نوع مقاله : مقاله پژوهشی
نویسنده
استادیار، گروه حقوق، دانشکدة ادبیات و علوم انسانی دانشگاه گیلان، رشت، ایران. رایانامه
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسنده [English]
Dividing the actions into rem and personam is a well-known division among civil procedure professors. This division has a close connection with the division of property rights into right in rem and right in personam. The present article, with the descriptive-analytical method and critical approach, seeks to answer the question of whether the division of actions into rem and personam in civil proceedings is consistent with Iran's Civil Code. Is it possible to present a new division based on local law in this regard? What are the effects of the accepted division in local law in civil proceedings? Despite the reputation of dividing actions into rem and personam, it can be seen as having problems from different aspects. For example, this division is subject to many criticisms for its origin, which is the Roman-Germanic legal system. Also, this division has not been mentioned in the Civil Procedure Code of Iran and the Civil Code of Iran, and it has entered the writings of domestic jurists only through a comparative study. In addition, there is a native division in Islamic law, which is preferable to the above division in many ways. The writer hypothesizes that according to the division of rules into imperative and positive, and in continuation of that, the classification of legal relations into "ownership", "right" and "imperative", the division of actions into civil proceedings should be organized. Various opinions have been expressed by jurists regarding these concepts, and differences of opinion can be seen in the examples. For example, some consider the right under the ownership, some consider the ownership under the right, some consider the right under the imperative, and some consider the opposite. Despite these expressions of the Civil Code, it indicates that the legislator has followed the opinion of those jurists who consider these concepts to be different from each other. For example, Article 29 of the Civil Code, which deals with the relationship between a person and property, clearly distinguishes between ownership and rights. "ownership" is the relationship between a person and property, and it brings the complete dominion of the owner over the property. The subject of ownership also includes interest and debt. This is even though "right" is the relationship between a person and property and the relationship between a person and a person. Since the right is the relationship between a person and property, it differs from ownership in that the domain of the owner of the right is not complete and is weaker compared to ownership. In cases where the right is a relationship between two persons, the right holder; demands the right or right in personam and for the other party; An obligation is created. As a result of "imperative", a relationship is created between two persons; However, in these cases, the plaintiff is not even considered to have the demand right or right in personam. For this purpose, action can be divided into "action of ownership", "action of right", and "action of imperative" in a category consistent with civil law. Debt claims and seller's demand for delivery are examples of action of ownership. The lawsuit of the right of benefit or the claim of the affirmative condition are examples of the action of right, and the claim of relative maintenance can also be considered as an example of the action of imperative. This division is the source of extensive and detailed effects. Ignoring the differences between them has resulted in an imprecise design of the contents. The effect of this importance is evident, for example, lawsuits requiring the delivery of immovable property, depending on whether it is based on ownership or the right of demanding, are under the jurisdiction of the court where the immovable property is located and the court of the defendant's domicile, respectively. Also, the claim for delay damages and the type of damage is dependent on the identification of the claimant's position. The type of damage that can be imagined according to these relationships is different from each other in such a way that the identification of its compensability depends on paying attention to this. This division has a clear effect, among other things, concerning identifying the effect of the death of the parties to the lawsuit, the lack of capacity of the defendant, and the inclusion of the rules of insolvency and bankruptcy.
کلیدواژهها [English]
https://lawresearchmagazine.sbu.ac.ir/article_80627.html (28 مرداد 1403)
https://lawresearchmagazine.sbu.ac.ir/article_56691.html (21 خرداد 1403)
https://law.mofidu.ac.ir/article_27917.html (28 مرداد 1403)
https://hoquq.iict.ac.ir/article_18227.html (21 خرداد 1403)
http://ensani.ir/file/download/article/1544619962-10171-1-1.pdf (21 خرداد 1403)
https://feqh.semnan.ac.ir/article_1871.html (21 خرداد 1403)
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