جستجوی مقالات مرتبط با کلیدواژه "دعوای واهی" در نشریات گروه "فقه و حقوق"

The necessity of supporting the financial convicts in compensation for the negative effects of the imprisonment has created a suitable environment for profiteers and problems for the judicial system. Easy escape from the obligation by the debtor with proof of indigence and debt installment, available proofs of claim for the financial convicts in order to guilefully proof of indigence, excellence default proceeding over contradictory proceeding and frivolous actions (jactitation) like tierce opposition to executive operations or distress only with trigger to delay in the executive operations are problems of the judiciary in execution of judgments. According to the author, confrontation with abuse of rights in process and judicial management is the most important way to solve the prorogation in the execution of judgment. The execution of judgments of mighty judge should reduce judicial mistakes in process and present judicial services in the reasonable period of time at the lowest cost. Legislator should also make useful rules to prevent  abuse of process and smooth the way for quick and low- costs execution of judgment route

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.

Litigation and its forms (which is "the right to sue" and the "the right to appeal against decisions) is one of the most important rights granted to individuals; these rights may be abused. For this reason, the issue of "abuse of the right to sue" and "abuse of the right to appeal against decisions" is raised. This study seeks to analyze the approach of the Iranian and French legal systems regarding the abuse of the above rights. The results of this study indicate that: The law of Iran on the prohibition of "abuse of the right to sue", provides a guarantee of enforcement, but does not say anything about "abuse of the right to appeal against decisions." French law prohibits the abuse of both rights and guarantees effective enforcement.

In Iranian Procedural Law, the security for costs order of frivolous claim is a solution that is provided to recover the potential costs of the defendant. However, due to the lack of criterion for identifying frivolous claim in Article 109 of the Civil Procedure Code and its hint to the words "type and circumstances of claim", the application of this solution has faced a serious challenge in the judicial precedent. Indeed, although the security for costs of frivolous claim order requires identifying the frivolous claim, no criterion is provided in this matter in Article 109. In contrast, in English Procedural Law, if the claim has no legal effect or is obviously ill-founded or vexatious (which are all frivolous), the court may strike it out and order the plaintiff to pay costs to the defendant. According to prior contents, this article intends to fill the gap in Iranian legal literature. For this purpose, while studying the criterion for identifying frivolous claim in English law, this hypothesis is reached in Iranian Law: If the facts of the claim are not able to occur or assuming the ability to occur, there is a potent possibility of its non-fulfillment, the claim is frivolous. Further, if the claim is not based on any evidence or if it is based on evidence, there is a potent possibility of failing to prove the facts of the claim, the claim is frivolous. In addition to these, if the claim has no legal effect even if its facts are true, the claim is frivolous.

Considering the unique role of foreign investment in the process of economic growth and development of countries in recent decades, the importance of an efficient legal system in order to support it becomes more and more apparent. Considering the possibility of partiality in national courts in order to settle disputes caused by foreign investment, in most treaties and investment contracts, the tendency to arbitration mechanism is noticeable. The descriptive-analytical study of the arbitration proceedings in the above-mentioned issue shows that arbitration alone is not sufficient for the efficient and fair settlement of claims arising from foreign investment and requires substantive and formal requirements. Compliance with the minimum standard (in the treatment of foreigners) and compliance with the principle of proportionality is one of the most important substantive requirements, and avoiding parallel proceedings and preventing fictitious lawsuits can also be considered as one of the most important formal requirements that must be observed by the institutions and the court. Arbitration proceedings at different domestic and international levels will have a significant contribution to the fairness of arbitration proceedings and, as a result, the efficiency of the legal system in order to support foreign investment. It seems that despite the increasing desire for arbitration mechanism in foreign investment treaties and agreements, a significant consensus regarding its requirements has not been formed at the regional and international level.

Fictitious litigation that is often biased by the plaintiff (whether principal, counterpart, entry or third party, or in the form of objections and complaints), includes any claim at the initial stage or even at the stages of the appeal (retrial, third party appeal and appeal), the purpose of which is to harass the other party, delay the process of processing the main lawsuit, delay the execution of the final verdict, obtain a deadline for the plaintiff in the lawsuit and take the opportunity from the other party. In the jurisprudence of Common Law, which pays more attention to fictitious lawsuits and seeks to reduce these types of lawsuits, fictitious lawsuits are defined as not being caused by any judicial or substantive reason. The main question is whether studying the Federal Law of the United States can provide solutions to reduce litigation and defenses by litigants and their attorneys. This article tries to explain the management of fraudulent lawsuits in legal courts based on the jurisprudence of Iran and the United States and to provide the necessary solutions to the judicial system of our country.Although the US Law has a broad view of fictitious litigation and defense, the Iranian Law lacks sufficient tools to reduce fiction. For example, in the Iranian Law, a lawsuit that qualifies as a counterclaim after the issuance of a final judgment in favor of the plaintiff is not excluded by the defendant (the convict against the first lawsuit). It is also not prohibited in Iran for the defendant to express her defense during the proceedings and later to file the same defenses as an independent lawsuit and disrupt the execution of the final judgment issued in favor of the plaintiff. However, measures to reduce litigation and litigation costs and prevent the abuse of litigation must be carefully considered. The result will be an increase in the quality of the proceedings and a reduction in the density of cases in the judiciary.

In this article, the effects of lack of good faith in the draft petition are analyzed with the aim of identifying the elements of good faith and the lack of it in the petition, as well as recognizing the judicial procedure. The main question is whether the lack of goodwill damages the petition. And how should this be discovered and what are the positive evidences? And in cases where the plaintiff does not have good faith in filing a lawsuit, what decision should the court make?By descriptive-analytical method and by studying jurisprudential and legal sources and extensive research in judicial opinions, it was concluded that although the theory of goodness is not explicitly mentioned in the laws, it does not mean that it is not part of the conditions and principles of civil proceedings. And there are several positive evidences to discover its lack in the judicial procedure, and the guarantee of several performances is also provided in the legal texts as well as in the judicial procedure for this matter.

Participating in a lawsuit involves costs for the parties involved, including the court, the plaintiff and the defendant, and the legal system governing these costs plays an important role in achieving civil justice. A comparative study of the provisions governing the provision and compensation of legal damages in the law of Iran and the United Kingdom better shows the shortcomings of the current Iranian laws in this field and is effective in correcting them.   

The present research has been compiled in a descriptive-analytical manner with a comparative view of various documentary sources and studies in Iranian and British law.  

The legislature, in order to guarantee possible damages, has made it possible for the plaintiff to cover his costs, which, in view of the lack of a proper mechanism for forecasting the duration and quality of proceedings and estimating costs, is a shortcoming compared to a similar institution in English law. ‌ There are some. Also, in order to compensate for definitive damages resulting from court costs and other court damages, following the rule of "post-event costs", damages have been transferred so that no damages remain without compensation. However, in Iranian law, unlike in the United Kingdom, not giving the judge the power to review the circumstances of the case and the litigants, in addition to the possibility of abuse of the institution of fictitious litigation, also leaves the door open to abuse the right to sue and these shortcomings The unwillingness of the defendants to settle their dispute out of court and the abandonment of the principle of good faith in our judicial system is crystallized.

The legal entity for securement of baseless lawsuits and securement of foreigners Is recognition and foreseen in articles 109and 144 of the code of civil procedure, respectively. Scrutinizing in the contents of these articles indicates that while the conditions of each one of these two securement are the same in cases, but generally, these two types of legal entity should be considered distinct and different from each other. herein, in cases where plaintiff claimant is foreigners, and we are confront with the apparent conflict of these two types of securement, the main question is whether the Iranian defendant can apply the issuance of both types securement of foreigners and securement of baseless lawsuits from the court or no? Will only be able to request one of securements? The results of the present research show that in the supposition that the defendant is foreign and lawsuit is baseless,Issuance of securement of agreement of foreigners which in one side also secured the interest slightly in securement of baseless lawsuits and of the other side through the court obligation to issuance it to spend question defendant is preferred: Except in cases where we confront with common exemptions or specific to these two types of securement that basically issuance of either of these two will be rejected and eliminated here.

Nowadays, security for costs order to prevent frivolous claims has been recognized in most national and arbitral institutions laws. Nevertheless, Iran’s international commercial arbitration Act like Uncitral Model Law, 1985 has not mentioned it and so it has result in some questins in possibility and conditions to order it in arbitrations covered this law. This writing through descriptive analytical and also comparative method provides clear meaning for security for costs order and surveys its possibility and conditions to order it under Iran Law. The essay shows although it is possible to order this provisional measure, the conditions for awarding it should access with considering lex mercatoria. Other procedural ambiguities are resolved taking account applicable rules on measure interims.

Nowadays, the arbitrator can issue various protective orders in the arbitral process in international commercial arbitration. Some of these orders are so important that if the arbitrator makes decision incorrectly about the order, the award on the merits will be ineffective for winning party. The order of security for costs in arbitration is one of the above-mentioned orders. The respondent in the claim or the respondent in counter-claim requests the arbitrator to grant an order against the plaintiff for paying the sum of money. If the arbitrator’s final decision on the merits is not favor of the plaintiff, the costs of respondent for defending the frivolous claim will compensate from money. There are both advantages and disadvantages for ordering security for costs, but the advantages of this order are so much that the possibility of granting this order whether expressly or implicitly is accepted in most arbitration laws. With considering non-mentioning of security for costs in Iran’s International Commercial Arbitrations Law, the essay first is trying to study the concept and nature of security for costs order and second survey the possibility of ordering of it under Iran’s International Commercial Arbitrations Law.