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

One of the inalienable principles of civil procedure is the principle of two-stage proceedings when dealing with merits of claims. Based on this principle claims are handled in a two-level manner. Acceptance of the new claim in the appeal stage will lead to a one-stage process. Accepting a new claim at the appellate stage violates the above principle and is therefore prohibited. In French law, a change in the grounds of action at the appellate stage is not considered a new claim and is admissible if it does not alter the purpose of the first claim. In this article, considering the impact of French law on Iran's civil procedure law, first the rule of prohibition of new claims and its exceptions in French law will be examined, and then the aforementioned rule will be discussed in the light of Article 362 of the Civil Procedure Law. Article 362 of the Civil Procedure Act, contains the rule of prohibition of filing new claims and its exceptions. This article has been examined by utilizing a descriptive-analytical method based on library studies. Article 362 of the Civil Procedure Law specifies the rule of prohibiting new claims in the appeal stage and has raised exceptions to it.

Despite the significance of the possibility of producing new evidence in the phase of appeal in a proceeding, there is no explicit rule in this regard. This issue is controversial among the scholars in the field of procedural law and the judges in connection with the appellate stage of a proceeding. Most of the courts have induced from the laws and regulations which governs this issue, the fact that a judge can make reference to the new evidence in the appellate, such as new investigation, inspection of scene, or new deeds, even if those evidences have been out of the point or have been deviated or have not been considered by the court of first instance due to any reason. Such approach, from the view point of precedent in the field of appeal, has been provoked by the Iranian Law of Civil Procedure (1939) and Article 563 of French new Civil Procedure Code and it can be said that the judicial precedents in this regard have been established on the basis of the same laws. The only limitation thereof is reference to the new evidence for proving those claims which had been under consideration of the first instance court. However, such precedent is not compatible with jurisprudential (feghhi) history of appeal and the very texts of some laws. Thus the conservative approach of the courts in this regard should be taken into account In the process of the future development of legislation. By following such an approach the legislator can be pushed to revert to the previous laws and regulations concerning the appeal, taking into account some adjustments thereto for confronting the prolongation of adjudications.

A ancillary action one that occurs during the hearing of a lawsuit (the main lawsuit) and is one of the most important lawsuits in the judiciary; Because it has its own unique legal effects. Preliminary lawsuits have an exceptional and special status because according to the rule of prohibition of accepting new claims and lawsuits in the appeal stage, prohibition of interference by persons other than the parties, prohibition of litigation that was not considered in the first instance and non-acceptance of new lawsuits by the court Appeals, either by the parties or by a third party, no new claims can be filed at the appeal stage; In Iranian law; In some special situations, the legislator has initially provided for the filing of such lawsuits at this stage, among which situations such as; Violation of the authenticity of the documents expressed by the litigants, the possibility of filing a counter-suit and bringing a third party, a new direction or cause at this stage, new reasons and allegations of forgery at this stage and new claims and defense at this stage and exceptions such as third party and Named a third party in the appeal phase. In French law, the French legislature has made it possible to make a new claim in some cases, such as claims of the other party, issues arising from the entry of a third party or matters that later occurred or were discovered. In this descriptive-analytical study, an attempt has been made to examine the.....

Interest is one of the prerequisites of bringing an action to the court. This condition is not limited to first instance claims but is also necessary in appeals. But the question of which side holds the right of appeal is not easily answered. Article. 335 (a) of the Civil Procedure Code grants the appeal right to all parties of first instance. However, the appealing of the winning party is not in accordance with the principles of civil procedure code. In French Law, the succombance principle determines in which cases the parties could appeal the review of the judgment of the first courts. There are presumptions that specify the cases of appeal, condemnation in logic of the judgment and condemnation to compensation of costs of proceedings. Nevertheless, these presumptions are not inviolable. Consequently, it is necessary to study the application of succombance principle in different cases. In this regard, the application of succombance principle in respect of court judgment, parties and subject of the case would be studied in this article. The literature of French law would be one of the sources for finding the solutions of cases of appeals in Iranian Law.

Bringing the incident actions is not limited to courts of first instance but these actions could bring in appeal courts. Nevertheless, bringing these actions in appeal courts is somewhat limited. The devolutive effect of appeal involve in transferring of what is preceded by court of first instance in appeal court. On the other hand, the absolute negation of bringing the incident actions in appeal court is not acceptable. The bringing of these actions, not only recognized in Iranian Law by some legal texts such as Articles 130 and 135 of Civil Procedure Act, but also in many cases, without bringing these actions the procedure remains inefficient or incomplete. On the other hand, in some cases issuance of first instance’s judgment or the changes of circumstances of the case result in impossibility or non-sense of procedure of appeal court. These contradictive facts describe how necessary is the acceptance of incident actions in appeal courts and simultaneously, the application of legal limitations to it.