Explanation of Article 358
The article was introduced to establish a prohibition on the purchase of disputed rights by individuals holding judicial positions or those connected to the judiciary. The first paragraph decided to prevent judges, members of the public prosecution, and those in equivalent positions such as investigators in the Oversight and Anti-Corruption Authority, as well as court employees, from purchasing for themselves the disputed right or part of it, whether the purchase is made in their names or using the names of others, which is known as a "pseudonym." The wisdom behind preventing these individuals from purchasing for themselves is to maintain their integrity and to avert suspicions that may surround their actions related to disputed rights in the judiciary.
The second paragraph decided to prevent the lawyer from purchasing in his name or in the name of others the disputed right or part of it whenever he is an agent in that right for one of the parties to the dispute, whether his agency is specific to that right or general including that right. However, if his agency does not include that right, he is not prevented from purchasing, and the dispute must be in the essence of the right or its subject, not in the claim or its execution. The wisdom behind preventing the lawyer from this action is to preserve the integrity of the legal profession and to avoid any suspicion; so that he does not exploit the trust of his client in him to persuade him to refrain from filing the lawsuit or proceeding with it, by misleading his client about the weakness of his position, and then purchasing the right from him at a low price.
The article, in its two paragraphs, clarified that the provisions mentioned in the first and second paragraphs are of public order; and the penalty for violating them is the absolute nullity of the sale contract; so each of the contracting parties and any interested party can invoke the nullity, and the court can rule on it on its own initiative. The general provisions established for nullity outlined in the first section of this system apply to the nullity of the contract.
The third paragraph clarified the meaning of the disputed right mentioned in the previous two paragraphs, which includes two scenarios: The first scenario is that its subject has been the subject of a lawsuit before the judiciary, whether in general or administrative courts, committees with judicial jurisdiction, or an arbitration body, and the lawsuit must be specific to the subject of the right. However, if the right is established and free of dispute, it is not considered disputed, even if the debtor obstructs the owner from obtaining it or complicates the procedures for execution on his property. The right remains disputed as long as the lawsuit is ongoing, and if it ends with a final judgment, the dispute over the right ceases, even if it is subject to appeal by extraordinary means such as cassation or a request for reconsideration, as long as it has not been actually appealed by either of these means. However, if it is appealed by either, the right becomes disputed again.
The second scenario is that a serious dispute has arisen regarding this right, even if no lawsuit has been filed before the judiciary.
Related To
Article 358
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A judge, a public prosecution member or a person of a similar capacity, or a court clerk, may not acquire, whether in his own name or in the name of another person, a litigious right or part thereof; if such acquisition is made, the contract shall be deemed null and void.
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A lawyer may not acquire, whether in his own name or in the name of another person, a litigious right or part thereof if his agency relates thereto; if such acquisition is made, the contract shall be deemed null and void.
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A right shall be deemed litigious if a lawsuit is filed regarding the subject thereof or if a dispute of merit relating to such right arises.