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LAW ON PROCEDURE OF OBTAINING RIGHTS
CHAPTER 1:
GENERAL PROVISIONS
Article 1:
(1) This law is enacted to regulate related affairs to the procedure of obtaining civil and commercial rights of natural and legal persons.
(2) Civil and commercial rights of natural and legal persons shall be obtained according to Hanafi sect’s interpretation of Islamic Sharia and provisions of this law.
Article 2:
This law shall be implemented in Center and provinces, through relevant branches of Ministry of Justice.
Article 3:
All Emirate administrations must cooperate with Ministry of Justice in implementation of this law.
Article 4:
According to the provisions of this law, all administrations except courts are duty bound to refer received petitions on civil rights to relevant office of Hoqooq.
Article 5:
Police authority shall fully assist Hoqooq administration in obtaining rights and arresting accused.
Article 6:
(1) The petitioner while claiming rights shall file the petition in a court where the accused reside.
(2) The wife while demanding her expenditure and clothing from her husband is not required referring to the resident of her husband. In this case, local Hoqooq office of the wife resident is duty-bound to inform Hoqooq office which located in husband resident area.
(3) Traveler and monad, while making loan contract, can go to the nearest Hoqooq office. In this case both parties (creditor and debtor) are required to submit written guarantee to Hoqooq office.
Article 7:
According to the provisions of this law, resident area means as following:
1 – Place where a person is living since one year.
2 – Place where a person has permanent job.
3 – Place where a person has business activities.
4 – All other places which are considered in Emirate laws, as residential place.
Article 8:
Indebtedness of natural and legal persons and their repetitive shall not cause them to be deprived of freedom.
Article 9:
(1) A person shall demand his/her rights through official application.
(2) Full identification of petitioner and respondent, reason for petition and signature or finger print of petitioner are necessary be in application paper. If the claimed property (movable or immovable), the petitioner is required to mention the price of the property.
(3) The applicant must attaché (copy or original) deed or legal document to his /her application to Hoqooq Office, otherwise Hoqooq Office is not entitled to approve any right to the applicant.
(4) Hoqooq Office has the right to cut 10% of the obtained amount from the debtor and shall officially deposit it to Emirate account.
Article 10:
The followings are the documents based on which the rights can be obtained:
1 – Documents which are issued by authorized courts as the final decisions, without any forgery and fraud.
2 – Documents which are issued by Afghan embassies and political agencies and attested by Ministry of foreign affairs.
3 – Final decisions which are issued by courts in other countries between Afghans and foreigners based on international private law and attested by the Ministry of Foreign Affairs.
4 – All other documents which have legal status.
Article 11:
If the right of a person (natural /legal) based on provision set forth, was under process in Hoqooq Office, the case shall be referred to court, but if the accused had objection he/she can claim his /her right in court.
Article 12:
(1) Except those who are given priority right by law, all creditors shall have equal rights in the possessions of debtor.
(2) If all creditors had equal rights (from priority point of view), the rights of all creditors shall be obtained at the same time. If debtor’s possessions could not satisfied the rights of all creditors, the possessions of debtor according to the provisions of this law, shall be equally divided among creditors.
(3) The procedures mentioned in this article, shall be preceded by authorized courts, based on recommendation of Hoqooq Office.
CHAPTER 2:
DUTIES AND JURISDICTIONS
Article 13:
To review applications and return the rights to the owners, Hoqooq administration shall have the following duties:
1 – To register received applications and give receipt to applicants.
2 – To summon accused trough police force.
3 – In primary stage, governmental and private employees shall be officially called and in case they refused to attend Hoqooq Office, shall be conscripted by police.
4 – Armed forces shall be conscripted by their relevant authority.
Article 14:
(1) After summoning the debtor, the Hoqooq Office shall inform the debtor about the charges made against him/her.
(2) Hoqooq Office shall return the right to the petitioner with 10 days in case he was entitled according to the provisions of article 10 of this law.
Article 15:
After a written agreement between creditor and debtor, Hoqooq Office can postpone or exempt the right.
Article 16:
(1) Hoqooq Office shall be duty-bound to get bail/security from accused that he will attend upon request by Hoqooq Office.
(2) Bailer shall be responsible to bring the accused to Hoqooq Office upon request.
Article17:
Hoqooq Office shall be responsible to return the debt to its owner within the time specified in paragraph 2 of article 14. The following cases are exceptional:
1 – If the creditor agrees upon installment or extension the time.
2 – If the debt is exempted by an authorized court.
Article18:
(1) Hoqooq Office can with the consent of the head of local authority and considering the economic status of debtor recommend installments to the court.
(2) The above installments shall be monthly and not be more than 9 installments.
(3) In case of pay in installments, Hoqooq Office shall charge 10% from the first installment. But if the debtor pays all installments without Hoqooq intervention he/she will be exempted from charging that 10%.
(4) In case the debtor sells his/ her property to creditor to compensate his/her debt, he/she shall be subject to 10%.
(5) In case the debtor mortgages his/ her property to creditor, he/she shall be charged 10%.
(6) (Expenditure and clothing) shall be charged 10% by Hoqooq Office.
(7) If Hoqooq Office charged debtor 10%, he/she shall be exempted document fee.
(8) 10% shall not be taken directly by Hoqooq Officer from debtor, but it must be paid to the nearest bank, in accordance with administrative procedures by filling a specific form and the receipt shall be returned to Hoqooq Office. If for some reasons Hoqooq Office directly takes the above mentioned 10%, they shall deposit it the bank within (48) hours, otherwise they will be treated according to law.
(9) If the debtor was unable to pay the 10% at once, Justice Minister or governor can divided into installments.
Article 19:
Issues concerning civil and commercial rights shall not be subject to investigation. If the claim was not supported by sufficient evidences or the denied, based on civil procedure the case shall immediately be referred to the authorized court.
CHAPTER 3:
RESPONSIBILITY OF DEBTOR AND
GUARANTOR
Article 20:
Debtor shall pay all debt upon request creditor, unless the parties otherwise agreed.
Article 21:
Creditor can ask his/her debt at anytime. Unless the parties otherwise agreed.
Article 22:
In the following cases, guarantor shall pay the debt:
1 – Bankruptcy of debtor.
2 – In case debtor was absent and left no property.
Article 23:
For debt payment, a debtor may be obliged to sell his/her property.
Article 24:
(1) If the debtor didn’t pay the debt on the request from creditor or Hoqooq administration he/she shall be forced to pay it.
(2) The debtor shall be compelled to pay the debt from his/her those properties excluding basic needs.
(3) The above compulsion shall be based on Hoqooq Office’s suggestion and court order.
(4) The properties set forth in paragraph (3) of this article, shall be put on public sale, by the representatives of Hoqooq Office, local administration, municipality, police and others in presence of debtor. After selling the debt shall be paid to creditor.
Article 25:
(1) Basic needs of debtor mean a residence and the luggage without which the person can not live a normal life.
(2) The list of the tools incorporated in paragraph (1) of this article shall be identified and determined by an in-charge delegation of the representatives of Hoqooq Office, the Municipality and Police Department. The aforementioned list shall be confirmed by the Minister of Justice in the capital and in provinces, shall be confirmed by the relevant governors.
Article 26:
(1) If sale of the movable properties of the debtor is not sufficient for the payment of debts of the creditor, the Hoqooq Office, upon the request of the creditor, may prepare the list of immovable properties of the debtor and refer it to an authorized court to be taken in execution.
(2) If the debtor abstains from the sale of immovable properties embodied in paragraph 1 of this article, the Hoqooq Office shall refer the case to an authorized court proposing compulsory sale of the immovable properties. If so, from among prosecutors, the court appoints a prosecutor to confess for the sale of immovable properties instead of disobedient debtor during the trail. This confession shall be considered as a confession from the debtor.
(3) The sale of immovable properties shall take place by bearing in mind the provisions embodied in paragraphs (2), (3), and (4) of article 24 of this law.
(4) If transfer of ownership of the movable properties of debtor necessitates legal deed and confession, such measures shall be adopted in accordance with the provision of paragraph (2) of this law.
Article 27:
(1) Price determination of residence (shelter) in the canter of cities shall take place according to paragraph (5) of article 65 of the Law on Municipalities.
(2) Price of residence (shelter) in all other places shall be determined by the local administration by using the expertise of experts.
(3) If the price of the specified residence embodied in paragraph (1-2) of this article is more than specified amount of debt, the sale of such residence upon the request of creditor and suggestion of court can take place only when the amount in excess of the debt of creditor is sufficient for the purchase of a ordinary shelter for debtor.
Article 28:
If the compulsory implementation of court’s decision is disrupted by the debtor, he/she shall be considered disobedient and shall be treated according to provisions of law.
Article 29:
The bankruptcy of debtor shall be verified upon his/her request and order by an authorized court and in accordance with the provisions of law.
CHAPTER 4:
EVACUATION AND HANDOVER
Article 30:
Based on legal document (deed) of the owner and in the absence of other annulling document, the evacuation of property of owner from the possession of other person shall take palace upon his/her request and discretion of an authorized court by the delegation mentioned in paragraph (4) of article 24 of this law.
Article 31:
If the tenant does not evacuate the commercial site(s), whilst the owner needs the site(s) to be evacuated, such sites can be evacuated according to the discretion of an authorized court.
Article 32:
(1) After contract completion, the tenant shall not keep the property of the owner in his/her possession unless the owner agrees.
(2) In the capital and, the Minister of Justice and in provinces, the relevant governors may grant the tenant a timeline of three months pertaining finding a residence. This timeline may not be extended unless there a written consent of the owner of property.
Article 33:
If the contractor takes possession of other’s property as a result of contract and disappears for at least 6 months and due to his/her absence, the rent and other incomes stop, the Hoqooq Office may take action regarding the evacuation and handover of the property according to the discretion of competent court.
Article 34:
Court discretion suggesting the evacuation and handover of the property mentioned in article 33 of this law shall be publicized through radio or a state daily newspaper which has a wide range circulation. In case of not returning of the absent person after the completion of three months timeline, necessary actions shall be taken in accordance with the law.
Article 35:
(1) If the absent person has no legal representative, the properties obtained after the evacuation by the delegation stated in paragraph (2) of article 25 of this law shall be explained and prepared in three copies and shall be sent to the competent court, the Municipality and Hoqooq Department one copy each to be saved.
Till the absent person or his/her legal representative returns, the obtained properties shall be officially submitted to the original owner of the evacuated property or any safe place specified by court in accordance with the discretion of the court.
(2) If the properties specified in paragraph (1) of this article require more technical explanation, the professionals can be consulted.
If such measures require expenditures, the owner shall bear the expenditures.
Article 36:
(1) If it is identified that the obtained properties will lose its original characteristics and is perishable with the passage of time, the Hoqooq Office can take appropriate measure regarding the sale of the mentioned with discretion from a competent court.
(2) The money of sale of the property shall be deposited in bank till the owner or the legal representative of the property become present.
CHAPTER 5:
LEGAL REPRESENTATION IN OBTAINING
RIGHTS
Article 37:
Succession in obtaining rights shall take place in following circumstances:
1 – If the creditor has the documents enabling him/her in getting debt back.
2 – If the creditor, due to some just excuses, can not go the residency of the debtor who lives in other province.
Article 38:
In case the conditions mentioned in article (37) of this law are met, the Hoqooq Office shall take the following actions regarding the residency of the debtor:
1 – Officially send the copy of the documents of creditor to the local Hoqooq Office where debtor lives, after putting official stamp on the documents.
2 – The local Hoqooq Office where debtor lives, shall take appropriate measures on behalf of the creditor to obtain the rights.
Article 39:
(1) If the debtor does not have any document that can repeal the creditor’s claim, the local Hoqooq Office shall obtain the debt mentioned in the document of creditor and send it through bank to Hoqooq Office where the creditor lives.
(2) The local Hoqooq Office where the creditor lives shall handover the obtained debt to creditor against a written receipt and shall officially send the written receipt to the debtor.
(3) The creditor shall bear the expenses incurred from transfer of money.
CHAPTER 6:
FINAL PROVISIONS
Article 40:
If the petitioner does not follow procedures of his/her petition in a month time, the mentioned petition shall be stopped from further proceeding by the order of Hoqooq Department in the capital and in provinces, by recommendation from local Hoqooq Office and decision by the relevant governor.
Article 41:
The debtor who does not obey the provisions of this law, shall be considered criminal and the Attorney General Office shall prosecute him/her.
Article 42:
If the guarantor abstains from providing the debt with out any legal excuses, he/she shall be treated as disobedient debtor.
Article 43:
The Hoqooq Office shall have a special stamp.
Article 44:
The Hoqooq Department of the Ministry of Justice shall propose identical offices for the capital and provincial Hoqooq Offices.
Article 45:
The head of Hoqooq Offices in the capital and provinces shall officially report about its activities and achievement every 3 months.
Article 46:
This law shall be effective after the date of approval and shall be published in Official Gazette. When this law becomes effective, the Law on Obtaining Rights published in Official Gazette No. 646, dated September 6, 1987, shall be repealed along with its amendments.
Regards,
Mulla Omar
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