Comparative Study of the Basis for Retrial of Civil Judgments with Emphasis on the Rule of Res Judicata (Criticism of Article 426 of the Code of Civil Procedure)

In different legal systems, there are two main bases for retrial. Most legal systems, such as France, Italy, Germany, and Jordan, have chosen the basis of the "authority of res judicata". However, in the Iranian legal system, the basis for retrial is "the finality of the sentences". According to studies, the " authority of res judicata", in line with the philosophy of retrial, ie the provision of judicial justice, is a comprehensive basis on which all decisions of judicial and non-judicial authorities and arbitration due to the "Res judicata" cannot be re-heard can be retried. But in Iranian law, many court decisions, such as "final warrants that are a permanent impediment to the re-sue", "writ of disposal of a suit", "arbitral awards" and "consent judgment", while having Res judicata, because they are not considered "sentences", they cannot be a retrial. However, considering that these decisions can be retried, the philosophy of retrial and the provision of judicial justice requires that these decisions also be a retrial. Therefore, to ensure judicial justice and adopt a comprehensive basis in determining the jurisdiction of retrials, in line with most legal systems, amend Article 426 of the Code of Civil Procedure and identify the criterion of "Res judicata" as a basis for retrial is necessary.