Document Type : Research Paper
Author
Assistant professor at Law and political faculty. Allameh Tabataba’I University. Tehran
Abstract
Articles 18, 142, and 275 of the Civil Procedure Law are composed in such a way that the lawsuit and the defense are separated. For this reason, the question is raised whether lawsuit and defense are two separate concepts or whether similar concepts are called lawsuit or defense depending on which side of the lawsuit (petitioner or defendant) is raised. This question has occupied the minds of lawyers and judges and it has been discussed in the opinions of the courts and the judicial meetings of the justice judges. Distinguishing the defense of a lawsuit has been and still is one of the concerns of civil procedure authors. In this article, the two concepts of defense and lawsuit are studied according to the illustrative cases mentioned in Article 18 and 142 of the Civil Procedure Law and an attempt is made to explain these two concepts. In this regard and considering that these two concepts are better discussed in jurisprudence books, first these concepts have been studied in jurisprudence and then in French law, and finally, according to the judicial procedure, the criteria of recognition and distinction have been tried. The claim must be determined from the defense.
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