نوع مقاله : مقاله علمی - پژوهشی
نویسندگان
1 دانشجوی دکتری حقوق خصوصی دانشکدۀ حقوق دانشگاه تهران (پردیس فارابی)
2 دانشیار گروه حقوق دانشکدۀ حقوق و علوم سیاسی دانشگاه فردوسی مشهد
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسندگان [English]
“Inopposability” is a situation contrary to the principle and exception to "opposability" whereby the indirect effect of the legal element is disappeared against third parties, meaning that third parties obtain the right to reject and ignore the inopposable legal element. In the scope of Iranian commercial law, there are numerous examples in which "inopposability" is mentioned. In spite of these many instances, it is unclear who, against whom, and how can take advantage of the inopposability, what are the effects of inopposability and how is this situation disappeared. In general, it can be said that the general rules governing inopposability in Iranian law have been ignored.
To answer the above questions and provide general rules of inopposability in commercial law, we should start with the examples of inopposability and then classify them. Numerous examples of this notion in commercial law, can be categorized, based on the legislator's intent to establish the inopposability, to inopposability due to non-disclosure, inopposability due to defect in form, inopposability due to clandestinity, inopposability of nullity and inopposability with the aim of maximizing third party protection.
In order to analyze the general rules of inopposability, in answering the question of who is in favor of the inopposability situation, it should be said that the beneficiaries of inopposability are third parties affected by the legal element, that the legislator grants them the right to choose or right to criticize such a legal element and in principle their "goodwill" is a condition for using it. In answering the question of against who this legal situation is opposable, it should be said that inopposability is opposable before everyone, either to the direct or third parties in such a way that in the assumption of conflict of interest between third parties beneficiaries of inopposability and other third parties, the interest of first persons must be prioritized. In examining how to use this legal situation, it can be said that interested third parties can suffice to present their right in the form of objection. That is, if the third party is the defendant of litigation, it is sufficient to refuse the action brought against himself and, if the third party is the plaintiff of litigation, it is sufficient to refuse the objection due to the opposability of legal element with inopposability.
The effects of this legal situation on third parties include the disappearance of the harmful effects of the legal element on said persons. Therefore, if the legal element is not harmful to the third party but vice versa is in his favor, the inopposability is disappeared. In the case of the effects of this legal situation on direct parties, since the direct effects of the legal element on its direct parties are not harmful to third parties, such effects are retained and in fact towards direct persons, theoretically, the situation is as if there is no inopposability.
Finally, it should be noted that , contrary to absolute nullity, inopposabilityis a deteriorating situation. In cases where the inopposability is due to the failure to comply with the formalities, this situation is generally resolved by subsequent observance of required formalities. Since the legislator has in principle considered the goodwill of third parties as a condition in establishing inopposability, this situation has also been disappeared in the assumption of third party awareness. In addition, due to the right to choose, as a result of the inopposability, for third party, one of the disappearance of the inopposability may be the waiver of the said persons from inopposability, or in other words, waiver their right to criticize.
کلیدواژهها [English]
الف) فارسی
ب) خارجی
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