Judicial Law Views Quarterly (Law Views)

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moloudi M, hamzeh howeyda M. Procedural Defence in Civil Procedure. دیدگاه‌های حقوقی 2018; 23 (82) :245-259
URL: http://jlviews2.ujsas.ac.ir/article-1-339-en.html

The defense against plaintiff can be done in two deferent ways: denial of claim and challenging it (substantive defense) and objection to violation of procedural laws (formal or procedural defence). Each of these methods has its own nature and consequences. The subject of this paper is determination the scope of procedural defense and finding a criterion recognizing it from substantive defense. Taking it to consideration that the base of procedural defense is violation of formal rules, the criterion of recognition must be followed in the merit of these rules. Thus, the deference between procedural and substantive defense refers to the issue that whenever judge based on defense can express his opinion about substance we are facing with a substantive defense. But if the defense does not enable the judge to recognize the beneficial party, it will be a procedural defense. Lack of attention to this criterion has obscured recognition of defense methods in the legal provision, judicial procedure and doctrine.