نوع مقاله : مقاله پژوهشی
نویسنده
دکتری حقوق خصوصی دانشکدة حقوق و علوم سیاسی دانشگاه تهران
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسنده [English]
Abstract
A review of various legal rules comprising the law of obligations in the Iranian legal system demonstrates that this system recognizes a special type of obligations with the unusual property that its burden is neither on one specific person (individual responsibility), nor on several persons simultaneously (joint responsibility), but, in two or more subsequent stages, along a specified priority, on different persons, so that in each stage, the creditor's claim is due to be paid from a different person’s property. The creditor could pass to the next stage only when in the previous, there has been found no, or insufficient, assets. The obligations of involved persons, in other words, cover each other alternatively. The type of obligation thus described has not been viewed as a genuine, independent one in the Iranian legal system so far. Rather, it is considered as a special and exceptional phenomenon, or even as an irregularity. Therefore, the instances fitting in this type have not been collected and studied together, its constituting elements have not been specifically studied, and the rules governing it have not been formulated. This article is intended to study this type of responsibility as a genuine and independent type among obligations and to examine its instances, elements and the rules governing it.
The method of this research is descriptive and analytical. Accordingly, in the beginning, the article will descriptively review various laws that contain, or constitute an application of, the sequential responsibility, either explicitly or implicitly. Then, in the analytical phase, an attempt will be made to derive the general principles, elements and rules governing the provisions embodied in that particular body of law. In this way, the most important
interpretive instrument will be the induction from various legal provisions. The library research method will also be employed.
The hypothesis of this research is that the sequential responsibility is not exceptional or irregular, but a genuine, purposeful and regular type which the legislator is able to use when necessary. It is a combination of the individual and the joint responsibility, aiming to support both the debtor and the creditor at the same time. Also, it can be conceived as a form of insurance for a number of obligations, each backed by the obligation(s) of the next stage. Therefore, by coherent explanation and analysis of the rules governing this type of responsibility, the scope of its appropriate application can be suggested to the legislator and to the legal doctrine.
The principal questions of this research are: 1. what are the examples of sequential responsibility in the Iranian laws? 2. What are the structural characteristics and the elements of this type and its differences with other types of responsibility? 3. What general rules governing this type could be induced and to what issues could they be applied? On the other hand, the following hypotheses will be suggested: 1. The hierarchy between the liabilities of different persons for paying alimony to relatives, as well as the sequence in paying the blood money between a) Aqila (paternal relative of the felon), b) the felon, and c) the public treasury are prime examples of this type of responsibility. Also, the sequence between a) minor's liability and b) its culpable guardian's liability, and in some cases, the liabilities of a) the company director and shareholders/members, and b) the company/legal entity should be considered as examples of this type of liability; 2. The elements of this type of responsibility are: sequentiality, single debt, and multiple properties. 3. There are general rules governing matters such as: the aim of responsibility, the relationship between liable persons, and the scope of responsibility.
This article has depicted as a regular category a group of obligations that have always been viewed as sporadic or exceptional cases. The article will present them as an independent, original institution in the Iranian law, with the proposed name "sequential liability". Various instances of this type of liability will be traced through different laws and put together as a coherent category. These include: sequential liability between the invalid (the insane and the minors) and their culpable guardian (Article 7 of the Civil Liability Act), sequential responsibility between different persons for paying alimony to their relatives (Articles 1198 et seq. of the Civil Code), sequential responsibility between the director of a legal entity and the entity itself to compensate for damages caused by a crime (Article 28 of the Protection of Authors, Writers and Artists Act, legislated in 1970), sequential liability between limited liability and general partnership companies and their partners/shareholders (Articles 126, 186 and 187 of the Commercial Code), sequential liability between the company and its culpable director against third parties (Article 143 of the Amendment to the Commercial Code), and sequential responsibility between the Aqila (paternal relative of the felon),
the felon, and the public treasury, to pay blood money (Articles 470, 435, 471, 474 and 475 of the Islamic Penal Code). Instead of focusing on divergences, the article will explore similarities and common elements in various cases, as is necessary in any scientific research. Common elements are: a) sequentiality, which means the sequential relation between a number of obligations based on a specified priority; b) multiple properties, meaning that sequential responsibility shifts, at each level, from one liable person’s property, to the property of the person in the next rank; c) one debt, meaning that the content of obligation is the same for all sequential ranks, bearing same qualitative and quantitative characteristics. Finally, by induction from various bodies of law, and by taking into account the purpose and the rationale behind this type of responsibility, the general rules governing it, which are applicable in similar cases or when no specific rule can be found in the texts, will be formulated as follows: first, the aim of sequential liability is to support both the creditor and the debtor, in that the creditor will have access to multiple properties to collect the debt, and the debtor will not be forced to face hardship by fulfilling the debt. Thus, this is a genuine category of responsibilities, along with the individual and the joint responsibility; second, as to the relationship between sequential debtors, since each of them is paying his own debt, he cannot, in principle, claim against those in the previous or the next rank to refund what he has paid, such as is the case for the one who pays the relative’s alimony; third, the scope of sequential responsibility, in accordance with its rationale and its premises, is that each debtor in any rank is responsible for all of the debt, and only the portion he failed to pay will be transferred to the next rank. As for the case where several debtors are in the same rank, the rule is that each will have to pay an equal share of the debt.
کلیدواژهها [English]
منابع
الف) فارسی و عربی
DOI: 10.22059/jlq.2013.32000
ب) خارجی
)