اسقاط حق تجدیدنظرخواهی در دادرسی مدنی

The possibility of appealing against the judgments issued in civil cases is a procedural right that, according to the principle, has been granted to litigants in order to ensure respect for the rights of defense, to provide the possibility of double-degree trial, and thus, reduce the amount of judicial faults. At the same time, the close connection of civil proceedings with the private rights of individuals has led to the recognition of the possibility of waiver of the right to appeal for the litigants. According to Article 333 of the Civil Procedure Code, if the parties have agreed in writing to waive the right to appeal, their appeal will not be heard. The aforesaid agreement is essentially a type of contract, the subject of which is the withdrawal of the right to appeal, and its effect appears in the finality of the issued decision. Most of the discussions that have been raised in this field so far have only focused on procedural aspects of the waiver of the right to appeal, and the substantive aspect of the issue has been analyzed less. In this article, a proper link has been established between procedural and substantive legal rules and the issues related to the waiver of the right to appeal have been examined and analyzed considering both categories of effective legal rules. Although the legislator has only specified the possibility of agreeing on the waiver of the right to appeal, but the private nature of the right to appeal in civil matters and the sovereignty of the will of the litigants, considering the general rules governing the unilateral legal acts, also acknowledges the possibility of unilateral waiver of the right to appeal. Unilateral or mutual waiver of the right to appeal is a formal legal act that must be done explicitly and in writing so that the decision is considered final. In addition, the general and fundamental conditions of legal acts are necessary to give validity to the unilateral waiver of the right (as an unilateral legal act) or agreement on the waiver of the right (as a contract).
In French law, an agreement on waiver of the right to appeal is possible only after a dispute has occurred. In Iranian law, although the phrase "litigants" in the text of Article 333 of the Civil Procedure Code appears in the possibility of waiver of the right to appeal during the proceedings, it seems that at least in contractual relations, it is possible to agree as a condition on waiving the right to appeal as to the judgment related to the possible future litigation. In this way, the allowed time regarding the agreement on the waiver of the right to appeal may be considered from the time of the dispute appearance until the expiry of the deadline for appeal, while the possibility of agreeing on the waiver of the right in contractual relations as a condition and before the dispute occurs, also seems to be confirmed. After the judgment is issued and until the end of the appeal deadline, it is possible to agree on waiver of the right to appeal, although in terms of knowing the outcome of the proceedings and the possibility of unilateral waiver of the right by the losing party, the agreement on the waiver of the right will be unreasonable or unnecessary. After the expiration of the appeal term and assuming that no appeal has been filed against the issued decision, the judgment will become final and the subsequent agreement of the parties on reviving the appealability of the decision will not be effective. Regarding the possibility or impossibility of waiving the right to appeal by the representatives of the litigants, there is ambiguity and doubt, but considering the scope of the powers of the various types of representatives, it seems that the action of the legal guardian to waive the right to appeal is generally subject to compliance with the interests of the principal and the agreement of judicial guardian with the other party regarding the waiver of the right to appeal may be treated as the composition of appealing litigation and requires the approval of the public prosecutor. Also, since the agreement on the waiver of the right to appeal is considered as composition on the appealing litigation, if the lawyer has the option of compromise, he can reconcile with the orher party on waiver of the right to appeal, but for the unilateral withdrawal of the right, it is necessary that such authority is specified independently in the power of attorney. The reason for adopting the latter opinion is that the lawyer's mission is to defend the client's rights in general, and the withdrawal of the right to appeal in terms of conflicting with the client's rights is out of the realm of "necessary powers for defense".
Assuming that the right to appeal has been waived unilaterally, the possibility of withdrawing from the said unilateral act is questionable in terms of the presumption of irrevocability governing unilateral legal acts, but it seems that the beneficiary can withdraw from the waiver of right before the decision is issued. Nevertheless, it is obvious that it will not be possible to withdraw from the unilateral waiver of the right after the decision has been issued, because the decision has been issued as a final judgment and the subsequent withdrawal will not be effective in this regard. Regarding the possibility of withdrawing from the agreement on waiver of the right to appeal, the principle of binding effect of contract prevents unilateral cancellation of the previous agreement, but it seems that mutual cancellation of the previous agreement may be admissible before the decision is issued by which the court's decision will be appealable. In this regard, it is not possible to cancel the agreement after the decision has been issued, and it has no effect on the revival of the right to appeal. If one of the litigants has waived the right to appeal and then the other party appeals, the possibility of request for appeal by the party who has already waived his right is questionable, and even though sometimes the appropriate adjudication at the appeal degree so requires, but the acceptance of the aforementioned arrangement requires a clear legal text, and in the absence of an explicit legal text, such a possibility seems unlikely. Finally, if the parties have validly agreed on the waiver of the right to appeal and the said agreement remains until the moment of issuing the decision, the decision of the court will be considered final and the appeal request will not be heard except in terms of the lack of absolute jurisdiction of the court issuing the decision or incompetence of the judge issuing the decision. In this case, contrary to the general rules of the appeal stage, the appeal request will be examined exclusively based on the cause relied on by the applicant (the claim of lack of jurisdiction as to the court or the judge issuing the decision) and other causes of the appeal, even if they exist, will not be considered by the appeal court.