Private Law
Reza Shokoohizadeh; Hani Hajian
Abstract
By holding a definitive judgment, normally the trial transfers from one phase of proceedings to the next one. For example, in the case of holding the judgment of non-acceptance of action or the judgment in the merit of the case by the court of first instance, the case enters in new phase by appeal of ...
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By holding a definitive judgment, normally the trial transfers from one phase of proceedings to the next one. For example, in the case of holding the judgment of non-acceptance of action or the judgment in the merit of the case by the court of first instance, the case enters in new phase by appeal of condemned party. In these cases, the trial transfers from one phase into another one according to evaluative effect of appeal. But holding the definitive judgment does not necessarily result in transferring the trial from one phase to another one. For example, in cases where the court of first instance’s injunction, would be invalidated by the court of appeal and consequently the case return to court of first instance, it could be recognized that the holding of the definitive judgment, by the court of first instance could not result in termination of one phase of trial and opening of a new one. Consequently, the trial which is pursued after reversal of any form of injunctions is regarded as continuation of former trial. It is noteworthy that pronouncing a judgment in merit of a case doesn't necessarily results in transfer of trial from one phase to another one. In fact, by reversal of a judgment by higher courts, it reveals that trial of inferior court had not been finished and it must be continued. Controversies arise between Iranian lawyers in respect of regarding rehearing as a new phase of trial or continuity of former trial. There are many evidences that confirm latter theory, including automatic reversal of contested award after rehearing of absent party or necessity of protection of procedural rights of parties in the first session of trial. For practical reasons, the second section of this article is dedicated to effects of continuity of trial on responsibilities of courts and rights and obligations of parties. In respect of first title, one of the responsibilities of courts is observation of reasonable deadline of trial. In this regard, if trial of first instance and rehearing proceedings is considered as a unique trial, the whole time of trial would be considered as criterion of recognition of reasonable deadline by the court. Accordingly, competence of court is affected by continuity of trial. In accordance with Art. 26 of Iranian Civil Procedure Code, the competence of court is evaluated in time of statement of petition. Consequently, in case of reversal of injunction of court of first instance by the appeal court, the competence of former court is measured by time of petition, not reversal of judgment or return of petition. Similarly, the impeachment of the judge may be affected by the continuity of trial. One of the main reasons of impeachment of judge in Iranian Law is former pronouncing on the merit of the case by the judge (Art. 91 Iranian Civil Procedure Code). Consequently, if we consider the retrial of the inferior court, after the reversal of the injunction by the higher jurisdictions, a new trial, the former proceeding may impede the judge from later hearing of the case. The continuity of proceeding affects the responsibility of court to form new session and to pronounce new judgment on the matter. If we consider rehearing as a new phase of trial, the judge must pronounce a new judgment and could not only uphold the former judgment. Additionally, the rights and responsibilities of parties may be affected by continuity of proceedings. In cases where the statement of petition is limited to a deadline, the continuity of proceeding affects the validity of petition. If we consider the trial of inferior court, after reversal of its judgment by higher court, as a new trial, the time of statement of new petition may consider as the criterion of acceptance of petition. The continuity of proceedings affects mainly the rights and obligations of parties in the first session of proceedings. In the case of continuity of an unique trial, reopening of a case in the same court, don't result in revitalizing the rights and obligations of the parties in the first session of the trial, because of fact that first session had been formed before the reversal of judgment. In contrary, reopening of a case in same court, in different phases does cause the revitalizing the rights and obligations of the parties in the first session of this trial.
Reza Shokoohizadeh
Abstract
Interest is one of the conditions of bring an action in court. This condition is not limited to first instqnce but is also necessary in appeal. But the question that which party holds the right of appeal is not an easy one to answer. Para. a of Art. 335 Civil Procedure Act grants the appeal right to ...
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Interest is one of the conditions of bring an action in court. This condition is not limited to first instqnce but is also necessary in appeal. But the question that which party holds the right of appeal is not an easy one to answer. Para. a of Art. 335 Civil Procedure Act grants the appeal right to all parties of first instance. But the appealing of the winner party is not in accordance with the principles of law of civil procedure. In French Law, the Succombance Principle determines in which cases the parties could appeal the review of the judgment of first court. There are presumptions that specify the cases of appeal, condemnation in logic of the judgment and condemnation to compensation of costs of proceedings. But these presumptions are not inviolable. Consequently, it is necessary to study the application of succombance rule in deferent cases. In this regard, the application of succombance rule in respect of court judgment, parties and subject of the case would be studied in this Article. The research of French lawyers would be one of the sources of finding the solutions of cases of appeals in Iranian Law.
Reza Shokoohizadeh; Asghar Arabiyan
Abstract
Taking into account the fact that in Iranian and French law, formal defects of petition can be recoverable; the appellant is interested in regarding the cause of nullity as formal one. Conversely, the defendant is interested in considering the cause of nullity as non-formal to render the reject of petition, ...
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Taking into account the fact that in Iranian and French law, formal defects of petition can be recoverable; the appellant is interested in regarding the cause of nullity as formal one. Conversely, the defendant is interested in considering the cause of nullity as non-formal to render the reject of petition, immediately by the court. Tendency of jurisprudence toward each of these conflicting interests may disorder the balance of Civil Procedure. But hesitancy of jurisprudence in determining the cases of formal nullity is more dangerous than excessive resort to each solution. This hesitancy resulted in non-predictability of the cases in Iranian Jurisprudence. Reject of appeal by the court, without possibility of correction of defects, encourage the debtor to refuse from the compromise with creditor. This Article is an attempt to distinction of formal defects of petition from substantive defects and cases of non-acceptance of litigation. On the other hand, in each case, some suggestions have been rendered. But the fist aim of this Article is to clarify the divergent tendencies in Iranian Jurisprudence in respect of the subject matter of this Article.
