Criminal inquest or interrogation is a known and effective investigation method for truth discovery and criminal justice. Due to the close relationship between criminal affairs and public order, there is obviously no doubt in usefulness of this method. In civil proceedings, civil interrogation does not enjoy such a value due to lack of explicit stipulation by the legislator. In fact, civil interrogation is a judicial measure based on which the judge may question the litigants or one of them regarding subject of the action and discover the truth ranging from proving or rejecting the claim.
A glance at the comparative aspect of the issue reveals that despite there is no clear and precise regulations regarding interrogation in our laws, it has been explicitly discussed in the judicial system of many Western countries like France and Arabic countries like Egypt.
In the French Civil Procedure Law, whether in the prior law known as Napoleon Code (Articles 324 to 336) or in the new law (Articles 184 to 198), this issue has been addressed under the title "Le Personnelle de parties Comparution". Another term used in the French Civil Procedure Law is "interroger".
These terms are apparently applied in all civil or criminal proceedings in the French Civil Procure Law, so there is no difference between interrogation in civil and criminal affairs in terms of word application.
In the Arabic countries judicial system, personal presence of the litigants for questioning is interpreted as "interrogation". Since Arabic countries comply with a written legal system, their laws have been inspired by the French law particularly in the civil proceeding area. Accordingly, regulations pertaining to "interrogation" in these countries have been mainly derived from "Le Personnelle de parties Comparution" issue in the French Civil Procedure Law.
This paper aims at proving the fact that evidence obtainment is not an obscene act contrary to what is thought; rather it may guide the judge towards truth discovery which is the desired cause of the civil justice system. In fact, evidence obtainment provides the stage of discovering the truth. Thus it seems that litigants' interrogation is an effective tool for court activism, i.e. truth discovery.
Part I: Concept of Interrogation
The question raised in the beginning is that what the word interrogation means.
Chapter One: Lexical Meaning of Interrogation
The research carried out regarding this word by linguist scholars reveals that it has a particular position in the political science and law. In one of the dictionaries (Khalil Jar, 1986) interrogation is regarded as an infinitive which is equivalent to interpellation in the political science. In the science of law, this word means one of the methods of interrogation by which the interrogator asks his questions and writes down the answers.
Chapter Two: Idiomatic Meaning of Interrogation
With regard to last chapter, one can say that in the legal literature, interrogation is an investigative measure undertaken by civil judge to discover the truth. In the other words, the judge has this authority to summon the litigants for interrogation in order to achieve justice. Interrogation is an investigative measure by which the court may summon the litigants and raise some questions regarding the subject of action and try to deduce the truth from their response or reaction. Hence, interrogation may result in indication, circumstantial evidence, or even confession. However, it may have no effect on truth discovery and dispute settlement in some cases.
Part II: Interaction of Judge and Litigants in Evidence Obtainment
First Issue: Evidence Obtainment in Judicial Systems
Legal rules of any society are influenced by economic, political, social, and historical developments. Also any country has its own specific rules and regulations. These rules and regulations bring about order in the society. Civil proceeding is not excluded from these rules. Consistent with necessities of a society, judges enjoy some authorities. In general, two schools have been followed by most countries in civil procedure law; beside these two, another method has been followed that will be discussed in the next issues.
Chapter One: The Role of Judge and Litigants in the Accusatory System(1)
Accusatory system that is consistent with teachings of liberal law school is based on passive role of judges. The judge does not interfere in the plaintiff and defendant action and just monitors and declares which one has proved his claim with sufficient evidence. The judge is not permitted to obtain the evidence and the litigants have the authority to raise, suspend, or stop the action (Choo, 1998).
Chapter Two: The Role of Judge and Litigants in the Inquisitorial System(2)
This system is highly influenced by socialism law school. Contrary to accusatory system, here the judge plays an active role (Nojavan, 2000, p. 64). In this method, the judge plays an important role in obtaining the evidence. Trial is preferably closed (the same, No. 216). Moreover, a superior position has been considered for judge knowledge (Akhundi, 1993).
Chapter Three: The Role of Judge and Litigants in the Mixed System
It is inferred from the above mentioned matters that the fact making accusatory system from inquisitorial one distinct is the mission granted to the judicial authority to settle the disputes. Nowadays among advanced countries laws, rarely a law is found that comply with a particular school or method; maybe the common law stance in this regard is distinct.
Contemporary legal systems have sought to integrate advantages of both accusatory and inquisitorial systems and remove their disadvantages. According to the great scholars, "there is no mixed system and its main lines cannot be specified like accusatory and inquisitorial systems (the same, No. 218, p. 123). Any system influenced by both accusatory and inquisitorial methods is regarded as a mixed system and most civil procedure systems are in the form of accusatory system inclined towards inquisitorial system and the rate of this inclination is specified by the judicial policy of each country, degree of confidence in the judge, and consistency of order and justice (Katuzian, 2001, v.1, p. 45).
Second Issue: Passive Role of Judge in Evidence Obtainment (sovereignty of the litigants)
Chapter One: Passivism Thought Background
First Clause: Historical Developments of Passivism Thought in the Iranian Law
Obviously studying the Iranian law without studying the French law seems useless; because the French legal system has been the model of our legal system particularly in Civil Procedure Law area from the beginning of the legislation. Thus this paper will study passivism thought in terms of historical developments in the French law and then in the Iranian law which has been certainly influenced by French historical and legislative developments.
Legal developments of any country are influenced by its historical developments. Hence studying any legal entity without considering its historical aspects will be useless.
The French Great Revolution 1789 was a turning point for the legal system of this country. In the other words, its gift was penetration of liberalism thoughts (individualism theory) and emergence of passivism thought in the French legal entities.
Second Clause: Legislative Developments of Passivism Thought in the Iranian Law
As we know, studying legislative developments of a thought depends upon studying its political, social and historical contexts. On the other hand, studying legislative developments of this thought in the Iranian law involves understanding the trend of these developments in the French law which has been an inspiring model for written law member states. So, like historical developments, this paper will first review briefly the trend of these developments in the French law and then will study the issue in detail in the Iranian law.
Chapter Two: Passivism Thought Base
Studying historical and legislative developments of passivism thought reflected that the litigants are responsible for the evidence as a positive tool. Hence, passivism thought is based on the principle "prohibition of evidence obtainment by the judge".
First Clause: Concept of Evidence Obtainment
"Obtainment" in Persian language means getting and gathering something (Dehkhoda, Dehkhoda Dictionary).
Writers apply this word when something belongs to others and is not available for the related person, but finally the person attains it by a series of measures and operations.
In the legal literature, this word has been applied in the same meaning. So in the science of law, "evidence obtainment" may be defined as an act undertaken by the court; now if the court obtains the evidence which is regarded as an object owned by the litigants who have the exclusive authority of submitting and expressing it, two assumptions are conceivable: first, one of the litigants has requested it from the court, so the court "administers the evidence"; second, the court has obtained evidence without request of the one of the litigants, so in this state the court "has done it in an unauthorized manner". In this assumption, evidence obtainment is regarded as an obscene act.
Second Clause: Analysis of Prohibition of Evidence Obtainment Principle
In the Iranian judicial system, lawyers have derived prohibition of evidence obtainment principle from the first part of Article 358 of Civil Procedure Law (previous), "no court may obtain evidence for the litigants, rather it may only hear the evidence submitted or expressed by the litigants". Two points can be inferred from this article:
Court Prohibition from Evidence Obtainment for the Litigants
This point can be inferred from the first part of Article 358 of (previous) Civil Procedure Law. With regard to the generality of the legislator decree, all courts, i.e. courts that hear civil and commercial actions, are prohibited from obtaining evidence for the litigants. However it seems that prohibition of evidence obtainment principle governs only in the court of first instance and appeal court, and the supreme court that supervises lower courts and investigates procedural affairs is excluded from this principle; because this court does not investigate litigants' evidence (substantive investigation), rather it supervises (formal investigation) whether lower courts have investigated the evidence accurately and based on law or not. Article 557 of (previous) Civil Procedure Law confirms this matter.
Court Restriction in Investigating Evidence expressed by the Litigants
The legislator has mentioned this restriction in the second part of Article 358 of Civil Procedure Law, "... rather the court investigates evidence submitted or expressed by the litigants." The word "rather" indicates that the principle positive concept is more underscored by the legislator than the negative concept. However the remarkable point is that "prohibition of evidence obtainment principle" is more discussed in our judicial procedure and legal literature!
1- Systeme Accusatoire
2- Systeme inquisitoire
Rozita Karimpour, Master of Private Law, Shiraz University, Shiraz, Iran & Zahra Karimpour, Master of Private Law, Shahid Bahonar University of Kerman, Kerman, Iran
Corresponding Author: Rozita Karimpour