enforcement foreign judgments in iran
conditions for identifying foreign rulings in Iranian law
In order to investigate the conditions for identifying foreign rulings in Iranian law, articles of civil law and civil law should be discussed in combination: Article 972 of the Civil Code has poems: Rulings issued from foreign trials as well as official documents regulated abroad cannot be implemented in Iran unless they are issued in accordance with Iranian law. Therefore, in accordance with Article 973 of the Civil Code, the principle is to prevent the implementation of foreign rulings in Iran unless the Iranian court of law, in accordance with the subject, is issued by domestic law. The implementation of foreign rulings after the courts have stated their validity and the lack of conflict between these votes and public order and in fact their influence is given under Iranian law. Article 974 of the I.M. also removes little ambiguity regarding the principle of non-implementation of foreign rulings, and according to this article: Articles 7 and Articles 962-974 of this Law shall be implemented in a timely way that is not against the international agreement signed by the Iranian government or is not against special laws. This article adds another condition for the implementation of Article 972, which is the non-opposition to international law and special laws. However, in the law on the implementation of civil rulings, the status of identifying foreign rulings is otherwise stated: At the top of Article 169, it is noted that civil rulings issued by foreign courts are applicable in Iran if they meet the following requirements, unless otherwise prescribed by law. It is inferred from the appearance of this article that the legislature has placed the principle on the implementation of foreign rulings. This is because by stating the adverb "unless" refers to the lack of implementation of exceptional cases and this is the difference between Article 972 and this article. According to jurists, Article 972 is one of the cases of public order and it is not possible to predict the opposite rule in other cases. However, Article 169 of the Civil Code has accepted this possibility. In any case, according to some jurists, the recent article considers the principle to be capable of implementing foreign sentences. However, looking deeply at these two articles, it can be said that there is no difference between them: because Article 972 requires the permission of Iranian courts to carry out foreign sentences, and Article 169 of the Civil Sentence Enforcement Act for the implementation of these sentences has foreseen the conditions in which the court must meet these requirements. This analysis was in line with the discussion that was mentioned at the beginning of the article and we said that there is a difference between the barriers to the implementation of foreign law and the obstacles to the implementation of foreign sentences. As articles 170 onwards of the Civil Sentence Enforcement Act in the completion of Article 169 of the same law considers the request for the implementation of foreign sentences from the Iranian courts and the issuance of permits from the conditions of foreign sentences. This is the same issue referred to in Article 972 and finally, Iranian law provides for the ability to enforce foreign sentences in Iran. However, in order for foreign decrees to be implemented in Iran, they can pass through the Iranian courts and obtain permission to implement them. Therefore, in order to determine the way domestic courts take action in assessing foreign rulings, the Iranian legislator has provided the conditions for implementation in Article 169 of the Civil Code and in the completion of
Article 972 of the Civil Code for issuing orders.
The conditions for the implementation of foreign sentences in Iran: With the sum of Article 972 and 974 of the Civil Code and Article 169 onwards of the Civil Code, the implementation of civil sentences can be considered necessary for the implementation of foreign sentences in Iran. Of course, regarding the law on the implementation of sentences, it should be noted that the legislator has developed a set of conditions which have been met in Article 169 of the Civil Code without separating the conditions of identification from the conditions for the implementation of the sentences. Now we examine the status of the conditions for identifying foreign rulings:
1- The ruling issued by a foreign court relating to lawsuits means special: the purpose of lawsuits means the same commercial and civil claims that are accepted in the private relations of natural and legal persons of private law. Although 972 BC has used the word "sentences" absolutely, in terms of its status (civil law), the legislature has no regard for the penal rulings, and although article 1-10 of the Islamic Penal Code of 2013, the existence of sentences issued from abroad in Iran is not applicable. [1] In other respects, rulings governing criminal issues as well as administrative rights are not essentially affected or overseas. Of course, it is necessary to mention that if the criminal sentence includes the obligation to compensate for losses and this is distinguishable from the penal aspect, then the sentence to compensate for the mentioned losses, has an extra-border aspect and in this respect is applicable.
2- Mutual transaction: Governments care a lot about mutual transactions in dealing with each other. In the past, this case was considered as a general principle of international law, which today this general principle has been adjusted so that most countries that have common rights and even France are willing to enforce foreign decrees without mutual transactions without any reciprocal deal with the country of person. But at the moment, this principle has not been stopped in Iranian law. As stipulated in paragraph 2 of Article 169 of the Civil Code. In order to verify this claim, it should be noted that in the question asked by the Advisory Committee of the Justice Department regarding the implementation of the vote issued by France, it was also answered: "No contract has been signed in Iran regarding the implementation of the votes issued by France, but according to the maritime agreement between Iran and France, it has been implicitly predicted with the conditions that the vote will be applicable.
3- The ruling issued by the competent court: In order for the judicial authority to issue the sentence to be competent, two issues should be taken into consideration: a) The issue of competency cannot be solved by respecting the general principles governing international jurisdiction regarding the appeals, but the rules of qualification are similar to the rules of conflict resolution of the laws, so they have said that only when the ruling of foreign courts is identified according to the rules of conflict of the laws of the country. Implementation has been issued in accordance with the competent internal law of the country where the court is issued (No. 1383, 419) b) The sentence must have been issued by a judicial court, so the rulings of the private arral tribunals are not taken into justice unless the court orders the implementation of their decisions. 4- Validity of the sentence in accordance with the law of the country, the seat of the court issuing the ruling: The general rule in this regard is that merely making mistakes in the manner of the proceedings or even intentional violation of the rules of procedure, as long as it has not been ignored by the competent authorities of the country where the sentence is issued, does not invalidate the sentence and does not harm its international credibility. Nevertheless, the identifier's court will have the same validity as the ruling for which the provisions of the country's proceedings are established by the court that issued the ruling.
5- Certain and enforceable sentence: This case, which is also stipulated in article 169 of article 169 of the Law on the Implementation of Civil Decrees, indicates that the legislature intends to emphasize on the condition that the decrees issued in Iran are enforceable, otherwise these provisions are not applicable in Iran in order to protect Iranian nationals, not to give further rights to foreign nationals. Foreigners can never have more rights than an Iranian has. In different legal systems, the purpose of the certainty of the sentence is different. However, everyone believes that temporary courts' agreements and orders, such as those for the provision of demands in other countries, cannot be identified and implemented. Because such decisions can always be terminated, the absentee decree is not applicable in a foreign country. Of course, the definitive and enforceable foreign decree must be determined in accordance with the law of the country issuing the sentence. (Morteza Nasiri, 1967, page 389.) For example, if a judicial decision is not applicable outside the territory of the exporter, such as a ruling issued in accordance with the law of the issuing country of the ruling on the property of the person from which the request for execution is issued, it is not applicable because the personal status is subject to the law of the country of origin under Article 6 of the Islamic Republic of Iran. Therefore, the non-closing of the issue and the unreclusive ruling in Iran is not applicable.
Different methods of identifying and implementing foreign sentences: In today's world, there are several legal systems that have not behaved similarly to the identification and implementation of foreign sentences: Therefore, there are different methods and systems in this regard that we are investigating different types of systems in this section:
A) Limited control method: In this way, in fact, the judge's authority is limited to the circumstances and directions of the problem and does not have the right to enter into the nature of the dispute. In fact, in this way, the judge cannot examine the reasons and documents and testimony of witnesses or the interpretation of the court issuing the sentence, but only the sentence in some respects and circumstances of a particular problem. For example, the jurisdiction of the voting issuer, the traffic of the trial, the finality and the entry into force, the inconsistencies of the sentence with public order and good ethics are among the issues that are taken into consideration. Countries such as Ireland, the United Kingdom, the United States and Iran follow this method. For example, since 1970, New York State has passed the United States Act of Unity of Action on the Identification of Foreign Financial Decrees, whereby if foreign decrees have been issued under a system that does not meet the impartiality of the court or due process in accordance with the requirements of the claim or the proper legal process, it will not be valid and enforceable in this respect, what is relevant to this law is that the state of New York has long been required. One of the most free-thinking jurisdictions in the United States is the identification of sentences issued by foreign courts and has yet to maintain this characteristic.
B) Unlimited control method: In this method, a general review of the external ruling is carried out, but the judge cannot change the external ruling during his review. Of course, the judge may review the external ruling in accordance with the applicable matters and law. In this way, for example, the judge can examine what country the law governs and comment on which law should have been chosen as the law governing the case. Of course, the application of an indefinite control method does not mean that the judge will change the external ruling or investigate a new matter. France and Belgium are among the countries where the system of enforcement of foreign decrees is similar to the method of unlimited control. Of course, in accordance with this method, we should say that the court will conduct a general review of the foreign ruling and that the judge can accept or reject it already.
C) Absolute rejection method: In this method, the sentences are neither identifiable nor applicable. This means that there is no credit for external rulings and these rulings cannot be identified or implemented in any case. This method, inspired more by rome's rights, stems from the tremendous respect that countries had for their sovereignty, and the greatest value of that ruling was that it was considered merely a document.
d) Absolute revision method: (Morteza Nasiri, 1967, page 389). In countries where this method applies, judges have absolute authority to identify and execute foreign sentences. In addition to examining the directions of a form of mahoor, the judge may also review the external ruling and make changes to the external ruling or amend it al generally. In this method, the judge may completely reject the nature of the dispute and change the provisions of the sentence according to his or her opinion. This way of thinking prevailed in France before 1964, and french courts examined foreign rulings in nature. Since 1977, Iran has been in the third group and in fact adopted a limited control system in its laws.
The theoretical foundations of identifying and implementing foreign sentences: Identifying and enforcing the rulings of foreign courts is based on their own principles and principles, we will briefly explain and explain these principles in this section: