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Rights and obligations of the parties at the first hearing in Iranian law and
compliance with French legal system
Mohammad Reza Mehrjoo
1-Department of M.A. private law, shahr-e-Qods branch, Islamic azad university, Tehran, Iran
Email: [email protected]
Dr. Hassan Khosravi
Supervisor
Dr. Abolfazl Ahmadzadeh
Advisor
Abstract
The first hearing is a session in which parties bring their arguments in the trial of judge's view
for the first time as claim and defense, considering the availability of legal grounds for inquiry
the cases. The first hearing has advantages for the parties that the other sessions have no this
feature. In this session, legislator has appointed rights and obligations for the parties that the
lack of exercising the rights causes the loss of them, and lack of implementing the required duties
sometimes cause squashing the proceedings and sometimes causes the withdrawal of a reason
from number of reasons for plaintiff ordefendant.One of the special commands for plaintiff in the
first session is to increase the claim and change it, attack the authenticity of documents and
present the original documents and so on. Protest against the claimed worth, proposal of
objections, proposal of counterclaim etc. are among special commands for defendant in the first
session. Therefore, the rights and obligations of the parties at the first hearing and the need for
public awareness of the rights and duties and their practical application, the important legal
effects burdened on them, motivated the author to examine this approach in detail, because all
acts of the parties manifest in the form of these rights and obligations. However, recognition of
the rights and obligations of parties at the first hearing in Iranian law, despite its advantages, is
yet viewed from a single angle, and its advantages and disadvantages will not be wellunderstood, unless the rights and duties are observed from other angles with a comparative
discussion, and we examine the strengths and weaknesses of our own law. Since the French law
is the prototype of Civil Procedure Code of Iran, it is more worthy to be compared at the top of
this article as the legal system for the comparison.
Keywords: Rights, Duties, Parties, Proposal of objections, the first hearing, Ancillary
claim.
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Chapter One: The concept of parties and the first hearing in legal system of Iran and
France
First topic: Parties
In this context, we will examine the concept of plaintiff and defendant in Iranian and French
legal system.
First Speech: Plaintiff
First clause: The concept of plaintiff in law
In civil cases, plaintiff is said to someone who offers documented claims to reasons. In addition
to petition, court to hear and verdict present in his favor. Plaintiff is subjective case of demand
which literally means seeking and asking and calling. Plaintiff or claimant is a person who
demands a right for himself and against the others from the trial;he demands the right through
submitting a petition to the court or through the arbitration (Bahrami 2006, 113).So, plaintiff is a
person who demands his ignored right from the court and is interpreted as claimant as well
(Ansari and Taheri 2009, 915).Plaintiff should be beneficiary in the raised litigation. In other
words, a person can bring a claim, if he gains benefits and profits by proving his claims (Shams
2002, 1: 316).It should also be qualified for litigation; this type of qualification is called capacity
to enjoy; so, parents patriae cannot directly bring proceedings for their own right (Vahedi2001,
102).
Second clause: The concept of plaintiff in French law
In the context of a dispute proceedings in French law, litigants are usually two categories:One is
plaintiff, i.e. a person who has filed a lawsuit and defendant who a dispute has been filed against
him.Certainly, parties can be more than two persons.For example, many plaintiffs happen against
a large number of defendants that some people participate in the hearing or are required to be
present, in addition to the main parties;and like warrant or third entry, synonymy of the term
plaintiff in French language is (demandeur) which is derived from infinitive (plaintiff) in the
sense of asking, lawsuit, petition and its subjective case means a plaintiff, applicant or someone
who lawsuit, facultative unit and requester.It seems that the idiomatic concept of plaintiff did not
to be away from its literal meaning. Becauseauthors of French law were not out from the range
of the term to express the word reminder,and plaintiff is a person who has the action or litigation
andin other words, plaintiff is a person who wants from his rival to attend before the court by
summons.
In French law, preliminary work of plaintiff is done by sending declaration, and sending a copy
thereof from any of the parties to the trial causes the activity of court and in this respect, is
fundamentally different from Iranian law. In French law, each party must have the capacity to
sue in court.In French law, each mature is not able to exercise the right to sue.In fact, matures
who are under some protection regimes, the regime limits his vindication capacity or deprives
him from having the capacity to vindication.So, plaintiff should have vindication capacity for
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lawsuit; and according to Article 117 of the new Code of Civil Procedure of France, lack of
capacity for plaintiff has the lack of executive guaranty proceedings hearing.
Second speech: Defendant
The first clause: The concept of defendant in law
Defendant or someone who a claim has been raised against him by plaintiff in courts of justice is
called defendant inlegal aspect (Ansari and Taheri 2009, 915).Defendant is past participle of
"defend" and is a person who filed a lawsuit against him and the right to claim is against
him;thus, whatever the result of claim to be, it imposes to him (Shams 2002, 2:32).So if the
proceedings does not matter to the person, the court issues the rejection of claim.Defendant of
claim should defend from himself accordance with the provisions of the Code of Civil
Procedure. For example, if he objects to evaluating and pricing claims, he should declare it until
the first session of the trial (Vahedi 2001, 13).
Second Clause: Defendant in French legal system
In French law, the term (Defendeur) is used for defendant which this means defender, advocate,
defendant, libellee, who a petition is submitted against him, and beneficiary in defending
(Katebi, Hosseingholi 1984, 113).In conjunction with the concept of defendant, it has been said
that the legal concept of defendant cannot be absolutely extracted from its defensive position at
the hearing.That is, hearing summons does not necessarily mean of being defendant in dispute,
but the concept only applies to someone who is personally involved in dispute (Dalvz 1995,
165).
Third speech: The concept of first hearing in the legal system of Iran and France
In this article, we will examine the first hearing in the legal system of Iran and France.
First clause: The first hearing in the Iranian legal system
According to the Civil Procedure Code, determining the time for hearing is necessary in all
claims. Court may held several sessions for reviewing the issue.But meanwhile, law put a
deadline to express any point during the hearing for preventing prolongation of proceedings and
establishing order in the judicial process.For example, the opportunity to express some contents
is exclusively in the first trial, so that the court will not work after this deadline.
What session is considered the first session, it might be thought at first that the first session is the
first date on which court determines after submitting petition whether session to be convened or
not andif it is convened, whether defendant finds full opportunity to respond or not. But this
impression is false.
To reject the idea, The General Assembly of the Supreme Court in insistence vote with No.
30313-3/10/1339 says:
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"The mean of first hearing is a session in which the legal grounds of lawsuit and hearing dispute
of the parties to be provided.If the mentioned session to be renewed in any way, the next session
or sessions are not considered the first session".
Legal Department of judiciary during theory No. 5015/7-10/6/1381 declares:
"The first hearing is when the time to deal with plaintiff and defendant is notified and
proceedings started and if the session to be renewed for time to deal with the parties or one of
them, it is not considered the first hearing".
Therefore, if the session of court is not convened after presenting the petition and inviting the
parties, or defendant has no the opportunity to defend or read, it will not be considered the first
session.For example, if all the time of session is spent for statements of plaintiff and defendant
cannot respond or response of defendant is prolonged and time of session to complete it is not
sufficient and remains unfinished, the next session which is convened to hear more defenses will
be the continuation of the first hearing.
Second clause: The first hearing in the French legal system
In this section, we will examine the concept of the first hearing in the French legal system and
details of this session.
A: The concept of the first hearing
In French law, a definition of the first hearing is not provided, but this does not mean that a
statement is not in law about it.Its synonym in France is (Premiere audience) which has been
stated with same name in some legal articles; for example, it was observed in Article 84 of
former French law that"It is done by agreement of the representatives in predetermined days and
hours." Andstated in the first clause this article: "If the talks come to an end during the first
hearing, it will track at the next session."And in the second paragraph of the same article stated,
"Naturally, if changes arise in the composition of the court after the start of negotiations and
before the end of it, it is essential that negotiations should be resumed for the legality of sentence
(Vincent- Sean).So, the first hearing is in fact the hearing was already explained; by indicating
the conclusion on time and with the explanation that if it is not led to end of talks in the first
session because of a reason, the next sessions will have no this title.
The result is that in any case that the case was assigned to investigating judge or to the hearing,a
day is specified after preparation of the case by mutual agreement and the hearing is concluded at
a predetermined time.This session is the first hearing in which the parties verbally deal with
defenses. As it was said,the principle is that the hearing is public and oral. Speaking on
advantages of this session to other sessions, French law is silent and only stated some rights and
duties which shall be applied in the hearing or in the first hearing.
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(B) Trend of the first hearing in France
The first hearing starts in two modes; in one case, according to the provisions of Article 7885 of
the French new Civil Procedure,the first hearing starts with the presentation of a report by the
presiding judge or the reporter judge and in other case, defenses begins without the mentioned
report.It seems that the first case occurs when the available case (j.m.e) has been investigated. In
the first hearing, any of the lawyers orally express their clients' claims.That is, based on the
general provisions of Article 440, second paragraph, first plaintiff and then defendant filed their
claims (Couchez. Gerard.op.cit.p.188).Of course in practice, the lawyers negotiate in court of
city (However, the parties directly involved in the negotiations in some cases).In this session,
plaintiff expresses his claims through lawyer and defendant verbally responds to him and then,
plaintiff can respond the claims of defendant and it will continue.
It seems that proceedings at the first hearing end with confirming the adequacy of explanations
from the judge, unless there is a need for next sessions. (If the time of proceedings is over), the
next session for proceedings are determined in this case and certainly next session will have no
effects of the first session. In this respect, proceedings at the first hearing in two legal system of
Iran and France is no different.
Chapter Two: Rights and obligations of plaintiffin the first hearing
First topic: The rights of plaintiff to withdrawal of an action in legal system of Iran and
France
In this review, we will examine the circumstances and consequences of withdrawal of an action
and that this right is possible until the first hearing or tothe end of the first hearing.
First Speech: Withdrawal of an action in the Iranian legal system
According to paragraph A of Article 107 of Civil Procedure Act:
"Plaintiff to can withdraw his petition until the first hearing. In this case, court issues the
annulment of petition."Therefore, plaintiff wants to withdraw his submitted petition due to
incompleteness or any other causes, this is should be done before the first hearing. Withdrawal of
an action is not possible after the first hearing.So, plaintiff can withdraw his claim that in this
case, rejection of the claim is issued (Paragraph B of Article 107 of the Civil Procedure Code).
Second speech: Withdrawal of an action in the French legal system
Withdrawal of an action in French law is one of hearing interpleader which gives right to
plaintiff to withdraw his petition or his claim with the conditions below. So, withdrawal of an
action is passing up or leaving the case without waiting for the verdict on it.In withdrawal (of) an
action, two things usually should be distinguished, one withdrawal of the hearing actions and
other withdrawal of the nature of an action.Withdrawal of the hearing actions occurs when agent
was aware of its effects and considered it void. Not only this kind of quitclaim is not possible for
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plaintiff,but also defendant can do it and agreement of the other party is not necessary (Couchez.
Gerard. 1990. p 262).
Nonsuit is more important action, because not only the agent leaves proceedings, but quitclaims
from a right that has remedies.Nonsuit is a unilateral action in which the agreement of other
party is not a condition to its authenticity. Because the other party does not realize damage in
nonsuit except benefit (Couchez. Gerard. 1990. p 262).
But what is the focus of debate, as one of the plaintiff rights, is desistement de la demande which
is different with two above-mentioned cases and this is equivalent to withdrawal of an
action(Article 107 of the new Code of Civil Procedure in Iran).In French law, withdrawal of an
actionis possible in throughout the judicial process and in this regard, Article 394 of the French
Code of Civil Procedure stipulates that "plaintiff may extradite his own cause at any stage of the
proceedings".So, it also includes the research and protestation by indicating "at all stages".So, it
is axiomatic that withdrawal of an actionis possible in all stages of the proceedings, unless
otherwise stipulated in the law.For example, paragraph 2 of Article 1120 of the French Civil
Procedure Code revokes the extradition proceedings on the divorce decree in research stage.That
is, it should be done at the first hearing (Couchez. Gerard. 1990. p 262).
It appears that withdrawal of an action is not different in the Iranian and French law,because
Article 107 of Iran the Civil Procedure Code also predicts withdrawal of an action throughout the
judicial process.
But in the case of withdrawal of an action which is the focus of our discussion, paragraph 1 of
Article 395 of the new Civil Procedure Act of France states a principle that withdrawal of an
action will be accepted only in the first hearing and withdrawal of an action after the first session
is only possible if defendant is satisfied (Couchez. Gerard. 1990. p 262).It seems that withdrawal
of an action is similar in Iran and France laws, except that it is unexpected in Iranian law that
withdrawal of an action after the first hearing may be possible, and plaintiff can withdraw its
lawsuit after the first session, which is different to withdrawal of an action.But in French law,
withdrawal of an action after the first hearing is possible by agreement of defendant.In French
law, withdrawal of an action has the effect that plaintiff merely cancels the hearing and his
litigation rights will not be lost. In this regard, Article 398 of the new Code of Civil Procedure
France states that"not only withdrawal of an action in thefirst hearing does not eliminate relitigation rights the issue at stake, but it merely leads to deterioration of the
proceedings»(Couchez. Gerard. 1990. p 263)and this is due to different effects of withdrawal of
a claim and withdrawal of an action.Because in Iranian law, the annulment of petition is issued
by withdrawal of an action and plaintiff does not deprive to bring an action.The result is that
plaintiff has the right to extradite his petition in the first hearing in the French law and adduces
the same demands through citing new evidence in another petition without eliminating right and
matter of dispute.
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The second topic: Rights of plaintiff to changing claim and increasing claim
In this context, we will examine the changing claim and increasing claim and finally comply it
with the French law.
First Speech: Changing claim
One of the advantages of the first hearing for plaintiff is that he is entitled to increase the claim
set in petitions until the end of the meeting or change the way of lawsuit filed or claims or
petitions.These are possible only at the first hearing and such rights are not expected for plaintiff
in subsequent meetings of the hearing, but reducing claims is possible on all the judicial process.
Second speech: Increasing claim
The possibility of increasing claims is one of the privileges of the first hearing. In other words,
increasing the claims specified in the petition is possible, only until the end of the first hearing
provided that it is related to the raised claim and has a single origin. Having regard to Article 98
for the possibility of increasing claims, existence of three conditions is necessary:
Firstly, the added claim is related to the first one.
Secondly, the source of new and former claims to be same; i.e. two claims to be from a source.
Thirdly, the increase of claim is possible until the end of the first hearing and there is no this
possibility for plaintiff in subsequent meetings of the hearing.
Third speech: Comply with the French law
As mentioned, Iranian law stipulates that hearing should be done until the end of the first
session.But there is such stipulation in French law. Given that hearing is possible until the end of
proceedings and changing claims is possible in this way,so changing claims is not bound to a
particular time and is possible before the end of the hearing.In the French system, according to
an accepted principle, based on Law No. 1468-77- thirtieth of December 1977, proceedings are
free in Judicial and administrative bodies (Couchez. Gerard. 1990. p 283). So, plaintiff is not
obliged to pay for legal fees in the particular sense. However, costs such as expert fees, etc. had
to be paid.However, this does not mean that plaintiff does not specify the amount of his claim in
petition, but the amount of claim is effective in determining jurisdiction and the appeal.
Nevertheless, none of the Provisions of the new French Code of Civil Procedure, especially
substances related to hearing, does not mention anything on plaintiff’s right to request changes of
claim in the first session or other sessions. The result is that the change on amount of claim by
plaintiff in French law is avoided at the first hearing. It has not been stipulated on the way of
changing the lawsuit in French law and civil Procedure Code in French law and civil Procedure
Code of this country and the issue that it is considered as a right for plaintiff at the first
hearing.But the unification of standards from the right to change claims of plaintiff can be
concluded that plaintiff has the right to ask the court on changing the way of case.So, provisions
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of changing claims will be enforced on changing the way of case which described. There is not
affirmation in the French Civil Procedure Code on changing request.
The third topic: Duties to present the original documents
In this context, we will examine the duties of plaintiff at the first hearing in Iranian and French
laws, including present the original documents and executive guaranty of the lack of presenting
the original documents and its compliance with French law.
First speech: Duty to present the original documents
One of the duties of plaintiff in the first hearing is that he presents the original documents which
their copies were attached to his petition, at the first session in court.If the cited reason of
plaintiff is document, he should attach the copy or certified copy of mentioned document to the
number of defendant of claim plus one version to petition (Articles 57 and 60 of the Civil
Procedure Code).
Second speech: compliance with French law
Any party, whether at the first meeting or in petition or even during a hearing, referred to the
document is obliged to present it at the hearing.In this legal system, it does not mention on
concerning the executive guaranty of failure to provide the original documents. It is perhaps due
to not obligation of the parties to prove the authenticity and originality of documents alleged
forgery and denial and skepticism in the French legal system. But the judge undertakes to
announce the authenticity by available tools such as comparing the research documents and
referring to expert;i.e. judge researches about the authenticity of document.So in the legal
system, executive guaranty for leaving the claim, reasons in the case of violations and failure to
provide the original document had been anticipated.The result is that the parties are obliged in
French law that not only the original of their cited documents, but also present the original
document requested by the other party to the court and its executive guaranty is also necessary.
However, this obligation is not confined to a particular time; i.e. the first hearing. If it is possible,
they should cite to new documents during the proceedings and it seems that the duty of
presenting the original documents exists until before the end of the proceedings.
Chapter Three: Defendant rights and obligations in the first hearing
First topic: The deadline for statement of objections in Iran and France
First Speech: The deadline for statement of objections in Iran
The deadline for statement of objections is until the end of the first hearing. (Article 87 of the
Code of Civil Procedure). Of course, if the cause of deliver occurs later, the time for statement of
objections is in the first session after the reason.If defendant does not deliver the statement
within specified deadline,court is not required to issue the vote separated from the nature of case
to the objection, in accordance with Article 90 of the Civil Procedure Code
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. According to
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Article 87 the Code of Civil Procedure,objection deadline for rejecting judge is also until the end
of the first trial, unless the cause of objection would arise later.
It must be understood that as the objection of lack of inherent jurisdiction of the court and
objections referred to in paragraphs 3 to 11 of Article 84 of the Civil Procedure Code are part of
jus cogens, the court shall vote to the objection apart from the nature and without entering to the
nature, even if they are not delivered or are delivered out of due.Because if this objection is
accepted, the court cannot go into the substantive proceedings.But the court is not obliged to vote
to them apart from the nature if the objection of lack of relative jurisdiction and raised objection
are not expressed.
Second speech: Deadline for statement in France
As stated in previous speech, the time of objections in the Iranian law should be done until the
end of the first hearing, unless the cause of it would arise later.But, the time of objections is not
specific to the first session in French law.And despite the fact that Article 74 French new Civil
Procedure Code provides that objections must be done before any defense in nature;
nevertheless, the rule has been violated in some cases; e.g. in the case of objection to the suit
which can be delivered during the proceedings. Or invalidity objection due to violation of
substantive rules is possible at any time of the hearing (Couchez. Gerard. 1990. p 112). It seems
that the phrase which exists in the Civil Procedure Code of Iran i.e. "unless cause of objection is
subsequently created," somehow justifies the violation of the rule set forth in French law.
Second topic: Counterclaiming legal system of Iran and France
First Speech: Counterclaiming Iranian law
Counterclaim petition must be submitted until the end of the first hearing. In legal terminology,
the counterclaim has numerous definitions,but all definitions provided have substantive
differences with other and sometimes repeat the phrase of Articles of the Procedure
Law.However, we will examine some of them, because each definition has special
features.Counterclaim is among the ancillary claims. Ancillary claim happen during the
proceedings of an appeal (main claim).If Ancillary claim is filed from plaintiff is
called"additional claim" and when it is filed by defendant against the plaintiff’s claim is called
"counterclaim" andif it is filed by a third party or against a third party is called "impleader" or
"third party intervention" (Matin Daftari 2002, 315).One of the authors on the definition of the
counterclaim says: it is a claim that a defendant brings in the court against a plaintiff requests
addressing to it "(Bahrami 2000, 251-250). Another lawyer has defined the counterclaim by
using its conditions (Jafari Langeroudi 1993, 4: 198).Some believe that counterclaim is a claim
that a defendant files against a plaintiff’s claim.The claim may be due to meet the main claim or
the requirement of plaintiff to pay something or do something, in addition to
accountability.Shams, in the definition of counterclaim, states that: "counterclaim is a claim that
defendant canallege against plaintiff’s claim under the circumstances to reduce the conviction
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that threatens him, generally prevent the conviction or even obtain sentencing the main plaintiff
for giving concessions "(Shams 2008, 1: 461).
Second speech: Counterclaim in French law
Counterclaim (Demande conventionnelle) is defined as a claim in which defendant
independently files instead of defending against the plaintiff’s claim to compensate conviction by
condemning plaintiff in the second claim on the case of conviction in plaintiff’s claim against
himself,and (Demande reciproque) isa claim that defendant files against the plaintiff’s claim, in
addition to defense (Katebi 1984, 118).Comparing the two above concepts, we infer that
(Demande reconventionnelle) has defensive nature, while it is an independent claim to demand
something extra from plaintiff through the courts at the same time.But (Demande reciproque)
has apparently only defensive nature. In legal terms, counterclaim is one of the ancillary claim
which is filed by defendant in which not only defendant does not satisfy to defend against
plaintiff, but also he asks the sentencing of plaintiff along with making determined concession
from the court.
Third topic: Defendant duty to attend and present the original documents in the first
hearing
Essentially, parties have no obligations to attend in the first hearing; but if the defendant wishes
to be present at the first meeting of proceedings, he is obliged to submit the original of
documents and documentations to the court. If he does not be present in the court, he should
provide these documents and documentation to the court by a lawyer or his representative. This
obligation of defendant is related to the first hearing, and there is a sanction or executive
guaranty to do this task.
Conclusion
As mentioned at the end of each speech, we also reviewed each of the rights and obligations of
the parties at the first hearing in French law; and conclusion was somehow conducted, in
addition to compliance. But as a general conclusion of the debate in decades ago, most legal
systems believed that the time of exercising the rights or obligations should be limited to special
time due to quickly resolve claims and prevent the prolongation of procedure which was in the
interests of one of the parties in any case, and violation of this special time has its own
sanction.Accordingly, term the first hearing had a special place in the Act of Civil Procedure
Code and many rights and obligations of the parties were limited to this point in time.But it
seems that the international legal process is in the direction that the rights of the parties have
fewer constraints.Therefore, the parties are allowed to exercise the right in maximum of possible
time and the obligation to duty of the other side to the extent that the basis of hearing does not
damage.So, titles like (timely) (in debate of impleading time in French law) or (unless the cause
ofobjection subsequently happens) (in debate of exercising objections in Iranian law) were
gradually used and sometimes this time limit was removed for adjustment.It is more in French
law in contrary to Iran, where the first session is in fact the first situation that the parties are in
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front of each other.In French law, the parties will face to each other in judging state and before
the first hearing in some cases.And some objections, including objections to the delay which are
appeals meeting or requests for delay in meeting on Iran occur in this step.So, the first hearing in
French law is not considered as it is in Iran law. As far as, the term until the first hearing has
been rarely used in theCivil Procedure Code of the country.And the term (before providing any
defense on the nature of the claim) has been used in cases where the mean was the first
hearing.The same process, i.e. removal of the time limit, can still be seen in Iranian law,as in the
Civil Procedure Code, cases such asobjection to judge or submitting action for damage which
were bound to the first hearing in the previous law are applicable without time limit until the end
of the hearing.Of course, mere imitation of other legal systems and subsequently, removal of
restrictions according to the political, economic, cultural and social structures governing Iran
would not be acceptable,because resolving time constraints causes the misuse of jobber people
and then will lead to the prolongation of proceedings which is one of the destructive
consequences of a fair trial.Unless in one hand, we reduce restrictions and on the other hand,
strong executive guarantees is predicted to deter the misuse.So, the term laws and its suitability
with the needs will have mutual impact in cultural, social, political,and even economic
structures.In the hope that it to be achieved and we see the more excellence of rules and
principles and laws governing the proceedings in our courts.
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A) Persian
• Ansari, Masoud and Taheri, Mohammad Ali, (2005), Encyclopedia of Private Law, Tehran,
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