نوع مقاله : نقد رای وحدت رویه
نویسنده
گروه حقوق خصوصی و اسلامی دانشکده حقوق و علوم سیاسی دانشگاه تهران
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسنده [English]
According to the unification of Judgments decision of the supreme court, No. 43 dated 01/11/1971, Contrary to the substantiated and documented theory of the country's general prosecutor, the ruling of Article 117 of the Registration Code is related to a conflicting transaction that is made with a notarial document. Because despite the mandatory registration of documents, if the transaction of real estate is done with an ordinary document, based on Articles 46, 47 and 48 of the Registration Code, that ordinary document is not actionable in the court. As a result, its contents will not have the ability to conflict with the notarial document of the next contract so that the action can be considered subject to Article 117 of the Registration Code. This interpretation is clearly against the text of the law.
Because the legislator, knowing the provisions of Articles 46, 47 and 48 of the Registration Code, added "ordinary document" to the first part of Article 117, in the amendments of 1312 and in this way, it has supported the purchasers with an ordinary document and prohibited the sellers from doing any transaction contrary to the first contract with criminal penalties.
Because according to Article 62 of the Law on the Development of the Country approved in 2016, ordinary documents whose legal validity has been proven in the court will have the ability to conflict with the notarial document. And this ruling contradicts the reasoning of that unification of judgments decision and is in conflict with it. As a result, the recent law has implicitly abrogated that decision. Therefore, in the current legal situation, the Article 117 of the Registration Code applies to all notarial transactions that are contrary to the ordinary or notarial transaction.
کلیدواژهها [English]
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