نوع مقاله : مقاله پژوهشی
نویسندگان
1 استاد آیین دادرسی مدنی و بازرگانی، حقوق خصوصی و اسلامی دانشکده حقوق و علوم سیاسی دانشگاه تهران
2 دانش‌آموختۀ کارشناسی ارشد حقوق خصوصی، دانشکدۀ حقوق و علوم سیاسی دانشگاه تهران، تهران، ایران،
چکیده
کلیدواژه‌ها
عنوان مقاله [English]
نویسندگان [English]
Introduction
In Iran’s judicial system, court documents are served in Persian. However, in international cases—such as serving Iranian court documents abroad or foreign court documents within Iran—determining the appropriate language becomes challenging due to legal silence and the lack of comprehensive judicial assistance agreements. This research examines the criteria for determining the language of service and proposes legal solutions.
Personal Criterion (Characteristics of the Recipient): The language is determined based on the recipient’s identity, profession, and actual circumstances. Advantage: High accuracy and ensures the recipient’s understanding. Disadvantage: Slow process due to diverse factors and lack of sufficient information.
Territorial Criterion (Language of the Recipient’s Country): The official language of the recipient’s country of residence is used. Advantage: Faster execution. Disadvantage: Risk of abuse, as recipients may falsely claim ignorance of the language to avoid service.
Hybrid Criterion (Combination of Personal and Territorial): Documents are translated into the official language of the recipient’s country unless there is clear evidence that the recipient understands the language of the court (Persian). Advantage: Balances speed and accuracy.
Proposed Rule: The hybrid approach should be adopted—documents must be translated into the official language of the recipient’s country unless proven otherwise. If the recipient refuses service due to language barriers, the court must verify the legitimacy of the refusal. A justified refusal (due to incomprehensible language) invalidates the service, as understanding the content is a procedural requirement. An unjustified refusal does not affect validity, and the service date remains the starting point for legal deadlines.
Translation Costs: The requesting party bears translation costs. If unpaid, Article 259 of the Civil Procedure Code applies. However, enforcing payment for translating judgments lacks a clear legal mechanism, necessitating legislative reform.
Risk of Translation Errors: Providing both the original and translated copies allows recipients to compare and correct errors, though failure to do so does not invalidate service.
Service to an Iranian Attorney: No translation is required for an Iranian attorney representing a foreign party, as non-Iranians cannot litigate in Iranian courts (except in military cases).
Initial Service without Translation: Some argue that initial service abroad may not require translation if the recipient might understand Persian or accept untranslated documents. However, this view is criticized for undermining procedural fairness.
Method
This study employs a library-based approach, analyzing legal sources and judicial precedents.
Conclusion
The lack of clear regulations on international service of process creates challenges, including potential delays and procedural abuses. Adopting the hybrid criterion ensures both efficiency and fairness. Legal reforms should address gaps, such as enforcing translation cost payments and standardizing procedures to uphold the principles of fair trial and due process. Courts must verify language proficiency in international service cases, prioritize translation when necessary, and ensure compliance with fair trial standards while minimizing procedural delays.
کلیدواژه‌ها [English]
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