In The Name Of God
Fundamentals of determining proverbial rewards from a legal and technical point of view (along with critique of the article and response to its critique)
By: Kioumars Sepehri
Introduction:
One of the disputes that people go to the courts about is the issue of the benefits of property and possessions that one party has deprived the other of, and it is usually referred to as "proverbial reward," which is a large amount of litigation. In this case, the role of the expert in determining the amount of proverbial importance is of fundamental importance, and it can be said that the most important role in such cases is the responsibility of the expert, because the plaintiffs want to file a lawsuit and claim the right. The amount is determined by an expert and the role of the court in determining it is usually low, so you can He said that the pulse of the lawsuit and the case file is in the hands of the expert, so given the importance of the case, it should be further examined and examined that real justice is exercised in terms of the realization of the right and responsibility in terms of conscience and sharia. It is not up to the expert, and this article is written with the intention and perspective of how to achieve this justice and conscientious satisfaction and to prevent the violation of the rights of both parties. I hope that this brief is useful and effective, and that experts do not deprive readers of their knowledge in completing and continuing it.
Subject Design:
In many cases involving proxy fees, courts usually generally assign the assignment of proverbial rewards to an expert, without specifying how it is to be ordered, such as estimating the ten-year proverbial rent of a residential house from April 1, 1991 to April 1, 2001 is asked from the relevant expert, now the selected expert regardless of issues such as the area of the building, its facilities and appointments, the location of the property in the city or its location and issues such as technical and specialized matters related to the field, whether According to Rial, the criterion for estimating the proverbial reward should be the rate of expert time for example, the ten-year proverbial reward. Put the rent of the proverb of the present time or the rate of time of possession and use, for example, 1991 based on the rent of the same year and 1992, and also this issue in lawsuits where the proverbial reward for a large amount is demanded, much more It is as if the demand for proverbial wages has been several hectares of arable land for the past 25 years. On the other hand, the existence of annual inflation makes the case more important, and the result of the work is very different in determining what we think of the proverbial reward. In this article, an attempt has been made to raise issues that are practical solutions according to the legal, jurisprudential and intellectual documents, and can be used by respected experts in various fields and others involved in the case.
Fundamentals and Resources of Civil Responsibility:
According to a general principle that is endorsed by reason, sharia, and law, anyone who inflicts damage on another is liable for damages, and the perpetrator is liable and liable to the injured party and is so-called liable to him. has it. There are many verses in the Holy Qur'an from which one can infer responsibility and the necessity of compensating and forbidding the infliction of harm and loss to others, including verse 194 of Surah Al-Baqarah, which says: Against him, so whoever touches you with cruelty and oppression, let him endure to the end as much as the oppression that has befallen you. Also, the command of verse 29 of Surah An-Nisa ': "O you who believe! There are many contractual (covenant) and non-coercive (coercive) requirements, as well as verse 233 of Surah Al-Baqarah, which says, Prohibition of harm to others is prescribed, and although the verse is about parents, the characteristics of parents do not affect this ruling. (1) According to the Qur'an, which is one of the rules of jurisprudence and progress and has been extracted from the prophetic hadith of "no harm and no harm in Islam", according to one interpretation, no harm should be left without preparation and everyone else To inflict harm, it is obligatory to prepare and compensate it, and there is no non-prepared harm in Islam, and the holy sharia forbids non-prepared harm. According to the loss rule, the loss of other property causes liability, and the person in charge of the loss is required to compensate for his harmful act.
According to the rule of consolation, anyone who causes financial loss, even if he is not personally and directly involved in the loss and damage, is responsible and the guarantor.
According to Article 40 of the Constitution, no one may infringe his rights by infringing or violating public interests, and according to Article 30 of the Civil Code, any property has the right to any possession or use of its property, except in cases where the law of exceptions Has done. Therefore, no one has the right to deprive the owner of the use of his property.
According to Article 303 of the same law: A person who has received money illegally is the guarantor of the same and its benefits, whether the next is the right of the scholar himself or the ignorant. And Article 315 of the Civil Code also considers the usurper to be responsible for any violation or defect that has been committed by him at the time of his possession, even if it is not documented in his act. And usurpation is the domination of a right other than aggression, and the proof of iodine over non-licensed property is also in the form of usurpation (Article 308 of the Civil Code). And Article 328 of the same law stipulates that anyone who loses other people's property is the guarantor of it and must pay the same or its price, whether he has intentionally or unintentionally lost it, whether it is objective or beneficial, and if If it is incomplete or defective, it is the guarantor of the defect in the price of that property. In addition, anyone who causes financial loss must pay the same or its price, and if it has caused a defect or defect, he must be responsible for its defect (Article 331).
Also, the article of a civil liability law adopted in 133, considering the damage and damage to the rights of others as a result of intentional and carelessness, has caused the responsibility and obligated the perpetrator to compensate.
Article 1 of the Civil Liability Law:
"Anyone without legal permission intentionally or as a result of reckless loss of life or health or property or liberty or dignity or commercial reputation or in any other way causing material or moral damage shall be liable for damages resulting from his act."
According to the above principles: Any kind of damage to the same property or the benefit of that property must be compensated and in principle no damage should be left without preparation and compensation. Second: It does not matter whether the damage was caused directly by the perpetrator or the agent or indirectly by the creation of the ground and the so-called tyranny. But the main issue is how to compensate.
How to compensate for the loss and determine the proverbial reward
Theoretically, the need to compensate for the loss and the fact that any kind of loss must be compensated, both in Islamic law and in Iranian law (which is mostly based on Islamic law) and perhaps the most advanced legal system in the world and its progressive rules It has been developed for centuries, and Islamic jurists have raised precise and delicate issues, but in terms of practical issues of the case, that is, how to compensate for the losses and benefits, the issue has not been discussed so much. Many of the issues and problems caused by the economic situation in today's world and the existence of phenomena such as inflation and devaluation Money and the medium of exchange of money and the criterion for determining the economic value of a commodity are based on it.
However, fortunately, according to the principles and rules mentioned above, the method of compensation is easily obtained and it is a complete compensation for the loss and the so-called daily rate, the reasons for this are as follows:
A: Common sense dictates that damages and damages be fully compensated, and the principle is that action should be taken in a way that benefits return, but since this is usually not possible, it must necessarily be compensated in another way (assuming the plaintiff - injured and injured - creates damage. And writing has no role to play (and this is a matter of course, and in such cases, intellectually and deductively, the first thing that comes to mind is the verdict, not the verdict and the other way around, and the value of exchanging lost property or rights must be paid.
B: God Almighty has said in the Holy Qur'an: Indeed, we have sent Our messengers with proofs and miracles, and We have sent down to them the Book and the measure of justice, so that the people may be truthful and just. One of the prophecies of the prophets is the establishment of justice and installment, and justice and installment is that everything is in its place. The court, which does the judging of the prophets, must do the same, so the expert must act in a way that makes this happen.
C: According to the no-harm rule, no harmful damage should be left without compensation, and the so-called loss is not prepared and denied, and it is obvious that if the proverbial reward is not determined at the current rate, ) Part of the losses will be left without preparation.
D: In the category of usurpation (subject to Articles 308 to 327 of the Civil Code), according to Islamic teachings, which is also the basis of civil law, usurpation is the most severe form of reprimand and interrogation (2) (usurpation and usurpation of rights). He must be held accountable for the interests of the property or the right to the property, which he must fully compensate for. If he has lost the property if it does not exist, he must pay the price at the time of the lease. In the case of benefits, it must pay the price of the day, which is not equal to the benefits that have been granted to the owner. It is obvious that otherwise, not only has the usurper not been severely punished, but there has also been a lot of talk about him.
Article 230 of the Civil Code in this regard, although it does not have an explicit verdict, and apparently in order to express the verdict, it has been used to compensate the interests of the possessed property by several usurpers, but according to the above, it can be interpreted and cited in this regard. The usurper of the usurped property is the guarantor of the usurpation of the time of his and his usurpation, although the usurpation is not prohibited, but the usurper who is responsible for the usurpation of the usurper's property can be usurped at any time.
Article 337 of the Civil Code, even if the property and property of the owner of the property have been used with the consent of the owner of the property, obliges the user to pay the proverbial reward. Benefit, the owner of the property will be entitled to a proverbial reward.
E: If the determination of the proverbial reward is not based on the daily rate, then the result is encouragement of usurpers and violators of the rights of others, and this result is nothing but a blow to social and economic security and ultimately reduced investment and reduced employment and production. The prevalence of mistrust and encouragement of people not to cooperate and collective activity and partnership and the tendency to individual and business-oriented and service-oriented and inflationary jobs instead of productive and employment-creating jobs, and legally have no interpretation other than having unfair and void property. Certainly this is not the desired result of any individual or community.
PS:
1- Dr. Mohammadi, Abolhassan, Rules of Jurisprudence, Yalda Publishing, page 170
2- Mohammadpour-Alexander-Judicial Analysis of Criminal Laws- Ganj-e-Danesh Publications, 1993, Page 88
3- Katuzian-Naser-Introductory Course in Civil Law-Legal Events- Publication of the Entesharat Company year 2000, P. 216
Sources studied and used:
a . Rules
1. The Constitution of the Islamic Republic of Iran
2. The Code of Civil Procedure of the General and Revolutionary Courts
3. The former Code of Civil Procedure
4. The law of small issuance and its amendments.
5. Civil law
6. Civil Liability Law
B. Other resources
1. The Holy Quran - Translated by Mehdi Elahi Ghomsheh
2. Bazgir-Yadaleh - Jurisprudential and legal rules in the Supreme Court's decisions - Daneshnegar Publishing House, 2002
3. Dr. Bahrami Ahmadi - Hamid - Abuse of Right, Comparative Study in Islamic Law and Other Legal Systems - Information Publications - 1991
4. Tajmiri - Mir Timur - Culture of Legal Phrases and Signs - Afrineh Publications - 1998, p. 148
5. Dr. Jafari Langroudi - Mohammad Jafar - Mohshi Collection of Civil Law (Scientific - Comparative - Historical) - Ganj-e-Danesh Publications in 2000
6. Imam Khomeini (RA) - Grand Ayatollah Ruhollah - Tahrir al-Waseela - Volume II - Islamic Publications Office, 1987
7. Dr. Shariati Bagheri - Mohammad Javad - Article "Loss and Pride" Translation - Legal and Judicial Journal of Justice No. 33 Winter 2000
8. Dr. Shahidi - Mehdi - Fall of Obligations - Publisher of the Bar Association in 1994
9. Dr. Katozian - Nasser - Civil Law, Guarantee of Coercion - Civil Liability, Dehkhoda Bookstore Publisher - 1983
10. Dr. Katozian - Nasser - Civil Law, Legal Events, Publisher of the Joint Stock Company, published in 2000
11. Dr. Katozian - Nasser - Judicial Justice Selected Votes, Nashr-e-Gostar - 1999
12. Dr. Kashani - Seyed Mahmoud - Article "Legal Principles and Regulations of Late Benefits of Late" Journal of the Bar Association Consecutive Issue 176 (New Issue 7) April 2002
13. Dr. Mohaghegh Damad - Seyed Mostafa - Rules of Civil Jurisprudence 1 - Publication of Islamic Sciences 1984
14. Dr. Mohaghegh Damad - Seyed Mostafa - Rules of Jurisprudence of Civil Section 2 - Samat Publications in 1994
15. Mohammadpour-Eskandar-Judicial Analysis of Criminal Laws (Tehran Courts of Criminal Courts) - Ganj-e-Danesh Publications, 1993
16. Dr. Mohammadi - Abolhassan - Rules of Jurisprudence - Yalda Publishing - 1993
17. Ayatollah Mousavi Bojnourdi - Seyed Mohammad - Rules of Jurisprudence - Miad Publishing - 1993
18. Nobakht - Yousef - Judicial Thoughts - Kayhan Publications - 1997
A critique of the principles of determining the proverbial reward from a legal and technical point of view
By Faramarz Zamani Salimi
Deputy of the Disciplinary Tribunal of the Tehran Experts Association
On page 31 of Expert Magazine No. 43 (October and October 2003), an article entitled "Determining the Proverbial Reward from a Legal and Technical Perspective (Expert) by Mr. Kioumars Sepehri" is included, which summarizes the statements of the experts in The authority to determine the proverbial reward of the property and objects in general must determine the total proverbial wage demanded at the rate of the day. Considering that the explanation of the mentioned article is absolutely not compatible with the principles and legal rules and its application in the article can cause injustice and in some cases unfair treatment for individuals, I considered it necessary to briefly explain and explain the subject matter in writing. Attention to it, especially respected experts, protects the judiciary from many unintended and unfair slips:
To clarify the matter, it will be useful to mention a few practical examples of the demand for proverbial rewards:
A) A person driving a Peykan car, model 1375, provides it to one of the authorized repair shops in 1997 for repairs. Then it turns out that on the way to the northern cities of the country, it fell into the valley and the said car went out of service.
The owner of the destroyed car filed a lawsuit against the manager and the person in charge of the repair shop, claiming that due to negligence in maintaining and caring for the customer's car and obtaining permission to leave it by a worker who did not have sufficient qualifications, he demanded the price. It is obvious that in this lawsuit, assuming the referral of the matter to the expert, he must determine the highest price of the time of consideration in terms of the car model and its general characteristics.
B) In the same example above, after the repair shop worker has run away within 6 months, the Peykan car will be returned to the owner and will be returned to the owner. And converts iodine into a guarantee iodine. In this case, if the court has issued an order to refer to the case study, the selected expert is obliged to determine the six-month proverbial wage in the June 76 proverb of the same year of Azar at the rate of August of the same year (average proverbial wage of the required days). Proverbial rent is based on the inflation rate and the price of goods and services from June to December, car rental has been growing. In this case, the correct action to determine the proverbial wage is the required time that the expert rates the monthly rate according to fluctuations. The same month, the appointment of the attorney general will be announced as a proxy fee. For example, the proverbial rewards of June, July, men, and September are much higher than the proverbial rewards of October, November, and December, due to higher demand and local demands, which have been lower than the demand for car rentals in the area. That may have happened in February of that year, assuming a sharp drop in car price orientation to reduce demand would not be fair.
C) The construction builder mistakenly builds the land registration position in the adjacent registration plate due to incorrect implementation of the location. Ten years after the occurrence of the said error and the construction of the constructor, the owner of the said registration plate, by filing an eviction lawsuit, demands the proverbial reward for the ten-year occupation. Assuming that there is continuous annual inflation and increasing the proverbial reward every year, if the proverbial reward for the first year of possession is ten thousand tomans per month and the proverbial reward of the tenth year is one hundred thousand tomans per month,
According to the author's theory, the expert article should determine the proverbial ten-year wage based on the day's rate for the whole period, which will be equal to 12 million tomans.
120,000 = 120,000 * 120 months, which is not compatible with the concept of legal regulations, including Articles 320 and 322 of the Civil Code, and the need for fair follow-up in determining damages, which is relative to the location and time, and custom does not approve of the calculation of damages.
Determining the value of the destroyed year in accordance with the provisions of Article 317 of the Civil Code and other legal regulations, if the property confiscated in the usurper's iodine or in the iodine of a person who is not recognized as safe without the permission or against the contract and the law of his iodine is determined. The title of the extinct financial value is in accordance with customary and legal principles and rules. However, in determining the proverbial wage during the days of possession or the days when the owner of the claim party actually finds the right to demand the proverbial reward for the act or omission of the action, the determination of the average proverbial wage of the requested days The rule in the article in question does not conform to this rule.
In The Name of God
Reply
By: Kioumars Sepehri
Regarding my article entitled "Fundamentals of Determining Proverbs" from the legal and technical point of view (expert) published in issue 43 of the expert magazine, it has been criticized by Mr. Faramarz Salimi, Deputy of the Disciplinary Prosecutor's Office of the Tehran Experts Association. Page 27 has been published. Due to the contents of that critique, I have to make some explanations. I hope that these explanations and critiques will be useful for readers, especially respected scholars and jurists, and will make fair judgments.
First of all, I would like to ask the esteemed readers to review the original article once again (although Magazine No. 43, unfortunately, apparently has very few numbers and is not available to many trainees and respected experts) that have the general principles in mind and also in Arbitration and action papers can also take a fairer approach.
But here are a few brief facts about the situation of the case and the conscience of the readers:
1- In the introduction to his article, the esteemed critic has stated that what is used in the article is not compatible with the principles and rules of law, and its application causes injustice and injustice, and ultimately causes unfair slip and deviation. In response, it should be said. : First, in the article, with the help of rational and logical principles, it was proved that all the losses incurred will be compensated. Secondly, the Qur'anic, jurisprudential, principled and legal documents of the case have been summarized and useful using the most authoritative jurisprudential and legal sources. Third, what is justice, is it unfair that it is in accordance with our inferences and tastes? Or is it fair to get the issues and rulings based on strong Qur'anic documents, jurisprudential articles and the most accurate legal documents? Isn't justice the proper implementation of legal rules? Isn't justice that everything should be in its place? Isn't justice the same if the interests that have been strengthened are fully compensated by the usurper and the wrongdoer? Fourthly, the esteemed critic has not provided any documents or promises to prove his theory, only a position cannot be proved or rejected.
2- The esteemed critic has cited examples and obtained results, and in the case of loss of the same property, has accepted the necessity of paying the highest price, but in the case of proverbial reward, without mentioning the legal citation, the necessity of determining it based on the time of loss and its use by the plaintiff. (Harmful and destructive) They have announced that it is necessary to ask, what is the difference between the same property and its benefits, from the point of view of this discussion that we should act in another way, the reason for this dichotomy is which verse of the Qur'an or the original jurisprudential principle or certain legal text or Even the interpretation and the least legal? The esteemed author did not mention any, of course, because there is. If the real estate proverb in the last 25 years, for example, has been 100,000 riyals, and the consumer now has to compensate, he must pay the same 100,000 riyals, or he must at the fair rate of the present time. For example, 1,000,000 Rials, does anyone rent a property to him at the rate of ten thousand Rials? Certainly not, on the other hand, it can be said that the current one million riyals is the same one hundred thousand riyals at the time that the reader has used it or lost it, and the owner has been deprived of it.
3- On the other hand, the esteemed critic has mixed some technical issues of expertise (such as reducing the demand for car rental, for example, in the autumn months of the year) with the legal and legal basis of the case, while those communication issues are related to how to determine proverbial wages. There is no expert (the main topic of discussion in the article), and there is no question that the expert should consider practical facts in his theory when commenting. As spring and summer are basically more active and these matters are minutes and technical expertise, which is one of the reasons for referring the case to the expert, the likes of these cases.
4. The esteemed critic has considered the determination of proverbial rewards based on the facts of the day and the time of consideration as an example of seizing property during 5 years, contrary to legal regulations, including Articles 320 and 322 of the Civil Code, while not mentioning the relevant legal regulations. What are the legal regulations? Apparently, their legal inference is based on legal regulations. Secondly, Articles 320 and 322 do not benefit the author's argument, but its criterion, as mentioned in the original article, can be invoked in the opposite direction of his opinion, while those articles are in the position of determining the persons responsible to the owner of the property. Responsibility is between several usurpers, and since each usurper is not responsible for the interests of the time of his usurpation and its aftermath, it is not necessary to pay the benefits in accordance with the rate of that time. Let's lay the groundwork. At the same time, Article 322 is obligatory regarding the forgiveness.
5- Writing an article by me based on the feeling of need and the existing conflict and due to practical and experimental problems resulting from numerous cases in the courts and only from the point of view of justice and seeking justice, not personal opinion. Therefore, the opinion of the esteemed critic is not based on any legal or judicial or jurisprudential principles or even theories of legal (jurisprudential and rare) legal or jurisprudential opinion and is a personal inference that is respectable in its place but cannot be a criterion for justice that respected experts must apply. They did.
Explanation by: Mr. Faramarz Zamani Salimi
Honorable members of the editorial board of Karshenas magazine
Greetings in connection with an article entitled "Critique of the article entitled" Fundamentals of Determining Proverbial Remuneration from a Legal and Technical Perspective "., Which has been published in the 45th issue of the expert journal. Numerous typographical errors have been made by the author, which has disrupted the meaning of the article. Requests that the following text be published in the first new issue if approved.
The final inference
In determining the value of the destroyed property, according to Article 317 of the Civil Code, which is exactly the same, the owner can remove the whole or part of the property from the first usurper or from any of the subsequent usurpers if the same property is lost. Who wants to demand ›› The highest price setting is in accordance with the principles and legal standards. However, in determining the proverbial reward for the days of possession or the days when it is possible for the holder of the right to demand the proverbial reward, calculating the average or average proverbial reward for the required days is the correct and fair rule.