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

In the "Medical Council of Islamic Republic of Iran Act" 2004, there are a Quasi-Judicial tribunal (Guild Court) for medical professional and disciplinary violations, including three-stages trial: the primary disciplinary board, appeals board, and then the supreme board. Although Article 40 of this Act, declared that Supreme Board’s decisions are final judgment, the supplementary note of article 40 in 2005 declares that such final decisions are "Appealable in the Court of Appeals". In the interpretation of this note, a difference was occurred amongst some appeal courts; based on whether the jurisdiction of the appeals court in proceedings, is only "supervisory procedural on law" or is "substantive" (=on the merits). Unification of Judgments Decision number 797 from the Supreme Court’s General Board, held that the word of "Appealable" in the note, has used in its ordinary meaning, and therefore is subjected to general rules in Procedure Act. As a result, the court of appeals considered inherit jurisdiction to substantive proceedings. But considering that: 1. Quasi-Judicial nature of the medical council's disciplinary boards, into the court of appeals status and position; 2. The disciplinary board's specialized jurisdiction to guild matters; 3. The terminological concept of “Appeal” in reviewing non-final orders; 4. Judicial custom and principles of procedure predicates that proceedings in "Third Tribunal" generally is restricted to procedural supervision "on law"; 5. Futility in four-stage substantive trial in guild matters; 6. And finally, justifiability of procedural supervision on-law in the appeals court; It seems that attributing regulatory and supervisory position to court of appeals is more consistent with the principles of procedure and judicial customs, and practical considerations. This article intends to justifying the latter interpretation based on the descriptive and analytical methods and using documentary sources. Main arguments are based on deduction and induction, and referring to principles of procedure.

For a long time, the realization of justice has been the most important Objective of governments, and the most fundamental element of achieving this goal is easy access for people to an efficient judicial system; The requirement to achieve this is to deal with lawsuits within a conventional deadline. However, the problem is that several factors have affected the functioning of judicial systems and the existence of some inadequacies has caused the failure of impartial proceedings and the Appearance of a problem known as delayed proceedings. This research aims to identify the factors affecting this problem and provide a solution to solve it by studying the issue of judicial delay proceedings. The results indicate that the aforementioned problem arises from various causes such as the scientific and functional weaknesses persons related to the proceedings and the inefficiency of formal and substantive laws, and adopting measures in these fields can help solve the problem.

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.

The importance of paying attention to the principles of proceedings and the need to comply with them requires that the arbitration rules and regulations, while explaining these principles, also provide for the guarantee of their non-compliance. The purpose of this article is to investigate the guarantee of non-compliance with the principles of procedure in arbitration in Iranian jurisprudence and law and English law.
The method of the present article is analytical description. Materials and data are also qualitative and data collection was used in collecting materials and data.
Ethical Considerations: In this article, the originality of the texts, honesty and trustworthiness are observed.
In the arbitration system of Iran, especially the international commercial arbitration law, attention has been paid to the principles of proceedings. However, due to generalization, there are gaps and ambiguities regarding the status and guarantee of non-compliance with arbitration principles. And the arbitration system of this country, considering the most minor issues, has faced non-observance of procedural principles with the guarantee of effective and efficient implementation.
Iran's commercial arbitration law is the first experience of a modern law in line with internationally accepted standards. With the approval of the law, the freedom and discretion of the parties and arbitrators have increased considerably and judicial intervention has decreased.

Considering Article 18 of the Law on Establishment of Public Courts and Revolution and Article 477 of the Criminal Procedure Law, the legislator has planned an extraordinary method called resumption of proceedings through the head of the judiciary. Although this method can have advantages in terms of preventing the survival and implementation of incorrect and illegal decisions and verdicts, it faces many ambiguities and criticisms. The principles governing the proceedings in Iran, such as the principle of correspondence and the two-stage principle of substantive proceedings, remain intact in this procedure, the rule of the validity of the adjudicated case upon or “ res judicata” and the inherent difference between the ruling and the order and several ambiguities remain open in this regard.In addition, the analysis and review of the independence and impartiality of the Supreme Court and its relationship with the Lower courts and the head of the judiciary can be considered in explaining the criticisms received, which should be reviewed in this type of retrial. This article, with emphasis on judicial procedure, examines and criticizes the retrial of Article 477 of the Civil Procedure Code from the perspective of the principles of civil procedure and presents the necessary solutions for the legal system of our country.

 Laws of procedure are full of templates and forms through which the will necessarily emerges.  "Formalities" are considered as one of the most important forms. Sometimes, the proceedings must be carried out with special arrangements and rituals that the legislator has determined, and these special arrangements have turned "formalities" into one of the important principles and characteristics of proceedings. The stubbornness of the ritual rules and their subjectivity have made it difficult to understand the nature of the formalities. With such a bad reputation, these formalities lose their attraction to be used and studied. For this reason nowadays, judicial systems  tend to reduce formalities and specify a minimum of them for proceedings. However, the present article tries to examine the formalities and understand their meaning through functional analysis. The most prominent and important theory in contemporary sociology is "functionalism" or the attitude of authenticity of function.  This analysis focuses on efficiency and function. One of the important principles raised in the interpretation of formal rules is the interpretation of these rules based on efficiency as well as goal-oriented interpretation. Paying attention to function and purpose has been accepted as a basis in the legislation and implementation of formal rules. At least in the civil code, there are cases where the legislator specified the function and purpose of the regulations. Article 155 of the Civil Code for example, has mentioned the function and purpose of providing evidence as follows: "Providing evidence is to preserve it...". The functions and purposes of other judicial institutions are not authorized and should be analyzed with inferential tools. In ascertaining and inferring the functions and goals, it should be noted that a rule may have several functions and goals. Although the function of communication is to inform the audience, some contents in the judicial document have a separate goal, which cannot be achieved by simply informing the audience. For this reason, by achieving a function of a rule, the work cannot be considered finished, and perhaps this is why a group believes that the search for the function and purpose of the rules should be done individually in each case and situation. what is the function of formalities? What purpose and function the legislator expect from this institution by determining them? The study hypothesizes that formalities cannot affect the main functions of an institution. A rule, the absence of which disrupts or makes incomplete the function of the relevant institution, is not a formality.

The distinction between procedural legal principles and procedural rules and techniques is one of the famous arguments in Iranian law. The argument may be astonishing for lawyers of different background. It comes from some statutory provisions authorizing the court to ignore the procedural rules in reviewing the case but at the same time to comply strictly with the procedural principles. In this essay, after introducing of the concepts of both rules and principles of procedural law, the idea of distinction between them is examined in terms of possibility or otherwise feasibility of simultaneous withdrawal of rules and compliance with principles.

The judgment of the Branch 265 of the Tehran General Civil Court deserves to be praised due to its attention to the grounds for annulment of arbitration award not explicitly mentioned in the law.This judgment is accurate and correct where it considers protection of the fundamental principles of civil procedure in arbitration to be mandatory and where it points out the need for the arbitrator's award to be justifiable and well-argued and considers non-compliance as grounds to annul the arbitrator's award, and the fact that these matters are among the rights of the people involved in arbitration, ignoring them is against the regulations that are the source of the rights of the people and therefore the right that the legislator has recognized for the people is neglected and this is in accordance with Article 489 (1) of the Civil Procedure Code.So, the honorable judge has followed the right path both in finding the relevant arguments and in adapting them to the law. However, from the author's point of view, where the arbitrator has twice rendered the award, the said judge who has considered it inconsistent with the doctrine of functus officio, extending the aforementioned doctrine to arbitration without its having been explicitly stated in the law, has not taken the right path. The doctrine of functus officio, as it is applied in court proceedings, does not apply to arbitration.Moreover, since arbitration is based on the request of both parties it is free from the restrictions that govern state court proceedings. For this reason, the parties can even reject the arbitrator's award in whole or in part by mutual agreement. Comparing judicial proceedings to arbitration and extending its provisions to the latter, specially without the clarification of the legislator is a dubious position and from the author’s perspective, unjustifiable.

In trial, there are governing principles that sometimes seek to create balance in the mutual roles of the judge and the parties in the trial, and sometimes seek to manage the parties’ roles in the initiation and conducting the trial, and sometimes include the trial environment in line with ensuring the rights of defense and defense freedom and openness of verdict of the trial. The principle of private initiative, which expresses the right of the parties to start and end the proceedings is one of the rights of the litigants, and it is also one of the duties of the judge to observe. Accordingly, the court must deal with the plaintiff’s claim, even if it has changed, within the framework of legal conditions, so that this principle governing the civil procedure is not violated and justice is executed and hostility is settled. The change of claim, contrary to the supposition that has emerged from the decision of Branch 10 of the Supreme Court should not be confused with the unfulfillment of the claim and the indecisiveness of the lawsuit, which have different effects, judgments and performance guarantee. In this writing, it should be also checked whether the performance guarantee of the indecisiveness of the lawsuit is to get explanation from the plaintiff or its lawyer.

Background and The relationship between litigants and judges is one of the basic issues in every legal system; The purpose of the present research is to investigate the interaction of litigants and judges in the legal system of Iran, France, England and the transnational civil procedure law. This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.Ethical considerations: In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed. The parties to a lawsuit and the judge move in a parallel cycle to advance the proceedings. If contrary to the traditional rules that assign an independent role to the parties and the judge, if it moves towards changing the approach to the process of proceedings and establishes a kind of bilateral cooperation and interaction between the judge and the litigants, it will be better to achieve the goals of civil proceedings and above all Justice was achieved. The interaction of litigants and judges in the transnational civil procedure and the laws of some progressive countries such as France and England have been explicitly mentioned; In Iranian law, it is possible to implicitly consider cases compatible with the theory of cooperation between the judge and litigants; As a result, in order to identify the interaction between the litigants and the judge, amendments can be applied in the Civil Procedure Law of Iran.

The fundamental rights of citizens have to receive proper guarantee. The sovereign bodies must pay full respect to these rights. To make sure these essentials of civil society, one may claim that regard has to be had to establishment of a mechanism of due process. Due process here is to be read as a comprehensive system to confer a reliable assurance to the society members of being respected as to their fundamental rights. To this end, the desirable due process has to have some basic characteristics. In other words, the main features of due process are linked to the concept of "citizens' procedural rights" as the counterpart of "citizens' substantive rights". In this article, I have tried to introduce the essential features of due process to the extent that are compatible with any legal system regardless of structural and historical background. The main aim is to introduce due process as a proper mechanism of access to justice. Let us think for a while about 'justice as procedure' beside the concept of 'justice as substance'.

Transforming the traditional procedure into an electronic procedure with the idea of ​​material formalization of the litigation and its procedure means the elimination of material and paper tools and equipment in the procedure, which is directly due to the acceptance of information and communication technology in the procedure and its procedure. The influence of technology in various areas of the litigation process, as an inevitable thing, leads the litigation process towards materialization by removing paper, changing the concept of time and place from it, and as a result providing faster, easier and more reliable services. Despite the widespread benefits of the influence of these technologies in the judiciary, the implementation of this method of exchanging information and communication in the judiciary must be done in accordance with certain principles and adherence to them; The right of the parties to access the paper copy and the principle of the ability to deviate from the method of electronic information exchange and the principle of observing the defense rights of the parties. Each of this rights and principles assists the administration of fair trial which is affected by the elimination of material and paper tools and always bringing an apportunaty for court to control the prerequisites of e-justice; this control increase actually the power of court but finally results to due process and good enforcing of procedure.According to the authors, the world of litigation does not change with the advent of information and communication technology.

The administration of justice is the ultimate goal of any trial, and a fair trial is one of the most important indicators for measuring the social and judicial development of any society. The principle of impartiality of the judge is one of the important principles of the trial, especially civil proceedings. The principle of the impartiality of the judge means that, firstly, the judges must perform their duties without any political, legal, religious or other bias, and secondly, the judicial process must be reasoned, documented and within the framework of the applicable laws. This principle has philosophical principles such as guaranteeing and securing the natural rights of individuals and guaranteeing the sovereignty of their will; And socially guarantees the credibility of justice and order and security in society. The criterion for evaluating the principle of impartiality of the judge is the subjective-objective criterion. This principle interacts with other principles of procedure such as the principle of independence and proportionality, etc. in order to achieve a fair trial. The rules related to the formation of courts in French law, including the rules related to the principle of independence, the principle of neutrality, the principle of correspondence, etc., are such that if they are strictly observed, the principle of impartiality of the judge will be observed. In the following article, we examine the relationship between the principle of impartiality of a judge and some principles of civil procedure in the French legal system.

One of the barriers to effective execution of the sentence is the ease of evading the conviction by proving bankruptcy and debt split. A conviction is a means by which the convicted person can use it in a positive and almost easy manner to prevent an immediate execution of the sentence, and often the truth of the person's financial situation remains hidden. Predicting the widespread possibility of proof of wrongdoing causes abuse and thereby impedes the execution of the sentence. Any lawsuit requires rules that are formal and substantive, but laws are subject to legal and judicial interpretations to address ambiguities and issues after they become effective. Issues such as whether the lawsuit is valid? What types of financial convictions can be filed? What is the Guarantee of Failure to Submit a Property Statement or a Testimony Attachment? And is it possible that all the positive evidence can be substantiated in proof of a claim of wrongdoing? In this article we have the opportunity to review it.

The various advances of human beings and  specialization have given rise to new realms of human activity. It has created in society and therefore has necessitated the emergence of professional systems. In line with the principle of the rule of law, each of these systems is subject to specific professional regulations, which, on the one hand, express the current trends of that profession and, on the other hand, deal with possible violations by members of the profession and their performance guarantees. The investigation of violations and the determination of the guarantees of the cases are carried out by quasi-judicial authorities, whose performance is important from the perspective of observing the important measure of fair trial. This descriptive-analytical research seeks to examine the principles of the rules of substantive measure of fair trial in the regulations of Iranian professional systems. Fair trial is one of the most important legal terms that has many practical implications for protecting the fundamental rights of both parties to the proceedings and to the community. The right to choose a lawyer, the right to remain silent, the right to defend oneself, etc., are the manifestations of a fair trial that must be exercised at various stages of the proceedings. The principle of innocence, the principle of legality of crime and punishment, and the prohibition of double punishment are some of the most important principles of the substantive rules of fair trial. The study found that under some professional regulations, fair trial principles were not explicitly accepted, and this shortcoming should be considered in future reviews. Until then, quasi-judicial authorities, which, in accordance with the regulations of the professional systems, are committed to the commission of a violation and guarantee its enforcement, must be diligent in enforcing the substantive rules of fair trial.

Abstract In the current legal system, despite the fact that for many years has been found the importance of procedure of proceedings to be in the strict sense of the law; But the legislator has not yet accepted that these two types of law have the same significance. On the basis of this refusal, Violations of the substantive rights always invalidate the verdict of the court, but violations of the procedural rights invalidate the verdict of the court when they are of such importance as to invalidate the vote. But there is a question, what are these high-ranking ceremonies? can be used Various criteria to identify these principles. However, the criterion of effective criminal procedure is more consistent with the current law and the former laws, while the criterion of the basic principles of the proceedings is more in line with the objectives of the criminal procedure.Key words: Principles of procedure, procedural procedures, Principles with high degree of importance, effective criminal procedure

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.