پژوهشنامه حقوق تطبیقی (Mar 2024)
Refusal to Adjudication due to the Judge's Recuse Comparative Study in French Law
Abstract
When someone exercises his right of action and the proceedings begin, any interruption and obstruction in this work has a negative effect and is prohibited. Despite this, the reasons for recuse the judge, which is rooted in the two principles of the impartiality of the judge and the independence of the court, in some way create an obstacle in the process of proceedings, so the incorrect implementation of that can affect the right to action by sending the case to other judges or courts in which the litigants to be felt upset about the proceedings that he does not consider himself recused. These recuse causes, which are contained in the law, if they are implemented in accordance with that principles, there will be a kind of balance in the implementation of the principles, which will not interfere with litigation, nor invalidate the proceedings and the judgment. With this definition, not including a direction in the form of recuse to the judge does not prevent it from being presented as a defense in the process of complaining about the reviewing of the decision, which is a new point of view in this article. Also, the six unification decisions of the Supreme Court, which have been issued regarding the clarification of hard cases of recuse and the effect of refusal to adjudication, although it has been able to solve the ambiguities of the laws to a large extent, it does not answer all the questions surrounding these aspects and shortcomings remain. Some unification decisions of the Supreme Court, while important, do not have a solution regarding the implementation of the principles of neutrality and independence, and others have been issued due to the misuse of the judge's recuse, while comparative studies can provide useful approaches to reform laws and regulations.
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