دادرسی خصوصی؛ چشم اندازی نوین در عرصه حل و فصل اختلافات تجاری در حقوق آمریکا با نگاهی به حقوق ایران (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
اختلافات تجاری همواره با چالش هایی از قبیل اطاله دادرسی، پیچیدگی و هزینه های بالا مواجه بوده که در پاسخ به این چالش ها، شیوه های جایگزین حل و فصل اختلافات ازجمله «دادرسی خصوصی» به منزله روشی نوین در حقوق آمریکا، توجه ویژه ای را به خود جلب کرده است؛ به نحوی که امروز چشم پوشی از این روش جدید و اثرگذار در حل و فصل دعاوی تجاری، نه تنها موجب رشد و تعالی نیست، بلکه شکست در این زمینه حتمی است. پژوهش حاضر، که با روش توصیفی تحلیلی تدوین یافته، بعد از ابهام زدایی از پاره ای از موضوعات نتیجه می گیرد ویژگی هایی همچون «داوطلبانه بودن»؛ «غیررسمی بودن»؛ «آگاهی محرمانه» و «تسریع در حل اختلاف» در حل و فصل دعاوی تجاری مؤثر بوده است. همچنین بعد از معرفی پاره ای از چالش ها در استفاده از نهاد مذکور و این که هر نهادی عاری از چالش نیست، راهکارهای مطلوبی از قبیل انتخاب دقیق شخص ثالثِ بی طرف در دادرسی خصوصی،جمع آوری مستندات، برقراری انتظارات واقع بینانه، ارتباط صادقانه به همراه تمرکز بر منافع، محدود کردن اطلاعات افشا شده به منزله راهکارهایی در راستای برون رفت از چالش ها، شناسایی و معرفی شده که درصورت توجه به مبانی مطرح شده، امکان تأسیس آن در حقوق ایران وجود دارد.Private Proceedings: A New Perspective in the Field of Resolving Commercial Disputes in American Law with a Look at Iranian Law
Commercial disputes have always faced challenges such as delay in proceedings, complexity and high costs, and in response to these challenges, alternative dispute resolution methods, including "private litigation" as a new method in American law, have attracted special attention in a way Today, ignoring this new and effective method in resolving commercial claims, not only does not lead to growth and excellence, but failure in this field is certain. The current research, which was compiled with a descriptive-analytical method after disambiguation of some topics, concludes that characteristics such as "volunteering,"; "informality,"; "Confidential information," and "expediting dispute resolution" have been effective in resolving commercial claims. Also, after introducing some of the challenges in using the said institution and that every institution is not free from challenges, appropriate solutions such as; careful selection of an impartial third party in private proceedings; Collecting documents; setting realistic expectations; honest communication with a focus on benefits; Limiting the disclosed information as a way out of the challenges has been identified and introduced, which can be established in Iranian law if the above principles are taken into consideration. Keywords: Private Litigation, Alternative Dispute Resolution Methods, Delay of Proceedings, Neutral Third Party, Accelerate Dispute Resolution 1. Introduction Disputes are an inseparable part of the business world and there is no escaping it. In the meantime, the quick and fair resolution of commercial disputes has played an essential role in social stability and economic prosperity, and the practice has shown that businessmen do not have a firm belief in the official judgment system and tend to settle their disputes. to use as quickly as possible, cheaply, and without the least challenge in the form of alternative methods of dispute resolution (ADR). Traditional legal systems, which are based on militancy, face many challenges, including delay in proceedings, complexity and high costs, which prevent this from being realized. The belligerent nature of traditional systems also creates fundamental concerns about justice. Also, this system's focus on the victory of one party and the defeat of the other party destroys the relations between the parties and instead of discovering the truth and reaching a solution that provides the interests of both parties. Kand emphasizes on compliance with the law and procedures. Private proceedings were created in response to traditional proceedings (court and judge) in response to cumbersome procedures, costs and delays. The roots of the aforementioned proceedings can be found in the case of Telecredit and TR Debilio in America half a century ago in 1977, and after that it was popularized in an evolved form in American law. (Darvishi Hoyda, 1402: 23) From the point of view of comparative analysis, the institution of conciliation in Iranian law can be considered to be very close to the institution of private proceedings, while there are differences between these two institutions with the explanation that according to Article 180 of Q.A. D.M. Conciliation can be established at any stage of the proceedings or even outside the court, while private proceedings have no relation to judicial institutions and are completely independent. Also, another aspect of the difference between the two aforementioned institutions is in the selection of a third party, in a way that in conciliation, the third party can be any person, but in private proceedings, the third party to resolve the dispute is usually chosen among experts, lawyers, experts, or old judges. (Jason, 2010: 113, on the other hand, the compromise agreement is largely set with the intention of resolving the differences between the parties to the dispute, and its ultimate goal is to reach a final solution, but it is possible in private proceedings for individuals to test themselves and the other party in line with in future lawsuits, they should use private proceedings or guidance in order to untie the knot. In any case, the dispute should be untied in private proceedings as soon as possible by presenting the documents. The author believes that the meaning of private proceedings in general is to resolve all commercial disputes of individuals in an environment outside the court, in this method, the services of a third party are used to resolve the hostility away from any conflict and in the shortest possible time. The background of the research in the category of private litigation does not directly show a history, so in the research that has been conducted, this issue has been addressed less as a solution to commercial disputes, and in a way, the research literature has innovation in this regard. In the current research, the author, while disambiguating the issue, seeks to answer what are the characteristics of private proceedings? Second, how can private litigation settle commercial claims as a new method and be established in Iranian law? To find the answer, it is necessary for the research to follow a systematic theoretical framework. Therefore, to get familiar with this emerging concept under the first paragraph under the title; The knowledge of private proceedings, the concept, characteristics and implementation process of private proceedings have been researched, then in the second paragraph under the title of challenges and desirable solutions of private proceedings, firstly the challenges and then the favorable solutions are examined and finally in the third paragraph the manifestations of private proceedings that the mentioned institution in It will be able to resolve the dispute well. 2. Methodology The authors have tried to use primary sources (including laws, regulations, circulars, judicial decisions, etc.) and secondary sources (such as books and articles, dissertations, research reports, etc.) in the upcoming research. Collect and collect information. Scientific research data centers, official and authoritative websites, libraries and similar resources. And considering that the topic of private litigation is in American law and its feasibility is established in Iranian law, it has been tried to discuss some comparative issues in American law. 3. Results and Discussion Alternative methods of dispute resolution (ADR) such as "private proceedings" as considered in the American legal system have not been applied in Iranian law; And the main reason for this neglect of the category of private proceedings in Iranian law can include; He considered the lack of a necessary legal framework, the unknown nature of ADR as a method of private proceedings in the society, cultural causes and the belief in the lack of efficiency of private proceedings in asserting rights and resolving disputes, and at the same time the better efficiency of courts and the firm implementation of court decisions and orders. . Although private proceedings cannot be considered as a cure for all the inadequacies and problems of judicial proceedings, but private proceedings have the ability and capacity to resolve an important and significant part of commercial claims in an expert manner. Due to its non-aggressive and informal aspect, private proceedings save time and money and avoid lawsuits that may last months or even years and cause very heavy legal expenses. Also, it has limited the time required to provide evidence, presentations and the number of main witnesses, and as a result, the cost needed to resolve the dispute has also been reduced. On the other hand, as in the business world, time is wealth, and dispute resolution managers spend much less time compared to judicial proceedings. They spend on preparing and participating in hearings, and these advantages make people welcome to resolve commercial disputes. Therefore, with the spread of private proceedings in the form of using the capacity of arbitration institutions in Iranian law, it is possible to attract people's opinion in resolving commercial disputes by explaining the aforementioned benefits. This situation and the turn of people's opinion towards private proceedings will gradually reduce the number of courts and the desire to settle disputes through the said institution. The characteristics of private proceedings that have a positive effect on commercial lawsuits can be based on "voluntariness", "informality"; He considered "confidential information" and "expediting dispute resolution". Secondly, the said institution can, with Sirajrai, "agreement on private proceedings"; "preparation for private proceedings"; "Presentations in private proceedings"; "Negotiation in private proceedings" and "result" to resolve commercial disputes. Of course, it is necessary to explain that there are always challenges in this path, and solutions such as; "Careful selection of an impartial third party in private proceedings", "Collecting documents", "Establishing realistic expectations", "Honest communication with a focus on interests", "Limiting disclosed information" are presented by the author of this article, which if you pay attention to the aforementioned The possibility of establishing a private judicial institution in Iran's legal system does not seem unlikely. 4. Conclusions and Future Research Considering the fact that the foundations of Islamic jurisprudence emphasize the peaceful settlement of disputes away from conflict and based on peace and compromise, and the method of private proceedings is based on agreement (peace and compromise) and does not conflict with Sharia standards, and considering the density of existing cases In the courts and the consequences caused by this inflation, as well as the high sensitivity of commercial lawsuits and its role in the economy of the society, with the aim of using the capacities of private proceedings with the aim of solving a significant part of the lawsuits, the necessary planning and infrastructure should be done. In the first step, the most important step is to introduce this method in the society and clarify the benefits of its use, to provide the necessary grounds for the establishment of institutions active in the field of private litigation in commercial lawsuits and, most importantly, to pass appropriate laws regarding alternative methods of dispute resolution with the approach It is supporting such methods and persuading and encouraging people to use them. In the legislative process, one of the most important issues that must be taken into consideration by the legislator is the provision of a guarantee for the implementation of agreements resulting from the process of special proceedings in relation to commercial lawsuits. Therefore, the approval of regulations that guarantee the rights of the parties in this process and support the parties in reaching the result is necessary and necessary. The success of private proceedings in American law can be attributed to factors such as: flexibility, cooperation, voluntary nature and creativity of managers in implementing and proposing new methods of resolving commercial disputes in each case in a special way, and the use of these capacities can be seen as a special method in solving Commercial lawsuits in Iranian law, leading to a reduction in the density of cases in the courts, should be taken into consideration by the legislator. Therefore, while establishing the mentioned institution, it is necessary and necessary to pay attention to maintaining and expanding the aforementioned components, similar to American law, in order to obtain a similar answer in Iranian law.
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