In The Name Of God
Penal Code for the transfer of other’s property, valid or invalid
By: Kioumars Sepehri
Introduction:
With the proliferation of real estate transactions by real estate intermediaries, as well as the transaction of movable property such as cars, mobile phones and their non-registration, many problems and crimes have arisen, resulting in lawsuits and numerous lawsuits in the courts. Lawyers, forensic experts, offer a variety of ways to predict and act, including relying on the penal code regarding the transfer of property.
Discussion plan:
The penal code on the transfer of property other than related matters has now become one of the most widely used laws in Iran's jurisdiction, especially in property infringement cases, so that if a financial transaction is made, it is traditionally considered conflictual. Under the previous transaction, the person had, or in some way, assumed that he did not own or have any rights to the property, under the Penal Code, the transfer of undesirable property and punishment is presumed, and in many cases as "sale." Non-property »The probability of such a person being punished is undoubtedly presumed, without a thorough investigation of the purpose and intent of the legislature in the law in question, should be discussed, but it is not that simple, and it is very thought-provoking. Initially, the validity of this law is debatable, and in the post-legal and inclusive stages of the law, assuming that it is not abrogated, it is much more limited than what is currently practiced, which we will discuss in the following.
Topic one:
Non-inclusion of the law in relation to movable property
Although the judiciary and the general public have a strong desire to enforce the Penal Code on the transfer of unapproved property in 1308 in respect of all transactions related to movable property in the case of defendants in the transfer of non-pecuniary property, the reality is that the law is valid. In no way has the status of movable property in the case of determining the penalties for criminal offenses in respect of movable property, the provisions of the law and its expressions and expressions of time constituted the legal and economic benefit of other similar social status and status.
1. With an attitude and accuracy in the whole of the said law and its provisions, what is inferred and comes to mind is immovable property and not movable property.
2. Some phrases and words of the law have made the matter quite clear: the first paragraph of the article refers to the object and the benefits of property, although in principle and law, movable property also applies to the object and the benefits about them, but usually The word "interests" is used for immovable property, and if it is not symmetrical, it must basically be transported to immovable property. In the second and third paragraphs of Article 1, reference is made to "owner" and "ownership". These words are commonly used in the language of the legislature, usually in the case of property, not property, and in other articles of the law the reference to ownership and ownership is frequently mentioned. There is no doubt about this, the most important thing is that Article 1 mentions the duty of the owner (principal) to notify the transferee and the registry office that no one seems to doubt the immovability of the property. It is a matter of law.
3. The Law on Punishment of Persons Who Introduce Non-Property Instead of Property, which is less than two months away from the Penal Code on the transfer of non-approved property, states that the owner of the property is "the owner of the property" and never uses the words " He did not use "ownership" and "owner" because the law provides for movable property, not immovable property. By comparing the terms of these two laws, it is precisely the legislator's intention to determine, in the law, the requirements for transfer. Property other than "property" is intended, not absolute property. Despite the above, the more time has elapsed since the enactment of the law, the more it has been cited in this law and its implementation in relation to movable property, which in my opinion has been a sign of inaccuracy in the law and its principles. (2)
4. In addition, at that time many of the current real estate transactions either did not exist or were not common at all, such as car transactions.
Topic 2:
The law is obsolete (the law is not enforceable)
It should be noted that the penal code regarding the transfer of property is obsolete in terms of legislation and at least its implementation has been abolished, making it a serious and perhaps strange task for the majority of lawyers. Because it has been repeatedly and consistently cited by the judiciary and even the Supreme Court, and the issue of some of the views on the unity of procedure has been raised. And why was it approved?! It seems that due to the following cases of this law, it has lost its executive capability for many years and it is not correct for jurists to cite it: It has not been previously issued a title deed, the law does not specifically discuss ownership and transfer, the same issue was discussed in detail about two years later by the Registration Act of March 17, 1931 and its subject matter is in the law. Recording of repetitions and specific and more precise rules for it. It should be noted that legislative developments at that time regarding property and property registration and its rulings were very rapid. (3) Of course, this situation may be logical given the current state of property registration and the social situation at the time. 2. The Registration Law, as described in Articles 100 to 117, describes the offenses of registrars and persons who commit offenses and misconduct in connection with the registration of property and obtaining a document, and, as the case may be, for any offense or even Leaving the verb has determined the punishment (the last part of Articles 105 and 106 of the Law on Registration is an example of leaving the verb) and while the law of punishment regarding the transfer of property other than 1308 is only a matter of transfer (this transfer is basically an official transfer according to The above-mentioned provisions, which refer to the notification of the Registry of Documents and Article 1, Article 117 of the Registration Law, in addition to the transfer of the right, also include the obligation of the opponent. Abel has been punished. 3. Article 117 of the Registration Law, in addition to immovable property, also makes movable property subject to judgment, while according to the appearances of the words and phrases of the law in question, it has been only in case of immovable property, on the other hand, Article 117 in Initially, the approval of the initial transaction was discussed by the official document, but two years later, with the amendment that was made, it was also specified in the initial transfer by the ordinary document (which, of course, seems to have been due to a defect observed in practice. Because at that time they were not registered in all areas of the property and the transfer by ordinary document was common). The original text of Article 117 of the Registration Law was as follows: “Everyone has the right to a person or Persons who have given and will then be liable for the same or another benefit in accordance with another official document or an obligation contrary to that right shall be considered forgers in official documents and shall be sentenced to imprisonment for three to fifteen years. " This article was amended on August 27, 1933 and has become the current Article 117. Also, Article 105 of the Law on Registration of Ownership, which transfers ownership to another, or in some way deprives him of his property, and at the same time demands the registration of the property, or after the application for registration, his ownership is lost, and the ownership document is obtained. The scammer also knew that Article 109 and other criminal cases had been enacted by the Judicial Registration Law. It can be seen that the criminal provisions of the Registration Law specify the details of property-related crimes in more detail and comprehensively, and although they do not specify the version of the Penal Code regarding the transfer of property, they do not provide a local place for its implementation. It may be argued that if a person in a normal deed does not trade a property that belongs to another and does not have a record of registration, is not subject to the provisions of the law, and is subject to the law in question, there may be cases that fall under criminal law. If the law is not registered, this law is not supposed to cover all cases, so the matter can be subject to fraud under certain conditions, and secondly, the law we are discussing seems to be about official and not ordinary transfer, so about the recent assumption. This law will not apply either. Third, the principle is that all property is registered and its records are recorded by registrars. 4. The law in question and the penal code can be compared with Article 203 of the Islamic Penal Code in terms of limits and Articles 651 to 662 of the Islamic Penal Code in the discussion of punishments and deterrents, although different interpretations can be presented, but it seems that There is no ground for the implementation of Article 203 because Articles 651 to 662 have specifically and specifically ruled out the types of theft and have provided for the general and non-technical provisions of Article 203. 5. In order to confirm the above, it is possible to proceed to the judicial procedure (Supreme Court of the country) in the time closest to the years of approval of the law in question and The transfer of property has not been cited, while the issues raised have been fully compliant with that law, including: a. Voting No. Please). B. Insisting vote No. 1930 - July 20, 1960 regarding the transaction with the ordinary document and the official document, which was also documented in Article 117 of the Registration Law and not another law, (same reference page 293). J . Also, the insistence votes No. 2059 - July 28, 1960 (regarding the transaction with an ordinary document and then with an official document) and the number 131 - March 13, 1943(regarding the transaction of opposition by the person who owns it and with the ordinary document has given the right to another), listed on pages 203 and 204 of Ahmad Matin's Judicial Procedure Collection, published in 1961, which has been the documentary of the prosecution of all articles of the Registration Law. D. The unanimous opinion of the procedure No. 43- November 30, 1972 which deals with the transaction by ordinary document and then the transaction with the official document, is merely a discussion of the application of Article 117 of the Registration Law, and never in the decisions of the courts and tribunals. The Supreme Court does not mention the penal code regarding the transfer of foreign property and concludes: "It may be compatible with another" criminal code "assuming malice." That the Attorney General of the time (Dr. Ali Abadi) whose defense and theories are detailed and documented during the meetings of the General Assembly of the Court Li expressed the country and is known among lawyers is not any mention of the law. (4) In spite of all the above-mentioned cases, the Supreme Court, in its unanimous decision of procedure No. 594 in 1994, has explicitly discussed the law of punishment regarding the transfer of non-negotiable property?! However, the issue of disagreement, validity or invalidity of the law has not been mentioned, and the discussion is on how to determine the permissions in crimes that have referred to the fraudulent punishment of Article 238 of the General Penal Code under previous laws. However, it seems that in the present discussion, and in comparison with the above opinion, what is the opinion of the Supreme Court of the Islamic Republic of Iran regarding Article 1790 - February 6, 1993 regarding Article 17 of the Islamic Penal Code, which is considered as a supplementary and supplementary punishment? , And now that Article 17 is in the position of defining the punishment of the deterrent as the fifth category of crimes and punishments of the Islamic Penal Code and no one has any doubts about the misconduct of the Court in this opinion. Finally, it is noteworthy that the interpretation of the above-mentioned interpretation is in line with the criminal policy in order to eliminate the punishment and reduce the penal code and also the principle of the rights of the islands in the interpretation of the laws and criminal cases.
PS:
(1) In this article, immovable property means property.
(2) In this case, refer to the book "Judicial Theories of the Attorney General in the Implementation of Articles 18 and 31 of the Law on the Establishment of General and Revolutionary Courts" in 1996. Volume 1, edited by Mr. Mohammad Hashem Samadi Ahari, Ganj-e-Danesh Publications, 1999.
(3) In this case, refer to the collection of documents for the registration of documents and printing property of the General Directorate of Laws and Regulations of the President of the Department of Outdated Laws.
(4) For a detailed view of the prosecutor's views and the unanimous opinion of the said procedure, please refer to the collection of opinions of the Supreme Court's Unity of Voting Publications, published by the Vice President for Research and Compilation and Revision of Presidential Laws and Regulations (2001), page 350.