نوع مقاله : نقد رای دیوان عالی کشور
عنوان مقاله English
نویسنده English
Valuable information about the branch issuing the decision or its judges should not be removed from the text of the decision under the pretext of anonymizing the decision before publication. This will lead to confusion in judicial procedure. Also, if a final decision is overturned on the basis of Islamic law, the citation of this Islamic law must be explicitly documented. The general direction of conflict with Islamic law standards should not lead to the setting aside of a final decision. Islamic law is a legal system containing mandatory and supplementary rulings. “Manifest Contrary to Islamic law” in the author’s opinion means contrary to the mandatory part of Islamic law and not everything in Islamic law. Formal and substantive review in the Supreme Court after the approval of a retrial by the esteemed Head of the Judiciary allows this court to assess, announce and rule on the appropriate amount of damages in the present case, which considers the condition of the clause penal excessive, by seeking the opinion of an expert. Overturning the decision and issuing a ruling that the plaintiff is unjust and referring him to his new lawsuit, based on the general principles of the Civil Code and the Civil Liability Code, is highly objectionable.Therefore, the anonymous verdict issued by the Supreme Court should be considered a verdict that can be criticized. A criticism that includes three aspects: criticism from the perspective of the method of publication; criticism from the perspective of the concept of Sharia and finally criticism from the perspective of guaranteeing the implementation of the excessive condition of the obligation. With this description, the verdict has a positive point, and that is the effort of the court branch to respect the defense rights of the opposing party to request a retrial after the approval of the esteemed head of the judiciary.
کلیدواژهها English