Private Law
Seyyed Mostafa Mohaghegh Damad; hani hajian
Abstract
By passing Article 729 of Civil Procedure Code of 1318, term of “Civil Penalty” was entered in Iranian legal system which of course it is an adaptation from "Astrant" –a legal entity -in French legal system. By passing Civil Procedure Code of 1379 and because of its changes and modifications ...
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By passing Article 729 of Civil Procedure Code of 1318, term of “Civil Penalty” was entered in Iranian legal system which of course it is an adaptation from "Astrant" –a legal entity -in French legal system. By passing Civil Procedure Code of 1379 and because of its changes and modifications that was without an article like Ex 729, some believed in Legally abrogation of such a legal entity from the Iranian legal system while the others think according to the note of Article 47 of the Law on Enforcement of Judgments, this entity still exists in our law. Notwithstanding about mentioned dispute, recently the legislature in some rules such as Note 1 to the repeated article 10 of The Rule of Ownership of Apartments and article 21 of The Rule of Execution of Financial Sentences has set kind of fine that is similar to “civil penalty”. Thus, here we intend generally to study Islamic and Iranian legal systems to determine; whether the entity of “civil penalty” is against Sharia law or not and what it is its nature? Or could we identify it as a general theory? Method which used in this research, was a descriptive-analytical typical (by using libraries facilities, to investigate the answer of these questions) and outcome shows: “civil penalty” is compatible with sharia and sort of punishment that we call it “Taazirat” and we could identify it as a general theory and by the way it is similar to “punitive damages” in English law and also more functional than that entity. So if we pass it as a rule in our legislation, it can help lots of issues of civil law.
