Break antagonism in the Civil Suit

Break antagonism in the Civil SuitPDF

Saed Wahid Kamel Hamdullah

Supervisor(s)

Dr. Akram Daoud -

Discussion Commity

84 صفحة

Abstract :

Abstract The Civil Lawsuit is considered the legal way of protecting rights and demanding them. Some jurisprudents define the lawsuit as "the authority of resorting to law to acquire a right ratification or for protecting it" or "the authority of resorting to law for the purpose of its application". The lawsuit is practiced by any person who thinks that s/he has a right protected by the law, or has a right s/he wants to reveal by using his/her right in suiting. This judicial demanding starts as the right owner follows certain procedures demanded by the Palestinian Civil and Commercial Trials Assets Law No. 2/2001, and the first one is to submit the list of the lawsuit, to get a final arbitration in the lawsuit and executing it. The argument is defined as "a group of procedures that starts from the time of announcing the lawsuit, till a judgment is made with regard to its subject or its expiration without a judgment" ([1]). Other jurisprudents define "the civil argument as a moving phenomenon, and from its features the sequence through following procedural work, that time chronically in sequence, and technically bonding for the purpose of reaching to acquiring the subjective or timely judicial protection of the rights that are disputed on"([2]). However, a number of hindrances that eliminate it sometimes and pause it other times may emerge during the lawsuit. These hindrances are represented by: First: the discontinuation of the lawsuit that follows the procession of argument procedures, as it hinders it from movement and advancing. It makes them stagnant procedures, that can't be trespassed unless the reasons behind it are trespassed. Second: stopping the procession of the lawsuit based on the arguers agreement. Article (127/1) of the Palestinian Civil and Commercial Trials Assets Law stipulates the following: "the court has the right to postpone the lawsuit based on the agreement of the arguers, in a period no more than 6 months from the date of its ratification by the court". The court is also allowed, on its own, to decide to stop the lawsuit according to Article 126 of the same law. "1- The court is allowed, on its own, or based on the arguer request, to stop the lawsuit procession, if it sees that the judgment in its subject depends on the decision made in another issue, 2- any of the arguers is allowed to ask for speeding the lawsuit procession as soon as the reason for stooping is ends". From this we find that the discontinuation is above the will of the lawsuit parties and the court, while stopping it is the decision of the arguers or the court itself. Third: dropping the lawsuit, by the claimer, through two ways: exonerated dropping, or non exonerated dropping, and on the second type, the claimer can hold a new lawsuit. Fourth: the End of argument, as the defendant has the right to demand the judgment by the end of the argument after six months period starting of the last procedure taken at the lawsuit, and then it was not proceeded by the claimer. The argument legally ends two years after the date of conducting the last procedure. The discontinuation of the argument in the civil lawsuit is considered as one of the most important hindrances that follows the procession of the argument's procedures, hinders its movement, and stops its development which makes it stagnant that it can't be stirred or trespassed unless the reason behind them is. From this, we conclude that the discontinuation of the lawsuit's procession makes the procedures stop, under the occurrence of something that hinders its advancement above the will of lawsuit parties and the court, as the court become unable to ignore it whenever its reasons occur([3]). The Palestinian legislator has approached the subject of the discontinuation of the civil lawsuit in the 8th chapter, section 2, of the Palestinian Civil and Commercial Trials Assets Law No. 2/2001 No. 2/2001, under the title "argument hindrances". The subject of discontinuation in the lawsuit procession is referred to one of the reasons defined by the legislator, exclusively, in the Article 128/1 of the Palestinian Civil and Commercial Trials Assets Law No. 2/2001 which leads to paralyze the effectiveness of the rights of defense. The subject of discontinuation of the lawsuit procession has a considerable importance in the Palestinian Civil and Commercial Trials Assets Law, for the purpose it protects. It is ratified to protect the civil lawsuit parties, which give them the right to practice all the civil lawsuit procedures in a way that guarantees to the suitors their judicial rights, and in a way that the sacred right of defense is not violated, and that justice is being in progress. The proceeding of a civil suit is discontinued before a first degree court as a subject court and an appeal court to review appeals before the court of appeal according to articles of law 128/1 which mentioned earlier and also according to the articles of law 224 of the same above mentioned law. This law indicates that “ rules of appeals applies to a first degree law which are related to the presence of liabilities or their absence or the regulations and rules which do not contradict the articles of law.” The matter of discontinuation which is related to a civil suit does not apply to procedures before the Court of Cassation because of the special procedures. This does not rely on the confrontation between liabilities but they have the opportunity to be at court according to the instructions of their attorneys unless if they request that in writing. The court has it evaluative authority in this regard. Moreover, reasons for appeal are indicated by legislators in article 226 of the principles of civil and commercial Palestinian courts (No 2 for 2001) which are made to guarantee a respect for the court of appeal to implement the law. It is worth noting that discontinuation is not mentioned in executive law suit before an executive judge which the article 12 of Executive Palestinian Law number 23 for 2005”: 1. those who break a law or an agreement in the place of creditor, they have the right to be replaced by it in executive procedures. 2. those who implement the verdict according to article 1 in all cases which there is an impediment which is created between creditor and the following up of procedures as absence, demise of potential, and demise who represent them according to article 14 of the same law. If creditor loose the potential or dies, his or her inheritors or who represent him or after, can after 10 days after receiving necessary papers of execution, start the execution process. It is possible to notify the inheritors of creditor that that of his or her last residence without the clarification of their names and personal details which are matched with the amount of money Abu Al-Wafa, Ahmad: Cibil Traials Assets, Previous reference, page 143. (([1] This is Justinian's definition, on Omar, Nabil Isma'el: Mediator in Commercial and Civil Code of Procedures. Egypt: New University Publications. 1999, page 591. (([2] Abu Al-Wafa, Ahmad: Civil Traials Assets, Previous reference, page 545. (([3]

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