جستجوی مقالات مرتبط با کلیدواژه « آیین دادرسی مدنی » در نشریات گروه « فقه و حقوق »

Abstract The civil procedure is most influenced by the history and culture of any country, so one of the most basic questions is that; what historical factors are effective on the civil procedure? In Europe, the Roman-canonical procedure is dominant and this dominance is due to the political decisions to form new courts, the appointment of learned lawyers in those courts, and the legislation regarding the procedure in line with the progress of new sciences. Also, the abolition of common forms of litigation was the result of the political decisions of the 19th-century British Parliament. In short, the modernization of the European procedure in the late Middle Ages was the result of the cooperation of intelligent rulers and the cost of territories. The 20th century, as a result of political and social developments, witnessed the emergence of socialist laws and socialist procedures. The procedure in Iran has also been subject to the religion and the will of the rulers until in the new era, with the formulation of laws and the regulation and coordination of state courts, and the use and adaptation of foreign laws, Iran also joined the modern procedure methods. This article analyzes the role of rulers, clerics and the emergence of universities and new sciences in civil

The laws of Iran, in many cases, including the family courts, the dispute resolution council and forcible entry’s quarrel, with unclearly pointing to the non-observance litigation formalities without defining the scopes of their non-observance, have brought about the disparity of judicial proceedings. In this regard, lawyers definition of the "litigation formalities" is also almost and there is considerable controversy in explaining its implications. Discrepancies in cases, such as petition, communication, court costs and due dates were so high, that Some of which have been considered as a principles of the proceedings and some others place it as part of litigation formalities. So in distinguishing between the litigation formalities it must be properly segmented; the first is the "formal ceremony", which consists of two parts; But in separating the formalities of the judiciary, it must be properly segmented; the first is "fundamental formalities" which consist of two parts; The first part, including the communication and the hearing session, is "the formalities of the introduction of the implementation of the principles", which can not be dismissed even with the stipulation of the legislator. The other part, including petitions and court costs, has been "Basic formalities of litigation", which can be leaved out by the legislator's case in certain proceedings. The second type is formalization with a weaker degree of "simple formalities", which includes many examples, including how it is communicated, the time of the hearing, the due dates and the respites.

Dealing with lawsuits and its stages is the most important and sensetive work of the judiciary, which is finally done by the courts issuing a verdict.From the very beginning of the lawsuit, the judiciary charges a fee for issuing decisions issued by the courts, which is known as "cost of proceedings", and in all procedures and its various stages, special attention is paid to them by placing strong enforcement guarantees.As can be seen from this title, the court needs to receive this fee in order to issue a verdict.In other words, until this fee is paid by the claimant, the case will not enter the trial process. In Islamic law, there has been a difference of opinion about the legitimacy of charging legal fees, and a group considered it absolutely permissible, and some considered it absolutely not permissible, and a group proposed separate rulings with a detailed plan on the issue. In this article, which is organized in a descriptive-analytical way, while carefully examining the evidence of all viewpoints surrounding this issue, by obtaining the SAHIHE Hadith from "Ammar bin Marwan", the illegitimacy of the legal fees based on it was proven.

Issuance of Vote Unity Procedure No699Court regarding the objection to the decision of the Commission Article77of the Municipal Law raised the suspicion that first of all whether the courts of law have jurisdiction to appeal against the decisions of the commissions Do you have a quasi-judiciary?And in the case of acceptance of jurisdiction, which of the formal law?administrative proceedings require the application of the same formal rules.example, according to of Article16of the L.O.P.CA Justice,objections to the decisions of quasi-judicial commissions must be made for persons residing in Iran within3months,or the cost of the objection proceedings is fixed.Now, if we assume the jurisdiction of the courts, from the point of view of formal criteria, are the legal courts obliged to comply with these regulations?In particular,Article1of the Code of Civil Procedure in the definition of this law doesnt mention administrative lawsuits and the obligation to implement the rules of civil procedure is set only in the position of dealing with civil matters and all civil and commercial lawsuits And there is no obligation on the court of law to observe the procedure of civil proceedings in administrative lawsuits Incidentally,the prevailing logic of the necessity of order and structure in any trial requires that a specialized trial be conducted with specialized tools and instruments in the same field and in the same way,which we will examine in detail in this research And more importantly,with the enactment of the L.O.P.C.A Justice in1390the unanimous decision No699has been abrogated

Divisibility or indivisibility of a lawsuit is one of the important topics and issues of civil procedure, which is of great importance and necessity. The purpose of this article is a comparative study of separable lawsuits and separation of lawsuits in the civil procedure of Iran and France.
This article is descriptive and analytical. The materials and data are also qualitative and data collection has been used.
Ethical considerations: In this article, the originality of the texts, honesty and trustworthiness are observed.
The findings of the research show that both in Iranian law and in French law, the concept of divisible and indivisible litigation is raised in the plurality of litigants; When the number of applicants or readers is more than one person. If the rights and interests of the litigants can be separated from each other in such a way that the actions and actions of each of them, as well as the decisions of the court, do not affect the plaintiffs or other plaintiffs, it is called a separable lawsuit; Otherwise, this suit is indivisible.
The civil procedure law does not have an explicit provision regarding the separation between lawsuits and the combination of several lawsuits in one proceeding, and the type of judge's decision is not foreseen in both cases. Also, the lawgiver has kept silent about the divisibility of the lawsuit and the judge's decision in the assumption that he has to split the lawsuit.

Principle of publicity is one of fundamental principles of proceeding which has been regarded as an essential component in fair trail in human right documents and there are clear signs confirming it in the Imamiya jurisprudence.  The Civil Procedure Act 1379 unlike Civil Procedure Act 1318 and Criminal Procedure Act 1392 is silent about it; but according to Constitution Act, Principle 165, observation of this principle is necessary in civil cases too.  Principle of publicity do not restrict to usual proceeding that in it the parties are required to be present in the court, rather, its observation is necessary in electronic proceeding; because this two proceedings have not substantive differences, and only holding procedures are different.  On the other hand, currently lack of space in courts and long distances cause this principle to be isolated, using electronic instruments facilitate the presence of people in courts by spending less time and small expense.   This approach not only has not any conflict with jurisprudential foundations, but also it is in compliance with them under the auspices of conditions of time and place, as it removes losses arising from the isolation of publicity of trials and facilitates its application. Practice of wise-men, generality and unconditionality of reasons relating to publicity of proceeding together with lack of prohibition on the side of Shariah confirm this approach. Therefore, the comprehensive system of electronic proceeding and national justice network should not restrict itself to the parties of a given case and instead it needs to allow those who intend to participate in legal proceedings by creating technical and legal infrastructure.

In order to avoid making conflicting judgements, and to reduce multiplicity of actions and judicial costs, some institutions such as ancillary and related claims have been considered in Iranian law. Nonetheless cross-claim does not exist, that is, whenever there are two or more plaintiffs or defendants, one plaintiff can litigate against co-plaintiff and one defendant can file a lawsuit against co-defendant. Various institutions have been adopted in U.S Federal Rules of Civil Procedure for joinder of claims and permissive or compulsory joinder of parties. Therefore, the drafters have endeavored, by getting away from common law and based on equity, to prevent multiplicity of cases among parties and adjudicating different aspects of same or common issues of law and fact together. One of these mechanisms is cross-claim by witch whenever there are more than one plaintiffs or defendants in action, one plaintiff is able to litigate against the other and a defendant can start a case against co-defendant on the understanding that there is a logical relation between original and cross claims. This article examines the possibility of using this institution in Iranian Law.

article 1 of Civil Procedure Law of Public and Revolutionary The legislator has introduced the Civil Code as a collection of “principles and regulations” in the top of theCourts on Civil Affairs approved in 2000. Paragraph 3 of article 371 of the said law has also mentioned that violation of principles of procedure and customary laws could be the cause of violation of the appeal verdict requested in the Supreme Court. Articles 18 and 19 New Dispute Resolution Council Act approved in 2015, and the relevant notes have discriminated against the most critical examples of the procedure principles, regulations, and formalities. The customary laws, principles, and procedure formalities are three crucial keywords and the requirements of systematic dealing of the lawsuits of entities (whether civil or criminal lawsuits). Hence, everyone shall observe them in all phases of the procedure. The underlying axis of the present study is discussing the determination of the concept and sanctions of enforcement of the procedure principles. After that, analysis of the role of procedure principles in the process of codification of statutes is presented in the second step. Besides, because of the impact of observance of the concepts in the credit of votes of the courts, the sanction for violation of these concepts in the process of civil procedure is discussd.

The concept of procedural rules apparently is obvious, nevertheless, you can say, features of procedural rules not analyzed properly. Indeed, the nature of these rules is questioned. Bentham as one of very old philosophers has defined the concept of procedural rules. In his view, procedural rules are the means of enforcing substantive rules. Procedural rules in goals, features, and functions are different from substantive rules. These rules are the means of applying sovereignty, serving procedural rights, they are voluntary, they have supremacy on substantive rules, and they are technical concepts, with special ways they harmonize between personal rights and sovereignty, and do order between people themselves as well as people with sovereignty

The referral of individuals to the courts is often the main right to bring proceedings in the nature and claim of the original right, but sometimes there are cases where the purpose of the reference is not to obtain a ruling, but to refer to the right to secure the right to secure, a right which, prior to the issuance and Or the execution of a vote is at risk of destruction. Sometimes, the goal is to put the security reason behind the difficulty of using it in the future. On this basis, in the Iranian legal system, there are three legal entities that are in line with these goals Legislators have been recognized: interim orders, supply requests, reason supply. Interim orders and requests for custody are among the precautionary measures in the Civil Procedure Code, which usually will not be a problem if they are issued and enforced in the future. An application for interim and interim orders can be filed before the lawsuit is filed, filed a lawsuit or filed. There are similarities between these two entities, the existence of these similarities should not create the impression that the role of these two entities is the same because, despite the existing similarities, there are some important differences between the two entities which makes them distinct. In this research, in the form of three chapters and conclusions, the first chapter of supply is requested and in the second chapter, the interim order will be explained, and in the third chapter, we will discuss the means of differentiating these two and finally concluding.

Following formalities and rules of procedures are primary requirements of right in the judiciary system which guarantee the principles of Civil Procedure and stabilize the judiciary process. The Formalities must be determined by legislator to avoid putting its burden on the shoulders of the judge and exposing the parties to judicial tyranny. Although the period of grace is provided in our legal system in Art. 277 and Art 652 of the Civil Code as a Substantive law, its procedure of applying has not been determined correctly and comprehensively neither in civil code, nor civil procedure code and other acts such as Enforcement Procedure of Monetary Condemnation Law. Anyway, this approach is neglected in our judicial system and is required to be investigated .

The Principle of «Taadol Tarafoei» which is also referred as «Tanazaor Principle» is one of the principles of fair trial. This is as the primary principle in all judicial systems in the world. This means that there should be fair deal between parties. Hence، violating this principle causes injustice in trial. This principle which is the base of justice is indicated in international documents such as European Convention of Human Rights. However، in none of Iranian laws we don’t see it as the principle for establishing justice in judicial trial. The present article tries to study the base and nature of this principle in Islamic law and international documents.