ABUSE OF RIGHTS DURING LEGAL PROCEEDINGS (COMPARATIVE STUDY OF ISLAMIC JURISPRUDENCE AND CIVIL LAW)
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Abstract
The procedural right holder has the right to use it within the limits set for him to achieve its purpose without any deviation. However, it may use methods that involve procrastination, distortion, procrastination, and the use of the right in litigation procedures other than what they are legislated for. Because the right of defense is permissible for all, except for those whose intransigence and deviation has been proven to harm his opponent. This is considered exaggeration and abuse in the use of the right and the damage resulting from it, which, in turn, harms the applicant for compensation within the jurisdiction of the judiciary. The right holder does not have an absolute power to use his right as he likes, for the law limits his authority to legitimate ends and draws limits for his right, because use of right without a limit is an outrageous injustice, and there is no difference between the objective right and the procedural right, since the latter is being used as a means of violating the opponent.
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References
Egyptian civil law and UAE civil law.
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Same source, p.
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Surah R / Verse 26
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See: Dr. Syed Ahmed Mahmoud, Litigation with a case and without a case, Dar Al-Nahda Al-Arabiya, Cairo, 1993, p. 2 and beyond
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See: Dr. Ahmed Ibrahim Abdel-Tawab, The General Theory of Abuse of the Procedural Right, 1st Edition, Dar Al-Nahda Al-Arabiya, Cairo, 2005-2006, pp. 25, p. 107 and beyond
seen d. Fathi Ismail Wali, Mediator in the Civil Judiciary, Dar Al-Nahda Al-Arabiya, Cairo, 2001, p. 299. For more on this trend, see: Dr. Nabil Ismail Omar, The Fall of the Right to Take Action, Mansha’at al-Maaref, Alexandria, 1989, p. 24
It is worth noting that a distinction should be made between the persons of the case and its parties, as the party means everyone from whom or to whom judicial requests are directed, unlike the persons of the lawsuit. Nabil Ismail Omar, The Fall, Rise, Transition and Transformation of Procedural Centers in the Pleadings Law, New University Publishing House, Alexandria, 1, 1999, p. 5
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See: Dr. Osama Ahmed Shawky El-Meligy, Civil Procedures for Forced Execution, Dar Al-Nahda Al-Arabiya, Cairo, 2002, p. 27
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It is known that the machine does not have a single nature, but rather it may be an authority, it may be a right or it may be a license, quoting from: Dr. Fathi Ismail Wali, The Theory of Invalidity in the Procedure Code, Origin of Knowledge, Alexandria, 1959, p. 87
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Article (3-4-6) of the Iraqi Pleadings Law, Article 3 of the Egyptian Pleadings Law No. (13) of 1968, as amended, and Article 17 of the UAE Procedures Law
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Corresponding to Article 130 (1) of the Egyptian Code of Pleadings, which states: “The litigation process is interrupted by virtue of the law by the death of one of the litigants, or by his loss of litigation capacity, or by the lapse of the capacity of the representative who was engaged in the litigation, unless the case has been prepared for judgment on its merits and Article” 103/1 of the UAE Civil Procedures Law, which says: “The litigation process is interrupted by virtue of the law by the death of one of the litigants, his loss of capacity to litigation, or the lapse of the capacity of the representative who was engaging in the litigation on his behalf, unless something of that happened after the pleading in the case was closed.”
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Ali Obaid Owaid, previous source, pg.
Same source, pg.
Decision of the Baghdad Court of Appeal / Rusafa in its discriminatory capacity No. 158 / discriminatory, on 4/13/2009 unpublished
Article (115) of the Egyptian Code of Pleadings states: “If the court considers that the plea for non-acceptance of a defect in the defendant’s capacity is based on a sound basis, the case shall be adjourned to notify the person with the capacity.” Corresponding to Article (91/2) of the UAE Civil Procedures Law
Civil Cassation No. 524 of 37 BC - Session 25/1/1973, Technical Office 24, p. 108, Ahmed Muhammad Abdul-Sadiq, Judicial Reference in the Procedure Code, Part 1, Edition, without publisher and place of publication, 2008 p. 51
Among the applications of the Egyptian Court of Cassation is that “no lawsuit shall be accepted, nor shall any request in which the owner does not have a personal, direct and existing interest recognized by law shall be accepted.” Civil Cassation No. 495, for the year 13 BC - session 4/13/2004, Ahmed Muhammad Abd al-Sadiq, Judicial Reference in the Pleadings Law, Part 1, Edition 1, without publisher and place of publication, 2008, p. 37.
Dr. Al-Sharqawi defines the interest as (the need for the law to protect the right that has been attacked or threatened with assault and the benefit obtained by the claimant by achieving protection. Abdel Moneim Al-Sharqawi, Theory of Interest in the Case, Ph.D. thesis, Cairo, 1947, p. 56
The decision of the third expanded panel in the Court of Cassation stated: The brother of the deceased may file a lawsuit against her husband to support his divorce from her and to pay his dispute to him in her inheritance because the plaintiff’s litigation is based on a direct legal interest and is based on Articles Six and Seven of the Civil Procedure Code.
Resolution No. 421 Second Extended Body -1980 Date of Resolution 25/7/1981, Journal of Judicial Judgments, Third Issue, 1981, p. (41).
Muhammad Azmi Al-Bakri, Defenses in the Law of Pleadings, Mahmoud House for Publishing and Distribution, Amman, i, 2002, p. 947.
Advisor. Sayed Hassan Al-Baghal, Encyclopedia of Al-Mutwel Explanation of the Law of Pleadings, Alam Al-Kutub Library, Volume One, 2001, p. 290
Adham Wahib Al-Nadawy, Civil Procedures, 3rd Edition, Al-Atak Book Industry, Cairo, Baghdad, 2011, p. 14
Mahmoud, Muhammad Hashem, Exhaustion of the Civil Judge’s Jurisdiction, Without a Publishing House, Cairo, 1980, p. 48.
Consider Article (4) of Public Prosecution Law No. 49 of 2017
Ajyad Thamer Nayef, Explanation of the Provisions of Pleadings, previous source, p. 82.
Article (133) of the Iraqi Evidence Law, Article (136) of the Egyptian Evidence Law, Article (69) of the Evidence Law in UAE Civil and Commercial Transactions
Abbas Zaboun Obaid, Explanation of the Provisions of the Iraqi Evidence Law, Dar Al-Kutub for Printing and Publishing, Mosul, 1997, p. 280