According to Khabaronline news agency, the topic of reduction Guarantee of criminal execution of dowry Since last year and maybe even before that, it has become one of the important legal and social issues of the country; On the one hand, the issue is related to the inability of some men to pay the dowry due to the increase in the price of coins, and on the other hand, to the financial and social rights of women as the only legal means in a joint life.
According to Isna’s report, in this regard, the Islamic Council, during the review of the proposal to amend articles of the Law on the Execution of Financial Convictions and the Civil Code, agreed to determine the quorum of 14 coins to guarantee the implementation of the provision in Article 3 of the Law on the Execution of Financial Convictions; In this sense, in dowry up to 14 coins, the provisions of Article 3 are applicable, and in the case of excess, the payment criterion will be the fullness of the couple. Also, in cases such as the dowry that the convict did not receive in return for the financial debt, the monitoring of electronic systems is foreseen as a mechanism for the execution of the sentence.
Of course, this decree has not set a limit for the dowry in any way, and it is not like the law has limited the dowry to 14 coins; Rather, the guarantee of its implementation is limited; This means that if the resolution is finalized and it becomes a law, if a woman demands dowry during marriage or after issuing a divorce decree, the legislator will only limit the guarantee of the implementation of this amount and after that the woman must prove the financial ability of the man. However, this resolution has become one of the most important axes of dispute between the parliament and women’s rights activists.
In the meantime, this plan, which was approved by the Parliament on the first of September this year, after being reviewed by the High Board of Monitoring the Good Implementation of the General Policies of the Expediency Council and declaring that it contradicts the general policies of the system, was also reviewed by the Guardian Council and found to have Sharia defects and ambiguities. But what were the objections of the Guardian Council to the approval of the parliament?
This resolution, in six articles, provides rulings about the use of electronic monitoring for financial convicts, identification of debtors’ property, adjustment of debt installments, transfer of property with the motive of escaping from religion, and some rights and duties of couples. An important part of the opinions of the Guardian Council is devoted to the limits of the use of electronic monitoring and guaranteeing the implementation of dowry collection. According to the statements of Hadi Tahannazeef, the spokesman of the Guardian Council, “One of the council’s objections to this plan is related to maintaining the possibility of dealing with a capable debtor who refuses to pay.” In the supplementary note “4” of the subject of article “1” of the resolution, it is stipulated that in cases where the debtor has not received money against his debt, such as dowry, dowry and some damages, only the monitoring of electronic systems shall be applied. Accordingly, in these cases, the judge will not be able to choose detention in prison. For this reason, the Guardian Council recognized the application of this ruling as against Sharia, because not receiving money against the debt does not necessarily mean the debtor’s inability to pay. A person may be able to pay, but refuses to pay the debt and delays the creditor; The situation that was mentioned in the council’s statement under the title “debtor of Muser Mamatal”.
This legal member of the Guardian Council also explained that “in some cases, the judge may find it necessary to keep a person in prison, but the word “only” in the phrase “only the monitoring of electronic systems is applied” prevents such a decision. Therefore, the Council’s objection is directed towards the monopolization of electronic monitoring in all these cases and the limitation of the judge’s authority to collect the creditor’s rights.
The second objection of the Guardian Council is related to limiting the guarantee of dowry collection to 14 coins; According to Tahan Nazif, “the result of this ruling is that even the electronic monitoring foreseen in the decree is not applied to collect more than 14 coins. In simple words, Article (3) foresees the possibility of imprisonment in order to force the debtor who has the financial ability to pay the debt, in compliance with the legal conditions, but if the court accepts his inability to pay, the imprisonment will not continue to collect the same debt. Therefore, the system for dealing with insolvency or the debtor’s inability to pay the debt should be modified in such a way that the truly incompetent debtor does not needlessly go to jail due to the difficulty of proving his financial situation; A necessity that the members of the Guardian Council have also emphasized.”
According to Tahan Nazif’s explanations, “the basis of the Guardian Council’s objection to the ruling of this article can be explained as follows: in the application of this performance guarantee, the status of the borrower or debtor, i.e., the inability or financial ability of the debtor, must be a criterion, and setting a numerical limit of 14 coins cannot replace this criterion. In this respect, there is no difference between the dowry of one coin and the dowry of tens or hundreds of coins; Because if the husband has the ability to pay his debt, he must pay it to the wife, and the fact that the dowry exceeds the limit of 14 coins should not destroy the guarantee of the collection of the surplus part. On the other hand, if the couple’s arrears have been proven, even in the dowry of one coin, the guarantee of imprisonment should not be applied to a debtor who is really unable to pay. The resolution has limited the performance of this guarantee to 14 coins, even for capable debtors; Therefore, the council has recognized the “monopoly of including the provisions of Article 3 to 14 coins” as against Sharia.
The next objection of the Guardian Council is the necessity of setting clear criteria for electronic monitoring and paying attention to justified excuses; Additional note “3” considers imprisonment to include keeping in prison or restricting a person using electronic systems monitoring. The Guardian Council has recognized the term “restricting a person” as ambiguous due to the lack of clarity in the restriction rule. Also, in note “5”, the rules for determining the “specified range of care for residence and employment” are not clear. Determining these criteria is important; Because the limits of commuting and the possibility of a person’s presence in the place of residence and work must be clear.
The spokesperson of the Guardian Council stated that another of the objections of the council is related to the clarification of the limits of the return of financial rights and property during divorce and said: “Under Article “6”, it is stipulated that if the wife has previously received all or part of her financial rights or has received property and gifts from the husband, the court can, at the request of the husband, make the issuance of a divorce decree conditional on the return of all or part of them.”
According to the statement of the spokesperson of the Guardian Council, according to this comment, the resolution needs to resolve Sharia defects and ambiguities, and the Guardian Council has postponed commenting on ambiguous cases to clarify the text so that the limits of the tasks of individuals, the powers of judicial authorities, and the guarantees of the enforcement of the rights of creditors and spouses are clear.
In addition to the objections of the Guardian Council, the judiciary also has reservations about some provisions of the parliament’s resolution; Considerations that show that the disagreement about this plan is not only limited to the way of Shari’a interpretation of the regulations, and an important part of it comes back to the executive experience of the judicial system in dealing with financial conviction cases. For example, Seyyed Ali Kazemi, the spokesperson of the Judiciary, in explaining the opinion of this institution about this plan, says: “In the matter of dowry, considering that dowry is determined on the basis of coins in many cases and the price of coins increases over time, a person may be faced with an obligation that he does not have the ability to pay.” The plan presented in the parliament seeks to provide solutions to determine the duties of a part of these financial convicts, which in the current situation, there is no suitable solution to solve their problem. One of the topics of interest is predicting the exclusive use of electronic binding and systematic monitoring instead of imprisonment and depriving the judge of the authority to use other enforcement guarantees. The judiciary believes that the judge should have the possibility to use other proportionate performance guarantees in necessary cases; An issue that the Guardian Council has also raised a Shariah objection to.”
He adds: “The mere use of electronic monitoring in all cases does not necessarily create a sufficient incentive to pay the debt; Because a person may be under electronic monitoring, but still not have the motivation or will to settle his debt. Therefore, it is necessary for the judge to reserve the option of choosing the performance guarantee that fits the circumstances of each case.”
Another issue considered by the judiciary is determining the ceiling of 14 coins in all cases; In this regard, Kazemi says: “Absolutely considering this amount for all cases is one of the cases that needs further investigation and consideration. In addition, there are some technical and legal problems in different layers of the plan, and the judiciary is trying to find a more suitable solution to solve these problems.
According to Kazemi’s explanation, the judiciary’s approach in this field is based on two basic principles; First, people who are really unable to pay their debts should not stay in jail just because of financial incapacity; Because the prison is not a place to keep incompetent financial debtors. The second principle is that for people who have the ability to pay, an effective and proportionate guarantee should be provided to ensure the rights of creditors and those who have lost property. Creditor’s rights cannot be ignored; Especially in cases where the person has succeeded in receiving the verdict after going through the judicial process and many difficulties and the case has reached the execution stage. In such a situation, the judicial system must take effective and necessary measures to fulfill his right.”
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