and should be studied if this cause is applicable to all judgments or just judgments which rendered by virtue of religious sources and injunctions and according to principal 167 Constitutional law and article 3 Civil Procedure Code. Applying this cause in the manner that causes quash of judgments which rendered according to laws, it bring about the violation of the laws and this result is not coordinated with constitution law and legal system and arises the shaking of laws and disorder of legal system. Then, for solving this fundamental problem, we are obliged to know this cause as dissuaded from cases which its applying causes the quash of judgments which rendered according to laws.
Private Law
Abdollah Khodabakhshi
Abstract
There is a time allowed for appealing against the arbitrator award (20 days or two months as the case maybe). If this deadline did not respect, the court would issue an order rejecting the petitioner that as specified (As stated) in Article 492 Code of Civil Procedure is certain. Therefore, there is ...
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There is a time allowed for appealing against the arbitrator award (20 days or two months as the case maybe). If this deadline did not respect, the court would issue an order rejecting the petitioner that as specified (As stated) in Article 492 Code of Civil Procedure is certain. Therefore, there is no way for the plaintiffs to challenge the court order! This result, in some cases, is clearly unfair and causes the loss of rights. Thus, a path should be opened for its logical interpretation. As regard that sometimes are seen some obvious mistakes in Arbitrator’s award and Sometimes the first courts make a mistake in calculation of term and deadline of the protest and also in the other words There should be a way to control the decisions of arbitrator, and the court, and the current state of Article 492 of the mentioned law certainly has irrational and unjust consequences. Attentively, the principles of arbitration and the rules related to legal deadlines, consequently the present article tries to show the main purpose of the legislature and the scope of the mentioned article with a view to judicial decisions. It should be said that despite the appearance of this article, its application is not referable.
Private Law
saeed safian; mohammad mahdi meghdadi
Abstract
Bring an action is with the petitioner, therefore determining the title of action is dependent on the decision of plaintiff. The legislator has not, except in exceptional cases, chosen the mandatory titles for civil actions and has assigned the choice of title of action to the plaintiff due to the unlimited ...
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Bring an action is with the petitioner, therefore determining the title of action is dependent on the decision of plaintiff. The legislator has not, except in exceptional cases, chosen the mandatory titles for civil actions and has assigned the choice of title of action to the plaintiff due to the unlimited examples of civil actions and because of the base and nature of action. Therefore, the prosecutors are required to recognize the decision of the plaintiff to name their action. However, the title of the plaintiff is different from the one that is common for action or the legislator has used. In fact, the principle is on the authority of plaintiff to determine the title of a civil action unless the legislator itself specifies the elements and the title of the action, in which case the elective title of the legislator is mandatory. The principle of mastery of parties on the thematic directions of action and the principle of hearing action confirms the authority of plaintiff in determining civil action. In this article, the existence of this principle in the civil proceedings is investigated and confirmed.
