Case Law: How Iran courts apply the Law?
Iran Legal System is a “Civil System”.See The Common Law and Civil Law Traditions
What case law does in Iran Legal System?
Despite of the fact that Iran has a civil system, case law plays a role. It clarifies the rights and obligations codified in Laws. It also can make a precedent for courts in similar cases.
According to Article number 167 of Iran Constitutional law:
“The judge must try to base the verdict of each dispute on the codified laws. If his attempt fails, he should issue the verdict on the case by referring to reputable Islamic sources or religious rulings (fatwas). He cannot refrain from issuing a verdict under the pretext of silence, deficiency, brevity, or inconsistency in the laws.”
Click Here to download pdf version of Iran Constitution from WIPO website.
Instruments a judge can employ to decide in a dispute:
1- Interpretation of contract. 2- Interpretation of a clause of contract. 3- Interpretation of a vague enactment.
In Iran, case law is not a source of rights and obligations but it can develop a mechanism for executive part of law. This part is usually based on interpretation of Laws. In interpretation of a law or regulation, sometimes courts create a routine. This routine if widespread enough can become a mechanism.
Another type of case law is under authority of Supreme Court. This type is also base on interpretation. The Supreme Court can determine the meaning of an interpretable rule. This determination of Supreme Court works as a Law.
In a nutshell, there are two types of Case Law in Iran:
1- A routine that is common in similar cases. We can call it a “precedent” (in another word: they usually decide like this). This precedent is not Law. It is not binding and it can change periodically. It also can change because of new Laws.
2- Supreme Court case law. In this type, the Supreme Court determines the meaning of a vague law. This type also has two kinds: binding and non-binding. The binding case law can change only by an Act of Parliament. The non-binding case law is like a routine case law.
The difference between these two is about circumstances that resulted in decision: The Supreme Court issues a non-binding case law only for a special case in special court so it is binding only for that special court in that special case. The binding case law is binding for all courts.
A non-binding case law is not binding for other courts. It also is not binding for that special court in other similar cases. Despite of this fact, this type of case law usually creates a routine.
Case law is not a source of rights and obligations. The source of rights and obligations is only Law. Law is the enactment ratified by Parliament. The courts are responsible for applying the Law and sometimes they need to interpret the Law.
These are some examples of Case Law regarded to Foreign Nationals in Iran Courts:
1- If an Iran national wants to abandon his/her Iranian nationality, the Board of Ministers should decide on the subject. If the Board of Ministers reject this request, this decision could not objected in a court. This decision is not merely legal because nationality is not merely a legal right. This is a non-binding Supreme Court case law.
2- Iran Courts can apply foreign laws but it is on the parties to citing these laws. This is a precedent.
Case Law can be about every aspect of judicial relations like marriage, contract, nationality, residency, company, import and export. To the extent that foreign nationals are involved, it can effects their rights and obligations directly or indirectly.
A case law is for clarification of the Law itself. It is important to know what the law says and what the case law clarifies about it.
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