جستجوی مقالات مرتبط با کلیدواژه "civil procedure" در نشریات گروه "فقه و حقوق"

The principle of good administration of justice requires that all related lawsuits be investigated and dealt with by a single branch. so that the judge can render an appropriate judgment on all aspects of the case and also To avoid conflicting decisions.However, in the Civil procedure of Iran and France, various challenges may occur when joining related cases:If the judge does not find the connection between the lawsuits and examines each case separately and issues their decision, or if related cases are being heard in two branches of the same court and there is a dispute about the existence of a connection between the judges, does the president of the court have the right to resolve the dispute between the judges or not?What should be done if the cases are being heard in two courts with local jurisdiction and there is a dispute between the two courts regarding the existence of a connection between the cases? Or if there is a connection between the cases in absentee proceedings, is it possible to join the cases or not? What is the sanction for violating the joining of related cases? In this article, we are trying to find the challenges of joining related cases in a comparative way.

Today, Information technology has penetrated all sectors of society and its impact on the advancement of processes is significant. The judiciary and the prosecution are not exempt from this and application of technology in this area is popular all over the world. Although discussion on the possible use of technology in this sector is not very old but from the beginning it has been met with reception and introduction of proposals in various areas, in order to better use in the administration of justice.Our country is also not far behind and use of technology in the judiciary is following up with related laws and regulations. The necessity of application in this section has been the subject of many studies and articles and some Recommendations has been provided for use in proceedings that they has been more in the field of criminal procedure.However Study about the issue that technology specifically in which procedural steps and sections could be used or not, is novel and although necessary to know. In this article, by investigating details of civil procedure form and looking in to each parts from possible use or non-use of technology, effort has been to inaugurate an opening to offer new recommendations.

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.

According to Article 15 of the Electronic Commerce Code of Iran (2003) repudiation of the Secure Data Message is not heard and on the other hand, upon the attached Note to Article 1 of Check Code (2018) “The regulations and statutes concerning the Check, as per the case, is required about checks issued in data form too”. Also, we know that one of the formal defenses against unofficial documents, including checks, is repudiation. Accordingly, and given that technically and routinely, issuing an electronic check requires an "electronic signature certificate" to authenticate the issuer, and while these requirements, in the final analysis, give the "reliable" description to the check data message the question arises whether it is possible to deny a check issued in the form of "secure" message data. In other words, what is the duty in the conflict between these two legal propositions? The authors have analyzed the discussion by the descriptive-analytical method after examining the principles of the supplementary note, carefully in the same provisions in other electronic documents in domestic and foreign law, and have concluded for each of its branches.

The principle of disputing parties' autonomy (Le principe dispositif) as a leading procedural principle indicates the initiative role of plaintiff in the civil proceedings and gives him/her the opportunity to modify the elements of actin brought. However, the prohibition of surprising in civil procedure and necessary respect for the rights of defense require that any modification of the elements of civil action regulated and arranged only in the form of legally recognized institutions under the relevant terms and conditions. The most important element of civil litigation is the cause of action, which seems to be a relatively complex and mysterious concept. The debate over the concept and nature of the cause of action has been somewhat discussed among legal writers, but still seems incomplete. In addition, the manner in which the cause of action is modified has received less attention, and the ambiguities in this area have lead to the complexity of the issues related to the cause of action. The main idea of the present article is based on the possibility of designing multiple causes to justify a single civil claim, and accordingly, the possibility of increasing or decreasing the number of causes of litigation, as well as the possibility of changing the cause of action has been accepted and an attempt has been made to comply with well-known standards and rules of civil procedure.

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.

Istishab (presumed continuity of laws) is one of the practical principles that is widely used in jurisprudence and law. The status of this principle in jurisprudence and law and the lack of coordination of law with jurisprudence in this area needs to be studied. Regarding the application of this principle to judging and proceeding, the situation is different in jurisprudence and law. In jurisprudence, the application of this principle to judging is in serious doubt, and the jurists, except in rare cases, have not discussed the application of practical principles including istishab, and the lack of application of practical principles, including istishab, has been resolved and stipulated by the jurists. However in law, it is a famous view that this principle can be applied in litigation. This reputation has been influenced by the popularity of the application of practical principles in jurisprudence and law, and the particular status of practical principles of judging in jurisprudence has not been addressed. The article 198 of Civil Procedure Code has also stated the principle of the survival of already proved right and debt.

One of the characteristics of the English judicial system as the cradle of common law is the existence of the rule of precedent and its use in the proceedings. This rule, which is based on creating unity and commonality between different customs, requires judges to follow previous opinions. Of course, the judgment is binding if it is issued by the Supreme Court and is consistent with the new event. However, at present, this institution does not have an exact equivalent in the legal system of civil law, but In this article, it has been tried to show that, French law has long used tools with a similar function under the name of regulatory decisions. On the other hand, Iranian law has not equivalent for it and in the case law of Iran, the unanimous rulings of the Supreme Court cannot be introduced as its equivalent. Furthermore, the Islamic judiciary has also followed from such an approach.

Although civil procedure is part of formal law, it is influenced by substantive law. Due to the need for conformity of the rules of procedure with the Sharia (Islamic Law), jurisprudential rules inevitably affect the rules of procedure. One of these rules is the "Rule of Correlation of Permission with its Components". The question is how this substantive rule affects the proceedings in civil matters. Using the legal and jurisprudential analysis, this study investigates the effect of this rule on the three issues of claim determination, the realization of the validity of the sealed matter, and the jurisdiction of the court. The result of the study on claim determination is that under the implicit claim theory, the court must, based on the principle of correspondence, consider both the claim and its components. The result of the study on validity of the sealed matter is that acceptance of the inclusion of this validity in relation to the justifying causes of the sentence is like its spoken ones. In the case of inherent jurisdiction, it is concluded that the family court has jurisdiction not only over family matters but also over the components and consequences of those matters, thereby providing a strategy for achieving the goals of Article 10 of the Constitution, namely protection of family sanctity and stability of family relationships.

Discovery is a civil procedure subject that deserves study both within domain of domestic laws and internationally. Under the Iranian law, Articles 206 to 213 of Courts of General Jurisdiction and Revolutionary Courts Code of Civil Procedure are on the subject of discovery. However, Iranian courts hardly apply them, according to judicial precedents. Indeed, more often than not resort to discovery affects the case negatively, as it is considered by the court as an intrigue to prolong proceedings. Application of discovery mechanism in French, Swiss, British and American laws is both more common, and positively considered. Furthermore, resort to it in international claims particularly in international arbitrations has established a special precedent. As a prominent example of application of discovery in international proceedings, we may refer to the use thereof by Iran- US Claims Tribunal in several cases, particularly in B1 (the so-called FMS) case, which is illustrative of the practical evolution that it has undergone under this procedure and its distinction from the application thereof in comparative law.

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

Article 310 of the Iranian civil procedure code explicitly refers to the “interim order” and provides “in cases which need urgent decision making, the court can issue an interim order on the request of the beneficiary person.” So, it seems that the article prescribes interim order in urgent cases in addition to the urgency, which the court realize it, essentially the beneficiary person should deposit some money as likely damages. In criminal procedure code, the legislator does not explicitly refer to interim order. But, in some other laws including in note 1 of article 690 Islamic Penal Code 1996 somehow refers to the urgency and provides that “the judicial authority, by writing a minute will issue an order of stopping the operations of the trespasser till the issue of a final judgment.” The question is that whether in criminal matters, concerning the crime as public claim, the judge can issue an interim order? Whether the subject of the note can be considered as an example of interim order? Whether the legislator has basically considered interim order in criminal matters? If there is a possibility of issuing the interim order then what are the conditions for issuing it? What are the competent authorities to issue such an order? What are the similarities and differences between the interim order in civil procedure and criminal procedure? This article considering the hypothesis that in criminal cases the legislator has paid attention to urgent cases and there are differences and also similarities between interim orders in criminal and civil cases, explains the various aspects of the interim order in criminal matters and responds to these questions.

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.

One of the common principles in the legal system of procedure, whether administrative or judicial (civil or criminal) in the sphere of domestic and international law, is the principle of good faith. Through this principle, hearing becomes somhow ethical. This feature has a special place in administrative proceedings, one of which is a general government. The concept of good faith is indeterminate, complex, and twofold, and in determining good faith, there is also a multiplicity of criterion. In each of the criterion, the judge plays a pivotal role in the evaluation of good faith. The criterions for diagnosis are based on two basic psychological and behavioral standards. Good faith has three important duties, corrective and Supplementation. In legislation, as well as in the case law, can be avoided by deception, fraud, collusion and ...of participants in the proceedings, compensating for the vacuum of silence, conflict and ambiguity in the laws, and added to their satisfaction. Without regard to this rule, the procedural defects will increase, and the important function of the procedure, ensuring substantive, will be to endanger.

There are two rules regarding the party of procedure to whom the recovery of costs and fees of civil procedure should be imposed: the “American rule” which states that every side has to bear its own cost and fee in civil procedure, and the “English rule” according to which the loser party has to pay the prevailing party. The latter is preferred because of its access to reasonable justice, the right of litigation and the rights and duties rising from it. Compensation of attorney’s fee to the extent of attempts made by the attorney of the prevailing party, which is common in places like Scotland, has more compatibility with the justice and existing realities. The Iranian civil procedure code has adopted a separate and borderline state of both rules by accepting the "causation rule" and "negligence" as the basis. The obligations and conditions of the Iranian civil procedure code are designed so strictly that not only the attorney’s fee but also the costs and fees of the prevailing party are impossible to be reimbursed.