A Comparative Study of the Necessity of Transformation of the Action through Third-Party Notice (Impleader) at the Appellate Stage in Iranian and French Law

Abstract

The purpose of this research is to examine the concept of the necessity of transformation of the action and the conditions for its realization in order to permit third-party impleader at the appellate stage, with a comparative study of French law. One of the incidental actions involving a third party is the action for third-party impleader. In a third-party impleader action, one of the litigants, based on certain reasons and interests, determines that a third person must be summoned into the case. The plaintiff or defendant who summons the third party is called the “impleading party,” and the third person is called the “impleaded party.” By bringing an impleader action at the appellate stage, the impleaded third party does not have the opportunity to lodge an objection or file an appeal of their own, and the judgment rendered at the appellate stage becomes final. In comparing this subject with third-party intervention at the appellate stage, it should be noted that an intervening third party voluntarily joins the action and, in effect, accepts that the adjudication of their claim will proceed in only one instance at the appellate level, and that the judgment becomes final thereafter. However, no such voluntary intent exists in the case of the impleaded party, and this constitutes one of the deficiencies of allowing impleader at the appellate stage. Moreover, this practice contradicts the principle of adversarial procedure and the equality of the parties’ right of defense. In addition, given the compelled presence of the third party during appellate proceedings, the impleaded party has no right to object to the judgment after it is issued. This legal possibility may be abused, as the impleading party might intentionally submit a third-party impleader petition at the appellate stage in order to deprive the third party of their appellate and defensive rights. One measure to prevent such misuse is to restrict the possibility of impleader by creating specific conditions, such as the emergence of a new element stemming from the trial court’s judgment or arising after its issuance. For this reason, French law has restricted this possibility, and third-party impleader cannot be raised absolutely at the appellate level. According to Article 555 of the French Code of Civil Procedure, “these persons (third parties) may be summoned before the court of appeal when the transformation of the action entails that they be made a party, even for the purpose of securing a judgment against them” (Code de procédure civile, 1975). Thus, there must be an intention to transform the action, and such transformation must necessitate the impleader of the third party. Transformation of the action occurs when circumstances arise in which new facts regarding a right or an act are discovered. Nevertheless, the French Court of Cassation, based on the principle of two degrees of jurisdiction, has limited the initiation of third-party impleader at the appellate stage.