Defendants, and the Phenomenon Of Slackness in Litigation-المدعى عليه وظاهرة البطء في التقاضي
This research tackles a common phenomenon, slackness in litigation, focusing on one of its generators “the defendant” and his role in stirring it up.
The researcher casts the most important forms of defendant's misuse of his right of defense before the first degree law-court, from the moment of informing him of the initiatory summon until the issue of sentence on it, offering the Egyptian legislator a number of suggestions, hoping that by applying them this phenomenon can be eliminated from this source 'the defendant" .
He also tackles the defendant's misuse of his right of being informed of the procedures, suggesting the necessity of forbidding him from misusing the appeal due to forgery life the summon is delivered to anyone living with him) as a means of hindering the processing of the case, by making the summoned identify the receiver of the summing via his identity or family card and recording its number and issuing authority in the original summon, and explaining the receiver’s relation to the summoned. The researcher also supports the opinion which considers the summoned refusal to receive the summon at his official residence as a "personal summon", demonstrating supporting evidences persuading its validity.
Whit regard to the defendant's misuse of his right in demanding adjournment, the researcher intimated that the increase in adjournment of cases is related to two reasons: (i) the absence of clear legislative policy to draw the route to justice; (ii) litigants, defendants in particular. In order to prevent cause (ii) the researcher thinks that increasing the amount of fine in the case of either party submitting in the first hearing a document which could have been submitted in the period stipulated under article (65) of Egyptian Procedures Code, if its acceptance results in adjourning the hearing, the court fines him not less than 30 pounds, but not exceeding 1000 pounds.
The researcher assumes that, in respect of defendant's misuse of his right to reject the judge, what encourages the increase of such rejection requests is the worthlessness of the penal ty defined by the legislator for non-acceptance, refusal or loss/waiver of right to reject, of the rejection request . To close this cause of adjournment, he proposes that in above instances the law court imposes affine of not less them 100 Pounds, but not to exceed 10,000 Pounds, or imprisonment of not less than one week, but not to exceed one month. But if the rejection request was based upon article 148 of the Egyptian procedures Code, the law court must impose both of the fine and imprisonment.
Finally, with regard to defendant’s misuse of his right in alleging forgery, the researcher confirms that the majority of appeals due to forgery are of malicious nature, based upon actual confirmations, Since the legislator did not enforce imposing a
fine except in the two cases of the collapse or rejection of forgery allegation, and due to the division in opinion upon the possibility of imposing a fine upon the party alleging forgery who waives his allegation after lengthy procedures before the law courts, the researcher supports the idea that a fine must be imposed here, even the Egyptian legislator must impose an imprisonment penalty upon the party whose misuse of his rights under the stipulations of law are proved to be for the purpose of harming others.
Mahmoud, prof. Dr. Ahmed Sedky
"Defendants, and the Phenomenon Of Slackness in Litigation-المدعى عليه وظاهرة البطء في التقاضي,"
UAEU Law Journal: Vol. 1996:
10, Article 3.
Available at: https://scholarworks.uaeu.ac.ae/sharia_and_law/vol1996/iss10/3