الانعدام الإجرائي في قانون المرافعات والتنفيذ المدني اليمني : دراسة مقارنة مع بعض التشريعات العربية والشريعة الإسلامية

Abstract

The Partial absence in the Yemeni law of pleadings Comparative study with some Arab legislation and Islamic law This research concludes that the lack is based on the idea of non-existence and not on the idea of lack of health as in the invalidity; and this discrimination has many fundamental differences between lack and other procedural sanctions, in particular invalidity. Lack is a procedural penalty that strips procedural action from its existence when a corner or essential element of its logical or legal existence fails to produce or arrange its legal effects, It leads to the permanent inability of procedural action to arrange its legal effects no matter how long it passes, and does not accept correction, conversion and waiver, nor is it subject to any sanction or immunity. Hence the focus on the most serious procedural sanctions, which is "lack", which is a distinct and distinct penalty from other procedural sanctions. Despite the importance of the idea of lack and the seriousness of the consequences that result from it, however, the statutes in all countries did not move to try to establish rules or legal texts governing it, which led to differences between the jurisprudence and comparative judiciary on its provisions, and the absence of jurisprudence of trying to develop an integrated theory for it, therefore, the idea of lack, although it has found some of its supporters contributed to their writings in the establishment and consolidation of some of its bases, but this idea is not yet complete, its supporters have only unveiled for their features, and they did establishing of a brick to establish one of its walls and is still the same so far. However, the Yemeni legislator took the lead in approving and organizing the idea of execution in Law No. 22 of 2002 as amended by Law No. (2) Of 2010 as a separate independent procedural sanction, and that the Yemeni legislator was influenced by the Islamic jurisprudence, which was the first to establish the idea of the lack of words through synonyms, but the texts of the lack of organized has been marred by shortages and shortcomings and ambiguity. In addition, that the cases of absence stipulated in the Yemeni law of pleadings provided by the legislator, for example, but not limited, which means the cases of lack are not limited to the cases stipulated by the law, but include cases derived from the general criterion for lack of jurisprudence and judicature by view of the legal system as a whole, this criterion is a serious flaw that strips procedural action from one of its pillars or the basic elements necessary for its objective or formal existence. In order to reach the aim of research, it has been relying on the rooting of the theory of lack on the inductive method, while not forgetting the deductive approach, in an attempt to collect the pieces of this idea and its parts, and research in all aspects related to the jurisprudence and judicial, in order to root the rules and the rise of the particles to the colleges in an attempt to lay the foundations of this theory, taking into account some practical aspects, in addition, a three-part research plan was drawn up, The first section dealt with the meaning of the lack, in the second section the cases of lack, and in the third section the means of adhering to the effect and its effects, followed by concluding conclusions and recommendations.