دعاوی متقابل در نظام حقوقی ایران ( بخش اول )
آگوست 14, 2016
دعاوی متقابل در نظام حقوقی ایران ( بخش سوم )
آگوست 16, 2016
دعوای متقابل در نظام حقوقی ایران ( بخش دوم )
همانگونه که در مطلب دعوای متقابل در نظام حقوقی ایران ( بخش اول ) مطالعه فرمودید ، توضیحاتی پیرامون تاریخچه آیین دادرسی مدنی و نحوه بوجودآمدن آن ، ارائه گردید . در ادامه در این مطلب ، وکیل پایه یک دادگستری ، در مورد تاریخچه دعاوی متقابل و دعاویه متقابل در فقه امامیه را برای شما آماده کرده است که بدین گونه می باشد :
دعوای تقابل در متون قانونی قدیم ایران از جمله قانون معروف به اصول “محاکمت حقوقی” مصوب ۱۳۰۵ به “حواشی محاکمه” ترجمه شده است لیکن این اصطلاح از حقوق فرانسه اقتباس شده است در این نظام” دعاوی طاری” از “طواری دادرسی” تفکیک شده است و به همین دلیل اصطلاح les demandesincidents را برای دعاوی طاری و les incidents de la procedure را برای طواری دادرسی بکار برده است. اما قانونگذار ایران در این اقتباس، دقت کافی بکار نبرده است و هر دو مقوله را تحت عنوان واحد “امور اتفاقی” در فصل ششم قانون آیین دادرسی مدنی باب بندی نموده است .
این حوزه هم از جمله مواردی است که می توان با مراجعه به این موسسه حقوقی و استفاده از مشاوره حقوقی رایگان ، در انجام امور حقوقی خود ، از آن کمک گرفت .
منظور از “طواری دادرسی” امور جانبی است که خواهان برای اثبات دعوی اصلی و در نهایت برای استیفای خواسته خود در طول جریان دادرسی می تواند انجام دهد و نیز خوانده می تواند از این ابزار برای دفاع از حقوق خود در مقابل دعوای اصلی استفاده نماید این ابزار شامل ایرادات، درخواست تامین اعم از تامین خواسته و تامینی که از اتباع دولت های خارجی بابت هزینه دادرسی و خسارت حق الوکاله می تواند اخذ نمود. همچنین درخواست ارائه سند از مواردی است که در جریان رسیدگی به دلایل دعوی، هر یک از اصحاب دعوا می توانند به آنها تمسک جویند مانند انکار، تردید، ادعای جعل و غیره.
دعاوی اعم ورود ثالث، جلب ثالث و دعوای تقابل از مصادیق دعاوی طاری است . در واقع در میان این دعاوی حقوقی ، دعوای تقابل نوعی دفاع توام با حمله است که مزیتی خاص به این نوع دعوا بخشیده است .
دعوای تقابل در فقه امامیه
نویسندگان قانون آیین دادرسی مدنی ایران مقررات مربوط به این مبحث را از حقوق فرانسه اقتباس کرده اند اما به نظر می رسد این نهاد حقوقی بدون عنوان خاص در فقه امامیه نیز وجود دارد. از طرف دیگر ماده ۳۷ قانون مدنی نیز در واقع چهره ای از دعوی تقابل را ترسیم کرده است.
طبق ماده ۳۷ ق.م اگر متصرف فعلی اقرار کند که ملک سابقه مال مدعی بوده است در اینصورت مشارالیه نمی تواند برای ادعای مالکیت شخصی مزبور، بتصرف خود استناد کند، مگر اینکه ثابت نماید که ملک به قائل صحیح به او منتقل شده است.
طبق مفاد این ماده متصرف فعلی می تواند در پاسخ به دعوی رفع تصرف خواهان متقابلاً درخواست رسیدگی به ادعای مالکیت خود را در مقابل او بنماید و دادگاه ناگزیر از پذیرش چنین درخواستی است .
مشاوره حقوقی آنلاین در سایت مشاوره حقوقی ، فعال می باشد .
بنابراین می توان گفت طرح چنین ادعایی از طرف خوانده نسبت به دعوای اصلی، ماهیت دعوای تقابل را دارد . این مساله “در جامع الشتاب فمی” در صفحه ۶۶۲ در قالب سوال و جواب به شرح زیر مطرح شده است:
هرگاه عمر و قسم خورد دعوای زید ساقط می شود و هرگاه عمر و قسم را نکول کرد – عوای او باطل می شود مگر اینکه به زید رد قسم کند که در این صورت بعد از رد قسم به مقتضای آن عمل می شود .
در مساله فوق با توجه به اینکه دعوای اصلی توسط عمر و مطرح گردیده بوده است ذید با طرح ادعای انتقال مالکیت مال مورد تنازع به ناقل قانونی به خود ، حق پیدا می نماید که “عمرو” را وادار به ادعای سوگند نماید ، معلوم می گردد که وی نیز به عنوان خواهان در مقام اثبات دعوی دیگری است که نسبت به دعاوی اصلی عنوان دعوای تقابل را دارد .
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Rinehart, Robin (2004). Contemporary Hinduism: Ritual, Tradition, and Observe.
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