Document Type : Research Paper
Authors
1
Associate professor Department of Law, Imam Khomeini International ‎University
2
Ph.D. Candidate in Private Law, Faculty of Humanities & Social Sciences, Azad University of Zanjan
Abstract
Abstract
One of the most important steps of enforcement operations is the high tender and sale of moveable properties of the losing party or promisor (debtor). Although the final objective of the winning party or beneficiary, in obtaining a definitive judgement or drawing up a binding document, is the collection of claims or the implementation of undertakings, if the relevant judgement or binding document is not implemented, the final objective of establishing and implementing the religious and legal justice will not be achieved.
The present study, by a descriptive and analytical method, is seeking to answer the question whether by mere issuance of a judgement or by drawing up a document, such an object is accomplished or is faced with some challenges and obstacles. Indeed, the enforcement path, which constitutes the continuance of proceedings process and the issuance of document, , will not be easily attained before the judicial and registration authorities and, due to the multiple problems and impediments in this process, the path for enforcement operations,
in particular with regard to the high tender of moveable properties will encounter with serious tardiness and challenges.
Many of these problems can be attributed to the Legislature’s silence about articulating some rules and regulations with regard to high tender including elimination of auction regulations in the registration enforcement system, and about questions like the renewal of high tender, the authority competent
for determining whether the properties distrained according to the Bylaw for the Enforcement of the Contents of Binding Notarial Documents (1386 SH) should be returned and the time they should be returned , lack of any specification regarding mutual consent on the place and the time of sale in the registration regulations, lack of any criterion for determination of the place and the time where the high tender and the sale must be executed, failing to make clear the concept of ‘local widely-circulated newspaper’ and ambiguity regarding the ‘renewed notice’ and the ‘renewal of notices’, lack of any specification with regard to joint ownership for the sale of movable properties in the Registration Bylaw and, finally, conflicts in certain articles
of the Act for Enforcement of Civil Judgements (1356 SH) and in the Registration Bylaw.
It is as a result of these problems that the concerns of the beneficiary persons must be understood, as these shortcomings and problems hinder or obstruct the enforcement operations by judicial and registration authorities. On the other hand, since the enforcement of judgements and documents is made through two different notarial and judicial enforcement systems, despite the similarities in the regulations governing, and the methods applied in, the enforcement by either system, there exist many differences between the two.
By elimination of the regulations of auction and elucidating the relevant rules of high tender, the law has disarranged both the legal system and the enforcement system of these two legal institutions. Considering the differences between auction and high tender, the elimination of the regulations of auction and its replacement by high tender has created crucial difficulties as well as perplexities. Because, the institution of auction continues to exist in other laws, such as Art. 2 of the Guild System Act (1383 SH) in which the which defines auction by three charactersitics: in-person transaction, cash payment and definitiveness. But, despite the evolutions in the electronic processes in notarial agencies, no authority has yet been assigned for the enforcement of the high tender operations or for the electronic auction. Hence, considering the high prevalence of auctions, in particular the electronic ones, differentiating between high tender and auction and the elucidation of their rules and consequences in the 1356 Act and the 1386 Bylaw, by amending or revising the respective rules, is a necessity.
Other problems to be attended include the law’s silence about the second-turn high tender, about the place of keeping and protecting memory and about the definition and instances of ‘local newspapers’, as well as judicial rules and notarial regulations which are inconsistent with, or contradicts, one another in one respect or another. These problems and inconsistencies that make necessary, first, that the Bylaw for the Enforcement of the Contents of Binding Notarial Documents (1386 SH) be given the status of an act of Parliament and, second, that the Act for the Enforcement of Civil Judgements (1356 SH) be wholly revised considering of the long time since it was enacted.
Keywords
)