نوع مقاله : نقد رای دیوان عالی کشور
عنوان مقاله English
نویسنده English
If a final judgment is reversed on the basis of the Sharia, this reliance must be explicitly stated in the reversal of the judgement.The general grounds of conflict with the Sharia standards should not lead to setting aside the final judgment. Sharia is a legal system containing mandatory and supplementary rulings. The phrase "clearly contrary to the sharia", in the author's opinion, means that the judgment in question contradicts the mandatory part of the Sharia, and not any ruling in the Sharia. Dealing with the procedural and merits of claims in the Supreme Court after the head of the judiciary has authorized a de novo proceedings, allows the branch to which it was referred, for example in the present case where the penalty clause is considered excessive, to assess the appropriate amounts of damages by obtaining the opinion of an expert and to make a ruling accordingly.Reversal of a judgment, issuing of a judgment to dismiss a plaintiff's claim, and recommending that he should file a new pleading, simply based on the general principles of the Civil and Civil Liability Acts, is highly questionable.
کلیدواژهها English