نوع مقاله : مقاله پژوهشی

نویسندگان

• امیرپویا رشیدی ¹
• سام محمدی ²
• حمید ابهری ²

¹ دانشجوی دورۀ دکتری حقوق خصوصی دانشکدۀ حقوق و علوم سیاسی دانشگاه مازندران، مازندران، ایران

² استاد گروه حقوق خصوصی دانشکدۀ حقوق و علوم سیاسی دانشگاه مازندران، مازندران، ایران

چکیده

 
اعتماد مشروع یکی ازمباحث مهم اما، مغفول دانش حقوق است. مفهومی از آن در حوزۀ حقوق عمومی شناخته شده و موردنظر قرار گرفته است اما در قلمرو حقوق خصوصی به محاق رفته و چندان مورد توجه نیست. درصورتی‌که پایۀ بسیاری از ساختارهای حقوقی بر بر این اصل بنا شده است. ازجمله موارد قابل بررسی، محلّ تلاقی انتظار مشروع ناشی از اعتماد با دیگر موازین حقوقی در اعادۀ عملیات اجرایی است. این فرایند، گاه چنان ناعادلانه می‌نمایاند که اندیشمندان را بر آن داشته تا با تأسیساتی مانند تلف حکمی از گسترش ناروای قلمرو اعادۀ عملیات اجرایی بر حقوق مکتسبه اشخاص بی‌گناه بکاهند و به این وسیله یاریگر داد باشند. برخی با اعتماد به روند قانونی عملیات اجرای احکام مدنی هزینه­هایی متحمل می‌شوند و حقوقی را کسب می‌کنند. با اعادۀ عملیات اجرایی، تعارضی میان حقوق محکوم‌علیه و این دسته از اشخاص به‌وجود می‌آید. در این نوشتار نشان داده شده است که شناخت اصول مرتبط‌با اعتماد مشروع در موضوع اعادۀ عملیات اجرایی، می‌تواند زمینه‌ساز حمایت روشمند و متقن از حقوق مکتسبه این اشخاص گردد و افزون‌بر آن، این رویکرد به صیانت از اعتبار قانون و دادگستری کمک می‌کند.

کلیدواژه‌ها

• اعادۀ عملیات اجرایی
• اعتماد مشروع
• ضمان ید
• قاعدۀ احترام مال مردم
• قاعدۀ تسلیط

موضوعات

• حقوق خصوصی

عنوان مقاله [English]

The Rule of Legitimate Confidence And Its Effect On The Restoration Of Executive Operations Of Civil Judgments

نویسندگان [English]

• amirpouya rashidi ¹
• saam mohammadi ²
• hamid abhari ²

¹ PhD student of private law, Faculty of Law and Political Science, University of Mazandaran,Mazandaran,Iran

² Professor of Private Law, Faculty of Law and Political Science, University of Mazandaran, Mazandaran, Iran

چکیده [English]

Legitimate confidence is an important legal issue that, unfortunately, has not received sufficient attention in the field of private law. Neglecting it has undesirable effects on legal relations and causes society to despair of justice. The concept of legitimate trust is well-known and considered in the field of public law, but this important legal tool has been neglected in the realm of private law and has not been given the attention it deserves, even though many legal structures are based on this foundation, and it is necessary for lawyers and writers to try and seriously investigate and explain its true position.
Legitimate confidence creates a legitimate expectation in the mind of the one who confides. An expectation that, if not met, causes society to become disillusioned with the law and legal instruments. In fact, legitimate expectation is the necessary consequence of the legitimate confidence and action in the law that arises in a person in good faith. Every person who considers herself/himself to belong to a society and hopes to receive an appropriate response from that society for this legitimate expectation. This confidence is a state that is created by reason and law. Without a doubt, failure to provide an appropriate response to the expectation resulting from legitimate confidence violates the dignity and worth of a person. However, protecting the dignity and worth of a person is one of the fundamental principles of law and ignoring it is unjustifiable. confidence is a state that arises from will, and the Rule Of Legitimate Confidence in this research refers to all issues related to confidence, such as the conditions for its realization and the effects resulting from it. Not every confidence is worthy of legislative support. A supported and so-called legitimate confidence is one that is based on a correct understanding of the message of a credible authority, such as law, judicial authorities, or custom.
"Legitimate Confidence" is not the only legal rule governing legal relationships between individuals. Other principles, especially in the area of ​​private law, govern individuals and the relationships between them. Therefore, it is necessary for lawyers to specify and explain the position of "legitimate confidence" among other legal rules.
This is a long road, and in each investigation, limited conditions and events can be assumed and the conflict of rules related to that assumption can be investigated. However, as research continues, the legal position of the rule of legitimate confidence among other rules becomes clearer. Among the issues that can be a clear and controversial place where the rule of legitimate confidence conflicts with other legal standards is the reinstatement of the enforcement of civil judgments. When a decision is issued by a reputable authority such as a court or arbitrator or arbitration institutions, the law requires everyone, especially those who are related to that decision, to accept and respect its provisions. As a result, the law requires individuals to trust the correctness, validity, and enforceability of that decision. In other words, the law requires both the validity of the decisions of judicial and arbitral authorities and their implementation, meaning that the law requires people to trust the performance of that authority. People trust, for example, by recognizing the validity of a court or arbitrator's decision as a financial owner or as having a legal status. Based on this state and the belief they have acquired, they may make deals with those persons who are affected by the decision in question or create a new legal relationship, or those persons themselves may take actions based on the decision that has been issued and changed their legal status that they would not have taken if it were not for that decision.
So far, there is no reason to rely on the rule of legitimate confidence, but if that ruling is overturned and the circumstances are provided to restore the executive operations to the previous status, it is difficult to create unwanted changes in the status of those who have trusted the performance of the court or arbitrator, and especially the units that implement their rulings. On the one hand, if we change the situation of the people affected by the execution of the court or arbitrator's decision without paying attention to this confidence and its effects, we have violated the previous ruling of the law that people should trust the performance of authorities such as the court and arbitrator, and in a way, we have rendered the law invalid And on the other hand, if we leave the situation as it is, we will have rendered the change in that decision, which was previously valid and now is recognized as invalid, ineffective. In this case, a conflict arises between the place of application of the principle of domination(meaning the rule that allows the owner to make any kind of occupation of his property that he wants) and respect for property and people's rights (meaning the rule that stipulates that property and people's rights remain immune from any kind of encroachment) on the one hand, and legitimate confidence on the other.
The process of restoring the execution of civil judgments sometimes appears so unfair that it has prompted scholars to use facilities such as the assumed wasted to reduce the undue expansion of the scope of restoring the executive operations on the acquired rights of innocent persons and thus help justice. However, many do not care about the legitimate confidence and the expectations that result from it and will go to any cost to restore the status of the persons affected by the judgment. That is, they believe that the money that was the subject of the overruled decision should be taken from a third party in good faith and given to the former defeated party, or they believe that the legal status of the overruled decision should be changed in favor of the former defeated. The reality is that some people, trusting in the legal process of civil enforcement, incur expenses and obtain rights that it is not fair to ignore. In fact, with the reinstatement of enforcement operations, a conflict of rights arises between the former defeated party and this category of persons.
This article showed that familiarity with legitimate confidence in the discussion of restoring executive operations can lead to:
A: The acquired rights of individuals who have trusted in the credibility of the judicial authorities that execute court and arbitrator decisions should be systematically and rigorously protected.
B: The status and scope of the legal rules relevant to the discussion, and in particular their relationship to the rule of legitimate confidence, should be clarified, and the rules should be applied in a manner that does not undermine the legitimate expectations of the people.
P: A means to protect the credibility of the law and justice should be made available to lawyers.
 

کلیدواژه‌ها [English]

• The Rule of Legitimate Confidence
• Restoration Of Executive Operations
• The Rule Of Respect For People's Property
• The Dominance Rule
• Liability Of Unlawful Possession