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

The defense against plaintiff can be done in two deferent ways: denial of claim and challenging it (substantive defense) and objection to violation of procedural laws (formal or procedural defence). Each of these methods has its own nature and consequences. The subject of this paper is determination the scope of procedural defense and finding a criterion recognizing it from substantive defense. Taking it to consideration that the base of procedural defense is violation of formal rules, the criterion of recognition must be followed in the merit of these rules. Thus, the deference between procedural and substantive defense refers to the issue that whenever judge based on defense can express his opinion about substance we are facing with a substantive defense. But if the defense does not enable the judge to recognize the beneficial party, it will be a procedural defense. Lack of attention to this criterion has obscured recognition of defense methods in the legal provision, judicial procedure and doctrine.

The main subject of this paper is the analysis of nature of exceptions of article 84 of Code of Civil Procedure, based on the classification of defenses to substantive defense or formal defense. Although exceptions of article 84 of Code of Civil Procedure are accepted as formal defenses in general, but more contemplation can show that all of these exceptions don’t have the same nature. Most of the exceptions are formal rules, but they sometimes need to substantive rules and objective matters and this will not influence their nature. Some of the exceptions are substantive rules, but they are propounded in the formal law to use in the formal law.In fact this usage are introduction for performance of the formal rules. Some of them are substantive rules and as a result, defense against them is substantive defense. But article 84 of Code of Civil Procedure has the same manner with these exceptions.

Plaintiff In civil litigation from the beginning which deals with petition to the end of litigation which the judge sets out a verdict، to reach his wasted or denied right and to stabilize it، should comply with rules of proceeding and state matter of fact and matters of law and prove the claim. Therefor he must propose four issues and prove them to reach the relief sought: 1. Formal rules of procedure 2. Matter of fact 3. Evidence 4. Matter of law. The defendant defends، against the four issues mentioned، to prevent formation of proceeding and rebut the plaintiff’s claim to prevent a conviction on the subject of the claim. Generally response of defendant divides to procedural and substantive defenses. Therefore it’s necessary to analyze the scope of defenses and especially substantive defenses which are this paper’s subject. Considering the issues mentioned، different method and grounds of defense، it could be said that substantive defense which occurs after entering into merit of the litigation، consists of defense against matters of law and fact and evidences.