بسم الله
 

Visitors: 275

Interrogation in Civil Proceedings- Part 2

  4/9/2015

Part III: The Result of Judge Activism Thought in Evidence Obtainment

In the last issues it was revealed that the judge prohibited from obtaining the evidence was gradually permitted to "carry out "necessary investigations for discovering a matter during the trial (second part of Article 358 of (previous) Civil Procedure Law). This general prescription was confined to the investigations predicted in the Civil Procedure Law whether in terms of title or the related regulations such as site inspection and investigation, etc. but personal investigation was excluded from these investigations.

First Issue: Interrogation Conditions

The conditions of litigants' interrogation validity may be classified into three groups:
a. The conditions of the person who can interrogate or request the interrogation.
b. The conditions of the person who is summoned for interrogation.
c. The conditions of the subject of interrogation.

Chapter One: The Conditions of the Person who can Interrogate or Request the Interrogation

It must be noted that this person may be the court or one of the litigants, and each of them has its own specific conditions.

First Clause: The Court as the Interrogation Seeker

The French Civil Procedure Law explicitly provides that the judge may summon the litigants (Article 184). Decrees issued by the French Supreme Court indicate that substantive judges evaluate the order of summoning the litigants, and in the other words, this has been totally at the courts' discretion (Les Juge, 2003). Since investigation stage has been predicted in the French Civil Procedure System, the judge enjoys such authority as well. In the Arabic countries laws, the court has this authority to summon the litigants without needing the request of the litigants. So, interrogation is among the litigants rights in judicial practice of these countries.
In the Iranian law, the court is bound to undertake any investigation or measure required for discovering the truth. Article 199 indicates such an obligation and that the court must do it without needing the request of the litigants.

Second Clause: The Litigants as the Interrogation Seeker

It seems that the French Law is silent about the right of one of the litigants to request the interrogation. Yet the Arabic countries laws have recognized this right for the litigants. Thus no one except for the litigants enjoys such a right. However, the court may accept or reject the request of one of the litigants for interrogation. Some Arabic authors believe that interrogation does not always aim at achieving judicial confession; rather it is sometimes used as a defensive means by one of the litigants and as a tool for detecting the subject of dispute by the court.

Chapter Two: The Conditions of the Person who is summoned for Interrogation

The interrogated person is one of the litigants (i.e. plaintiff and defendant) that is summoned for interrogation by the court. Also a third party brought into an action is regarded as among the litigants. The interrogated person may be natural or legal. So the conditions of these persons are studied separately.

First Clause: The Conditions of Natural Person as the Interrogated Person

The natural persons that are summoned by the court to answer the questions of the court must have two conditions: capacity and possession permit.

Capacity

Only the litigants are the subject of interrogation. So the person that is summoned to the court for interrogation must have capacity. In the French Law that has been inspiring for the Lebanese Law, the judge may summon interdicted persons under the rules pertaining to the persons' capacity; also their legal representatives or the persons who support them may be summoned to the court.

Possession Permit

Maturity, wisdom and authority constitute the elements of capacity. Lack of one of these elements makes the person incapacitated. Besides the above mentioned elements, possession permit has been added to the conditions. Some lawyers (Katuzian, 2003, v. 1, pp. 208 and 209) believe that adding this condition imply two important results: first, although a bankrupt person is not considered interdicted, he is prohibited from possession of his assets due to protection of creditors' rights. Consequently as per Article 1264 of Civil Law, "confession of an insolvent or bankrupt person regarding his assets before the judge is not effective". Second, a principle has been provided for distinguishing effective confession: the one who owns something does own its confession.

Second Clause: The Conditions of Legal Person as the Interrogated Person

Civil law has provided no rule for legal persons' confession. However the scholars' doctrine has compensated this deficiency to some extent. Some lawyers (Dolatshahi, 1963) have not regarded the confession of state organizations representatives effective if not complied with administrative formalities unless such a right has been considered in the organization rules. As regards confession of commercial companies' representatives, it is believed that when a manager has some rights and authorities for management he can confess in the framework of the same authorities and this confession against the company will be effective.

Chapter Three: The Conditions of the Subject of Interrogation

The affairs that can be the subject of interrogation must have two essential conditions.

First Clause: Essential Conditions of the Subject of Interrogation

The affairs that can be the subject of interrogation must have two essential conditions.
Attributable to the interrogated person
One the main conditions of the interrogation subjects is that it must be attributable to a person who is summoned (Alabudi, 1999) and some believe that interrogation is possible in any affairs attributable to the interrogated person even it is a criminal affair (the same) and as regards the legal person, these affairs must be attributable to the legal person rather than the person who is summoned as the representative or an informed person (the same).
Effectiveness of the subject of interrogation on the court decision
This condition is among the general rules of evidence investigation. Article 200 of Civil Procedure Law provides explicitly that, "evidence that is effective on the final decision is investigated in the court session...".


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