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

Based on the propounded consensus, the authority of determining a judge has been given to the claimant, but on the other hand, in addition to not implementing this view in the current judicial system, some other jurists have given this importance authority to the ruler and the government. Now, the question that the current study has addressed is the analysis of the issue of the authority of determining a judge, in the sense that as a Ḥukm Awwalī and Thānawī (primary and secondary ruling) and also in the current judicial system, Is the claimant responsible for determining the judge or the government? In a research that was carried out by a library and analytical method, the widely known viewpoint has been explained along with three reasons. But due to the deficiency in these reasons and the existence of stronger reasons against it such as verses of the Holy Qurʼān and traditions, the Ḥukm Awwalī and Thānawī has been given the responsibility of the authority of determining a judge to the government, while various justifications have also been explained for the opinion of those who claim this authority to the claimant.

Based on the propounded consensus, the authority of determining a judge has been given to the claimant, but on the other hand, in addition to not implementing this view in the current judicial system, some other jurists have given this importance authority to the ruler and the government. Now, the question that the current study has addressed is the analysis of the issue of the authority of determining a judge, in the sense that as a Ḥukm Awwalī and Thānawī (primary and secondary ruling) and also in the current judicial system, Is the claimant responsible for determining the judge or the government? In a research that was carried out by a library and analytical method, the widely known viewpoint has been explained along with three reasons. But due to the deficiency in these reasons and the existence of stronger reasons against it such as verses of the Holy Qurʼān and traditions, the Ḥukm Awwalī and Thānawī has been given the responsibility of the authority of determining a judge to the government, while various justifications have also been explained for the opinion of those who claim this authority to the claimant.

The rule of imposition of reason in jurisprudence generally and briefly has a history, and its acceptance and validity can be seen in the jurisprudence rule of Allah Ali al-Mada'i. The traces of this rule in the actions of the legislator can be seen in Article 1257 of the Civil Code and Article 197 of the Code of Civil Procedure. In this research, an attempt has been made to define the framework of the rule of the place of discussion through the identification, counting, investigation and assignment of the involved components in a logical manner and working on love, the rule of bearing the burden of proving the reason for the effect in the hands of general benefits (the general rules of the rule that in all contempt rules, it has general (rules related to the type and characteristics of the lawsuit) and partial rules (rules related to the type of reason to be expressed), which requires an accurate and comprehensive understanding of the rule to pay attention to all three levels of the mentioned rules. . Among the sensitive and complicated points, we can mention the standard of the claimant's recognition of the negative and the level necessary to provide evidence and reach the level of proof. As long as the above points are paid attention to as independent institutions in the judicial field, the problem will remain on its own. The solution to the problem lies in sociology. The set of the above points has been examined and carefully considered in order to explain the concept of the rule's enamel, i.e. the burden of proof.

The basic principle is that the claimant must prove his claim.  Despite this, in Islamic jurisprudence, the amīn’s (depositary) claim is accepted in cases without argument. Assuming the validity of the jurisprudential point of view and its implementation in law, we are discussing the process of dealing with the depositary’s claim. In cases where the depositary is in the position of the defendant and his answer is just to reject the claim of the plaintiff such as a loss claim against a lawsuit requiring the rejection of the entrusted property, or the depositary’s response is to reject the demand, such as the depositor’s claim to reject the property, his response is a defence type in a special sense. In cases where the claim of the depositary is such that in addition to rejecting the claim, he wants the court to make a decision about another person. In this case, with the combination of the conditions of a counterclaim, the depositary must raise a counterclaim, for example, when the depositary makes a claim for loss of property and maintenance costs against the claim of the obligation to reject the property.

The addition of the clause of "by oath of defendant" in Article 197 C.P.C. (Approved in 1379) raised questions, doubts, and discussions about the possibility or impossibility of issuing a sentence of acquittance of defendant without his oath, in cases of failure to provide evidence and not requesting the oath by the claimant, as well as the power or omission of the judge to swear defendant without asking. The analysis of this article requires the study of the subject in jurisprudence and the study of the viewpoint of the jurists. In jurisprudence, the issuance of verdict in favor of the defendant was not permitted solely on the basis of practical principles, including the principle of innocence, in cases of failure to provide evidence or requesting the oath by the claimant, and also the swearing of the defendant without the applicant's request. In the analysis of Article 197 C.P.C. it is necessary to provide an interpretation that does not contradict this article with jurisprudence and what is known as certain among the jurists.

In jurisprudence and law, this rule is stipulated that the plaintiff in a lawsuit against a deceased person, in addition to proving the right, is required to oath on the survival of the right. The basis of this ruling needs to be analyzed, and its scope can be discussed in several aspects; including, whether it includes objective litigation and cases of proving the right with any proof, or whether it is dedicated to claiming debt and proving debt with witness, and whether this rule is inclusive to litigation over absentee, minor and insane, and Claimant's heirs claim and their parent or executor or assign it to the lawsuit against the deceased by plaintiff , and does it apply to the case of doubt in the survival of the right, or does it also include the case of the lack of doubt in the survival of the right? In these fields, various and different views have been presented in jurisprudence and law. The legislator's statement also has inconsistencies. From a legal point of view, the rule of the necessity of taking an oath in a lawsuit against the deceased includes objective lawsuits and can be extended to lawsuits against absentee, minor and insane, and it also includes the Claimant's heirs claim against the deceased, and condition of the necessity of such an oath is doubting the survival of the right.

Under Iranian Civil Procedure Act, claimant, when making Action, has to determine the cause of his/her Action. While according to the paramount opinion in Shiit Jurisprudence, principally the whole Actions have to be heard even when cause of Action has not indicated. From this view point, as a rule, it is the court that is bound, at the commencement of hearing, to explore the cause of Action and on that basis, makes judicial decision. By accepting this opinion which has been applied in some court's decisions, in addition to respecting the fourth principle of Iranian Constitution, it is possible to transfer the subject of determination and achievement of cause of Action, from the section of formal conditions of petition to the section of hearing bars which naturally results in changing the decision making authority from court clerk to judge. In French law, although the phrase "cause of Action" has not been used and defined in civil procedure Act and jurist has expressed different opinions in the matter, according to that Act, claimant is obliged to indicate legal and subjective bases of Action.

In all private actions, recognition of parties to the action is of a significant importance. Purpose of this research is to recognize parties to an action for damage due to a crime and their successors. It is necessary to recognize parties who may, besides filing criminal action, file a civil action in the criminal court related to damages of a crime, since according to general principles governing Civil Procedures Law, if claimant or his/her successor is not considered as a beneficiary in the filed action, or if the action has no regard with the defendant, it would result in abatement of action, and if the claimant does not file the action in competent courts based on rules and regulations, it would result in judicial disqualification. Findings of this research indicate that generally, parties to a private action due to a crime are comprised of four groups including Personal claimant (victim of a crime who has undergone damages due to the crime); Successors of the personal claimant (including 1. Heirs of the victim, 2. Creditors, 3. Legal persons); Personal defendant (committer of the crime or his/her accomplice), Successors of the personal defendant (heirs, debtors, and persons with civil liability).

If a dispute arises between the owner and the trustee and in this case, trustee is the claimant and he does not have any reason to prove his claim, there are some controversy about acceptance or rejection of his claim. Civil Procedure Law has no specific provision in this respect. Shiite scholars in some cases like claim of waste and declaring lack of abuses and wastage accept trustee’s word. Even some of shitte scholars express a rule so-called “validation of trustee s word”. However, it seems that the popularity of absoluteness of this opinion or exemption of trustees word from bearing the burden of proof is due to prevalence of the cases which the dispute is about trustee’s duty of protection and skill to do something, and the owner claims trustee’s negligence about the duties. But in other cases that there are specific duties, like the time the trustee is a calimant or lawyer this rule is not useful and the trustee according to principle, should bring reason to prove his claim.

The importance and value of historical and cultural heritage caused protection and preservation of this heritage by criminal sanctions. This affair in our country becomes more important given the history of ancient civilization, plenty of rich cultural heritage and historical monuments. After revolution, the legislator predicted penal provisions with regarding to the constitution in order to maintain the historical and cultural heritage. Nevertheless, the Islamic Penal Code in 1996 considered these offences as forgivable. It seems that we should pay attention to social interests and philosophy of criminalization about these offences. This is necessary to consider the evolution of legislation and role of private complainant and the prosecutor in these offences. New Islamic Penal Code and new criminal procedure act are worth noting in this context. Especially new criminal procedure act with regard to the role of NGOs is considered a big step towards the development of the prosecution and the investigation into these crimes.

After considering the security for costs as a rarely considered establishment and analyzing legal points and problems concerning that security which is located among the Articles on provisional remedy, and after having a look at the security for costs against foreign claimants, present research analysis brings the security for costs in probate matters as its main subject into focus to the extent that possibility of a legal suit being hidden in a probate matter gets inferred. The Legislature’s presuming of a defendant for the probate matters and inevitably presuming of a claimant for the said matters prepares the ground for setting out newer analyses about the probate matters substance and the rights and responsibilities of the parties to those affairs. In this way, it gets clear that the law specialists in respect to the probate matters have usually adopted a diminished view in comparison to the Legislature’s one, so they have not had any or enough regard to the existent potentials in those matters. Making clear some already dark remained angles of the Civil Procedure Act and the Probate Matters Act is of the results of this analytical research.

The dower is the first financial debt which established incumbent upon the husband after the realization of marriage. The wife has the right to demand the debt from the husband and then obtain its possession. If after the request of the wife, the husband claims to be insolvent and unable to pay the debt, the legal procedure of Iranian courts is that the husband is sentenced to imprisonment so that he will prove his solvency. The present article aims to analyze in general the issue of solvency of the indebted, and then to prove that the primary imprisonment of the indebted person whose conditions are unclear - especially in the case of the husband claiming insolvency - there are no jurisprudential acceptable documents; therefore, understanding the imprisonment of the husband as unjust is closer to the truth and is more compatible with notions of caution.

Legal description is to place the different subjects and issues under the proper Legal title. To describe the claim in proper manner, the intention of the claimant should be cleared, the terms and the conditions should be crystallized and any mistakes may cause to rejection of the claim. There are some obscurities in the legal description of the claim in the law and practice in Iran's legal system.In thisarticle we will analysis the challenges and problems of the legal description of the claim in Iran's Law and practice.