Закон № 40 2002 года «О гражданском процессе и исполнении судебных решений», Йемен

Chapter III
The Judge Rule & Authority

Article (7)

The judge shall be appointed as per stated in the Judicial Authority Law.

Article (8) The judge shall adhere to the effective laws and he/she must apply their provisions.

Article (9) The judge, in his/her rule, shall be restricted to the decision of his/her appointment, representation or replacement except for what has been excluded by a special text in this law.

Article (10) The judge may not adjudicate according to his/her knowledge except for what arrives to him/her through his/her judicial council. The judge must adjudicate on that basis.

Article (11) If the judicial panel is formed of more than one judge, the judges should meet to consider the case and adjudicate on it. If the judges disagree on the judgment, the decision of the majority of judges shall be taken as per stated in this law.

Article (12) The judge may not open a dispute that was already judged upon by a sentence from a judicial authority or an arbitrator unless the law states otherwise.

Article (13) The judge may not adjudicate after his rule ends no matter what the reason is except for cases not settled before issuing the decision of his/her transfer, representation or retirement.

Article (14) The judge is prohibited from being a representative or an arbitrator for a case seen in the same court he works in.

Article (15) Violating articles (9, 11, 12, and 13) of this Chapter results in cessation of judicial work and all its consequences.

Chapter IV
Governing Principles of Adjudication & Litigation

Article (16) Litigants are equal in practicing the right of litigation and the judge shall be obliged to apply the principle of equality between litigants in this right following Sharia (Islamic Law) and the effective laws.

Article (17) The rights of litigation and defense are protected in the court as per the provisions of the law.

Article (18) The practice of litigation right is based on good will.

Article (19) The judge should maintain the principle of confrontation during litigation and ensure his/her respect by the litigants.

Article (20) The judge should make sure that justice is applied and in order to do that, he/she may monitor the litigants in applying the procedures as per the law.

Article (21) The judge in his/her adjudication is restricted to neutrality.

Article (22) The basis of litigation is to be on two levels (first instance court, appeal court) except for what has been excluded by a text of law.

Article (23)

a.

The court sessions are held in public except for what has been excluded by a text of law.

b.

Pleading shall basically be oral, and it may be in writing.

Article (24) The judge may not refrain from judging upon cases he/she was assigned to without legal excuse. Otherwise the judge shall be deemed disobedient to justice. The party concerned may notify the judge via summoner with the knowledge of the head of the appeal court to which he/s he belongs.

Article (25) A foreigner enjoys judicial protection in front of Yemeni courts according to Sharia and law.

Chapter VI
Domicile & Place of Residence

Article (33) Domicile is the place where a person usually lives and practices his/her normal life, collects his/her money and settles financial dues, and the place where a person practices a trade, craft, profession, or job is his/her domicile to run such businesses.

Article (34) A person may have more than one domicile at the same time and he/she may have no domicile too.

Article (35) The domicile of an underage and the like shall legally be the domicile of his/her representative, be the representative a guardian or curator, and the domicile of the estates before the distribution shall be the last domicile of the deceased person.

Article (36) The residence of companies, societies, and existing institutions or those under liquidation shall be their main administration residence and its branch shall be its residence in matters related to the branch.

Article (37) A domicile or a chosen place may be taken to carry out a specific legal action with the agreement of the other party in writing or by the other party announcing it officially. The place chosen shall be considered the residence of all that relates to this action including the agreement implementation procedures unless it was put forward as a condition that the place is excluded for doing certain actions but not others.

Article (38) Residence is the place where a person lives in temporarily for a contingent work or special circumstance.

Chapter VII
Written Summons

Article (39) Every summons for litigants or witnesses should be through the summoner or the person concerned at necessity unless stated otherwise by law.

Article (40)

A notification or sommons may not take place before six in the morning, after six in the afternoon nor in public holidays except in necessary cases as directed by the head of the court.

Article (41) The document meant for summoning must include the following information:

1. The date of the summons (hour, day, month, and year).
2. The person requesting the summons, his/her title, job, and domicile.
3. The person to summon, his/her title, job, and domicile.
4. The purpose of the summons.
5. The name of the person who received the summons, his/her signature, stamp, thumb print or proven refusal to receive the summons with the reason.
6. The name of the summoner and the signature of the witnesses, if available, on a copy of the summons.

Article (42) The summoner or the person concerned presents the summons to the litigant wherever he/she is. In case it is impossible, the summons then shall be submitted to his/her representative or in his/her domicile. In case of refusal, the summons is presented by the

∗

‘elder’ of the zone or by the police station, if available, and a clarification shall be taken from the elder with witnesses.

Article (43) If law compelled the litigant to select a domicile and he/she did not, or his/her information was incomplete or incorrect, then the summons may be attached to the court’s bulletin board with all the papers that were to be sent to his/her selected domicile. If the litigant cancelled his/her original or selected domicile without the other litigant’s knowledge, the summons becomes valid and the papers are submitted to the elder of the zone or village if available.

Article (44) Copies of papers shall be submitted to the bodies as follows:

1. To ministers, to heads of bodies or authorities, to governors or their representatives as per their specialty and relation to the papers concerning the state.
2. To the legal representative of the legal person or his/her legally authorized representative.
3. In a company’s administration office, to one of the general partners, to chairperson, to the manager or to their legal representative. If the company does not have an administration center, then to the domicile of the above mentioned people or to the company’s legal representative.

∗

Elder refers to ‘Akil Al Harah’ in Arabic. ‘Akil Al Harah’ is and elder in each zone officially employed and recognized by the government.

1. To the branch or the agent of the foreign company.
2. As for the personnel of security and armed forces, to the authorized head of unit or his representative.
3. As for prisoners, to the prison director.
4. As for sailors or ship workers, to the captain.
5. To the department concerned at the Ministry of Foreign Affairs to convey it through diplomatic ways to the person of known residence abroad if he/she does not have authorized representative to receive a copy of the papers in the Republic of Yemen. The court may use the way it deems suitable.

Article (45) If the person to be notified has left his/her domicile and his/her domicile becomes unknown within or outside Yemen, they must be notified through advertisement in one of the daily official newspapers three consecutive times at the expense of the party requesting the notification.

Articles (46) If notification is made outside the coverage area of the court, the papers are sent to the court in whose area the notification locates.

First Section
Litigation in a Court of Law

Chapter I
Claim & Acceptance Conditions

Article (70) A claim shall be the legitimate legal means for every claimant or defendant to be raised to the judge to decide upon according to legitimate and legal rules.

Article (71) To accept a claim, it must be submitted to the court via valid procedures as per the timing stated in the law. If the court finds out faults or invalidity in the procedures, it shall order their completion and correction.

Article (72) The court shall decide not to accept the claim formally if the claimant fails to complete or correct the procedure on the time decided upon by law.

Article (73) A foreigner shall be welcome to litigate in a court of law once all eligibility conditions are available according to the Yemeni law even if he/she is not eligible in their country’s law. The court may impose any guarantees it sees to accept requests from the foreigner in the cases the court is convinced that he/she has to make available.

Article (74)

No one should represent a litigant in his/her capacity as a representative in the claims without a power of attorney, guardianship or wardship.

Article (75) A claim, request or plea shall not be accepted if its owner does not have an existing interest endorsed by law. However, the potential interest is enough if the purpose of the claim is precautionary measure to push back an imminent danger or to document a right whose proof is feared to get lost during dispute.

Article (76) The court shall reject a claim, request or plea, if it finds out (even by itself) that there is no interest or character in it at any stage of the litigation.

Article (77) A claim will not be accepted if it has had a verdict before and shall be considered the same previous claim if the parties are the same, the subject matter of the claim (the right demanded) is the same, the litigants are the same, and the reason of raising the claim (which is the legal work on which the same right demanding is based) is the same. A claim shall not be accepted if there is any other prevention stated by effective laws.

Part Two
Specialization
Chapter I
International Specialization

Article (78) Yemeni courts shall be specialized in claims raised against a Yemeni even if he/she does not have a residence or domicile in Yemen except for claims concerning real estate abroad.

Article (79) Yemeni courts shall be specialized in claims raised against a foreigner who has a residence or domicile in Yemen except for claims concerning real estate abroad.

Article (80) Yemeni courts shall be specialized in claims raised against a foreigner who does not have a domicile in Yemen in the following cases:

1. If he/she has a selected domicile in Yemen.
2. If the claim is concerning money in Yemen or if it concerns a commitment taken in Yemen or to be compulsorily implemented in Yemen or if it concerns bankruptcy declared in Yemen.
3. If the claim concerns an alimony for a mother or a child if they live in Yemen.
4. If the claim concerns the ancestry of a child or his/her guardianship once the child is living in Yemen.

∗

1. If the claim concerns an issue of personal status and the Yemeni law must be applied therein
2. If the claim concerns an inheritance and the distribution of inheritance started in Yemen or the testator is Yemeni and some or all the money of the inheritance is in Yemen.
3. If one of the respondents has a domicile or residence in Yemen.

Article (81) Yemeni courts shall specialize in judging a claim even if the claim is not in its area of coverage as per previous articles if the respondent accepted the court illicitly or explicitly.

Article (82) Yemeni courts shall specialize in judging primary claims and accidental requests if they have relationship with the original claims.

Article (83) Yemeni courts shall specialize in giving order temporary and precautionary measures to be executed in Yemen even if they are not related to the original claim.

Article (84) If a claim is raised at Yemeni courts and the claim is not the specialty of Yemeni courts, Yemeni courts shall decide disengagement from the claim automatically.

Chapter IV
Specialization according Type pf Claim

Article (87) The Supreme Court shall specialize in taking an objection for cassation or ratifying judgments coming from appeal courts and courts of first instance in cases decided by law.

Article (88) Appeal courts shall specialize in judging appeal cases raised on judgments issued by courts of first instance.

Article (89)

1. Courts of first instance shall specialize in giving initial judgment on all claims raised to it no matter what their value or the type is.
2. Establishing a court of first instance specialized in looking into a special type of claims makes its authority exclusive on that type and so it may not look into other claims unless they are inseparably related an original claim raised in front of this court.

∗

Personal status is a government department responsible for issuance of identification certificates, birth certificates, etc for the citizens.

Article (90) A court shall automatically judge its nonspecialization according to type of claim if it finds out the same according to the provisions of this chapter.

Article (91) With consideration of what is stated in the Judicial Authority Law, the distribution of specialization of looking into cases between the panels of the court within the same court or between courts of the same level shall not be considered the same specialization type stated in this chapter.

Chapter IV
Specialization according to Location

Article (92) Specialization shall be according to the location of the court and its coverage area for the respondent’s domicile or his/her temporary residence unless stated otherwise by law. If there are more than one respondent, the court concerned shall be chosen by the claimant if one of the respondents’ domicile locates in its circle and other respondents are summoned to it.

Article (93) In real estate related disputes, the concerned court shall be the one that all or most of the estate in dispute locates within its circle.

Article (94) In bankruptcy cases, the concerned court shall be the one that judged it.

Article (95) In commercial materials, the concerned court shall be the one where the respondent locates, or the court in whose circle the agreement was made or executed fully or partially or the court the agreement states execution in its circle.

Article (96) In disputes related to supplies, constructions, rentals, work and workers fees, the court specialized shall be the one in whose circle the respondent resides or it shall be the court in which agreement was made or implemented in its circle once the claimant locates there.

Article (97) In claims related to expenses, the court concerned shall be the one in whose circle the respondent or claimant resides.

Article (98) In claims of taking temporary measure, specialization shall be for the court in whose circle the respondent resides or the court in whose circle the temporary measure has been taken. Courts shall look into all claims related to building rentals expediently.

Article (99)

The court looking into a claim based on location shall specialize in accidental requests or claims related to it.

Article (100) If the respondent does not have a domicile or residence in the Republic of Yemen and designation of court was not easy according to the previous articles, specialization shall be given to the court in whose circle the domicile or residence of the claimant locates. If he/she does not have a domicile or residence in the Republic of Yemen, specialization shall be given to the Capital’s courts (Sana’a courts).

Article (101) The two parties may agree in advance on the specialization of a certain court. The two parties may also agree, while looking into their claim, to transfer their case to another court. The former court shall decide the transfer to the latter one with consideration of qualitative specialization of courts. The court, to which the case was transferred, must decide on the claim.

Part III
Claims & their Processing

Chapter I
Bringing to Proceedings

Article (103) A claim shall be submitted in writing.

Article (104) A claim shall be raised through an original document and a number of copies matching the number of respondents. The original claim document should include the following:

1. The name of the claimant, title and domicile
2. The name of respondent, title and domicile. If he/she does not have a known domicile, then his/her last domicile is taken.
3. The date of submitting the claim.
4. The name of the court in which the claim is raised.
5. Stating a chosen residence in the city of the court if he/she does not have one.
6. Brief but complete statement about the subject matter of the claim with all evidence and the demands of the claimant with their types (whether urgent or norman( �/span> attached to the statement and all put in a file.
7. The signature of the claimant or his/her attorney with the date of power of attorney and the name of the authority that ratified it. The petition with its related papers shall all be put into a file and submitted to the specialized clerk. If the claim was raised orally,

the clerk should document the provided data as per dictated by the claimant in a petition which shall be put into the claim file and should be signed by the claimant or by his/her attorney. The clerk shall revise the papers to make sure they fulfill the requirements in terms of data and number of papers. The clerk then shall order them chronologically, record them in the court’s register, and specify a date for the session as per decided by the head of the court. The clerk shall document the number of the claim and the date of the session on the original claimant’s petition as well as on the back of the file. The clerk then shall submit the original petition and its copy to its presenter to notify it by him/herself or through summons servers and keep a copy for him/herself in the file after stamping the papers with the court’s stamp. If the claim was not notified to the respondent within 30 days from raising it, it shall be considered as if there was nothing.

Article (105) The session clerk shall prepare a special file to keep the cases of the new session and the postponed ones as per their incoming date or postponement date. The clerk shall give cases sequenced numbers accordingly and on that basis shall prepare the court’s agenda of sessions. After the clerk receives the original petition after announcing it to the respondent, he/she shall file it in the special claim file.

Article (106) The respondent must reply, orally or in writing, to the claim after announcing it to him/her. The respondent must submit his/her reply in the specified session. If the reply is made orally, the clerk shall document it in summons signed by the respondent and filed in the claim file.

Article (107) Every clerk receiving documents or papers shall give the necessary receipt and document the submitted papers in the file.

Chapter II
Attendance, Absence & Appointments

Article (108) The respondent, his/her attorney or both of them should come to court on the specified date for looking into the claim at eight in the morning. Litigants shall observe calling their names and attend the session once they hear their names.

Article (109) Taking into consideration the appointments mentioned in articles (110, 111) of this law, the attendance time is as follows:

1. At the court of first instance, 10 days that may be reduced to 3 days.
2. At the court of appeal, 15 days that may be reduced to 10 days.
3. At the supreme court, 20 days that may be reduced to 10 days
4. In urgent cases, 24 hours that may be reduced to from one hour to another by an order from the head of the court provided interest is achieved and the litigant is notified.

Article (110) A distance time is added to the time of the appointment as follows:

1. A day for every distance of (25km), and another day for the remaining 15 km or more.
2. 15 days for those who live in the border areas and mountainous areas which do not have access to modern transport means.
3. 60 days for those who live abroad.

Article (111) Official and judicial holidays stop the appointments.

Article (112) If the litigants fail to attend their session on their decided date after calling them and delaying their case to the end of the day, the court shall postpone the case 60 days and this shall be pointed out in the session record book. If the claimant does not attend in the meanwhile, the court shall decide the cancellation of the case and consider it as if it did not exist.