ghazavat - No.5

A selection of latest legal approvals

The repetition of swear is forbidden for issuing the judgment

Although the subjects related to obtaining the reasons in criminal affairs are of the subjects presented in criminal procedure law, for the reason of the special situation of the murder and stating the legal regulations of murder’s proving, the sixth chapter of the Islamic punishment law has been attributed to the way of the murder’s proving. According to the article 231 of the mentioned law, the ways of murder’s proving in court are as follow: 1. Confessing 2. Witnessing 3. Compurgation 4. Judge’s knowledge. Of course, the quality and quantity of Compurgation have been stated in law and the law has specified the cases in which Compurgation is necessary. There was a case in the law in which swear was repeated by the claimant when the number of the takers of swear were less than 50 individuals. In this case, each individual who has taken an oath can repeat his swear till the number of swears reaches 50. If there isn’t any person from the claimant’s relatives (who have blood relationships) for Compurgation, the claimant can take 50 swears even if the claimant is a woman.

The circular letter No. 77/11/29-77/12990 was notified by the judiciary power including the leader’s opinion. He has announced that in cases, which the number of the takers of oath is, less than 50 (in claimant’s part), there is a serious problem in the execution of the judgment according to this Compurgation.

According to the above mentioned letter, the articles of the Islamic punishment law related to Compurgation i.e. the repetition of swear by the claimant, for issuing the judgment of retaliation have no effect, and the accused himself can take 50 oaths in the case of not existing any of his relatives or kinsmen.

In short, the following points take the attraction in the discussion of Compurgation:

-Obtaining the doubt is the main introduction of the Compurgaton

-Paying the blood money from public treasury in the case of the defendant’s acquittance and not recognizing the murderer

-Not being permitted the repetition of swear by the claimant

The corrective law of some articles of the Islamic punishment law

Approved in 1991

Article 1. The following phrase is added to the end of the article 239 of the Islamic punishment law approved in 1991:

-and in the case of not being the proof for the claimant, the murder or injury and so on are proved by Compurgation. The way of proving the case is mentioned in the next articles.

Article 2. If the defendant denies his presence in the place of the murder, and there isn’t any evidence to prove that the murder has happened by him, it won’t be considered as instance of doubt. Unless the claimant presents a proof indicating the defendant’s presence in the place of the murder at the time of the accident, and causes to intensify the doubt that the murder has happened by the accused. In this case the doubt is proved, and the claimant must claim Compurgation. If he refuses to claim the Compurgation, he can demand it from the accused. In this case, the accused must act according to the article 247 in order to acquit himself. If the accused refuses to do Compurgation, he is convicted to pay blood money.

Note: In the cases of Compurgation, if the acquittance of the accused is proved and the murderer isn’t specified, the blood money of the murdered is paid from the public treasury.

Article 3: Article 245 of the mentioned law is corrected as follows.

Article 245- In the case of not existing evidences, which intensify the doubt that the accused has killed the murdered, the mere presence of the accused in the place of the murder can’t be computed the instance of doubt and the accused is acquitted by swearing.

Article 4: Article 246 of the mentioned law is corrected as follows.

Article 246- whenever the accused brings proof to acquit himself, the doubt isn’t proved and he is acquitted.

Article 5: Article 248 and its notes NO. 2 & 3 are corrected as follow.

Article 248- In doubt cases, the premeditated murder is proved by the swearing of 50 men. The takers of swears must be of the claimant’s relatives who have blood relationship with him.

Note 2- If the number of oath takers in favor of the accused is less than 50 individuals, each man of the oath takers can repeat his swear in so far as the number of the swears reaches 50.

Note 3- If the accused can’t bring 50 individuals of his relatives who have blood relationship with him to swear, he can swear 50 times and become acquitted.

Article 6: The phrase “claimant or” is omitted from the content of the article 249 of the mentioned law.

Article 7: Article 252 of the mentioned law is corrected as follows.

Article 252- In doubt cases, if there are several claimant, swear of 50 individual is adequate. But, if there are several defendants, each accused must execute Compurgation to acquit himself. In the case that they don’t have enough oath takers (50 individuals), each accused can swear 50 times to acquit himself, according to note 3 of the article 248.

Article 8: Article 253 of the mentioned law is corrected as follows.

Article 253- The adequate number of Compurgation in quasi-intentional murder and mere mistake is 25 individuals. It is execution procedure of this article is according to the article 248 and its notes.

Article 9: Article 254 of the mentioned law is corrected and 2 notes are added to it as follow.

Article 254- In the case of injuries, retaliation isn’t proved by Compurgation. It just causes the accused to pay the blood money. The adequate number of Compurgation for injuries is as follow:

I) In the cases that the injuries cause the accused to pay complete blood money, the injured and 5 more other persons take swear.

II) In the cases that the injuries cause the accused to pay 3/4 of complete blood money, the injured and 4 more other persons take swear.

III) In the cases that the injuries cause the accused to pay 2/3 of complete blood money, the injured and 3 more other persons take swear.

IV) In the cases that the injuries cause the accused to pay 1/2 of complete blood money, the injured and 2 more other persons take swear.

V) In the cases that the injuries cause the accused to pay 1/3 of complete blood money, the injured and 1 more other person take swear.

VI) In the cases that the injuries cause the accused to pay 1/6 of complete blood money, the injured person takes swear by himself.

Note 1- About every above mentioned parts, in the case that there isn’t the adequate number of oath takers, the victim can repeat swear to reach the mentioned number.

Note 2- About every above mentioned parts, in the case that the amount of blood money is more than the mentioned amount of that part and less than the amount mentioned in the previous part, the larger number should be considered in compurgtion. For example, if the amount of blood money is equal to 1/4 or 1/5 of complete blood money, the adequate number for Compurgation is equal to the number mentioned in part E (its previous part); i.e. two oath takers are necessary.

The above law includes 9 articles was approved by the Islamic Council Assembly in an open session in 13.1.01 and was confirmed by the Guardian Council in 23.1.01

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The constitution change of trade law’s article 19

about small business after the year 2001

In the trade law’s article 19 approved in 1933, the small businessmen mentioned in this chapter and the first chapter are distinguished according to the constitution regulations of justice ministry. In direct taxes law’s article 96, the businessmen of 19 jobs have been mentioned who are obliged to register their occupational activities in newspaper offices and they must keep the related documents and evidences regarding the accepted principles, scales and standards. In this new constitution, the individuals who are not mentioned in article 96 are considered as small businessmen.

The new constitution of trade law’s article 19 approved in 1933

No. 1380/11/9-1/80/21243

The respectable manager of formal newspaper

A copy of the new constitution of trade law’s article 19 approved in 1933 which has been approved by the respectable chief of judiciary power is sent to be inserted and published in the formal newspaper.

Single article: The following natural individuals who aren’t the examples of the mentioned persons in article 96 of direct taxes law, are considered as small businessmen in the case that they include the following conditions:

1.The business, tradesmen, producers and so on that the amount of their yearly sale wouldn’t exceed the sum of 100,000,000 Rials.

2.The service givers of any fields that their wages (for the presented services) wouldn't exceed the sum of 50,000,000 Rials per year.

3. By the execution of this constitution, the constitution No. 7044 dated in 1933 is cancelled.

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The endowment administration’s competency in distinguishing the guardian of endowment

property isn’t the prohibition of

justice administration’s public competency.

The establishments and authorities law’s article 14 of the endowment and charitable affairs organization approved in 1975 has determined that research about the collection and spending of the endowment property’s incomes, issuing the certificate of liquidation, adjusting the property with the endowment deed’s content, recognizing the guardian, the observer and the beneficiary of an endowment are done by the investigation branch of above mentioned organization.

Unless in the cases that the guardian of the endowment has already been specified. Of course it should be considered that there wouldn’t be the doubt of guardian’s oppression and injustice. Some of trials believed that the claim of endowment property’s guardian request couldn’t be presented in justice administration according to this document, and they issued the writ of the court’s lack of competence in favor of the endowment organization. The following proceeding issue specifies that the justice administration as a source of demanding justice can’t negate its own competency.

The proceeding issue of Supreme Court’s full bench

No. 1380/9/27-655

According to the principle 159 of the Islamic Republic of Iran’s constitution law, and as the Supreme Court’s full bench has already announced in the proceeding issue No. 1370/10/10-569, the justice administration is the formal source of demanding justice and examining the complaints. The competency of non-justice administration sources can’t negate the public competency of justice administration sources. Therefore, the competency of endowment organization’s investigation administration can’t prohibit the public court to examine the mentioned claim. So the verdict No. 1378/5/31-22/272/78 of the Supreme Court’s branch 22 which is based on this opinion is distinguished as correct issue. All branches of the Supreme Courts and the courts must obey this judgment which has been issued according to the article 270 of the public and revolution law’s in criminal affairs.

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It is possible to deduct the salary and advantages of a person who has possessed the staff

quarters until the evacuation date of the place.

The Full Bench’s issue No. 1380/11/2-13/80/H:

According to article 3 of the law about the conditions of using staff quarters approved in 1967, in the case that the person who lives in the staff quarters doesn’t evacuate the house during determined extension, his salary and advantages (and if he is retired, 1/4 of his retiring salary) are deducted in favor of the related organization until the date of evacuation and deliver of the house. Therefore, the verdicts of revision courts’ first, fourth and fifth branches which are according to this issue, are based on the legal principles and scales. All the courts’ branches and related sources must obey this judgment which is based on the recent part of High Administrative Court’s corrective article 20 approved in the year 2000.

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The main idea is that the water and waste water companies

would be non governmental.

The full bench’s issue No. 21& 24/80 and 1380/10/11-192/79:

The formation law of the water and wastewater companies approved in 2001 has specified that these companies are formed by the energy ministry. This ministry supervises on administrating the affairs of such companies, by the correction of the constitution and agreement with the investment of legal and natural individuals in these companies. The mentioned companies are exempted from paying different kinds of legal expenses such as charges, taxes, judgment expenses, possession right of lands and property situated in constructive plans. These expenses are determined according to the legal draft about the conditions of buying and possessing the lands and property for the execution of public constructive and martial programs of the government. This law and other similar laws show that the legal nature of water and wastewater companies are adjusted on the definition of governmental companies inserted in article 4 of public accounts law approved in 1978, provided that more than %50 of the capital belongs to governmental units. The note of article 3 of the mentioned law about the permission of formation and administrating of water and wastewater companies by the government isn’t useful for being non governmental of these companies in the case of existing the determined conditions in article 4 of the public accounts law. Also, it doesn’t negate the court’s public competency in examining people’s complaints about them in the law area of High Administrative Court. Consequently, verdict No. 2571, dated in the year 2000, issued by the initial fourth branch, and the verdict No. 583 dated in 1999 issued by the initial sixth branch of the Court are distinguished as judgments which are according to legal principles and scales. Paying attention to the existing conditions such as the amount of capital, which belongs to governmental units, these verdicts have known Tehran and Kashan water and wastewater companies as governmental companies. They have stated that their complaints can’t be heard by the Court and refused them. All the branches of the Court and other related sources must obey this judgment based on the recent part of corrective article 20 of High Administrative Court’s law.

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Around Table

JUDICIAL AND LEGALL COMMISSION’S REPORT

Answering the questions number 227 to 230

227.Is demanding the obtainable interests (which are the subject of article 9, part 2, of the criminal procedure law approved in 1999) acceptable or not, in the form of presenting the claim of damage and loss resulted from offence, paying attention to the prohibition of the subject of article 515, note 2, of civil procedure law approved in the year 2000?

Mr. Sedghi from shahid Mahalati complex:

According to the opinion of all judges, in spite of the fact that the obtainable interests (which is the subject if the above mentioned law) from loss and damage is considered offence, but the lack of interests mentioned in article 515, note 2 isn’t related to offence and is merely civil. Therefore, according to the obtainable interests and the compensation of lack of interests which is out of contract (automatic guarantee) that is commonly obtainable, is capable of demanding from the aspect of cause and effect regulation.

Mr. Sarvi, Varamin justice administration:

Most of the people who were present in the session believed that the meaning of the “obtainable interests” inserted in article 9, part 2 of the mentioned law, is “the certain, absolute and near obtainable interests” which the victim has lost for the reason of tolerance of the offence. On the contrary, “the obtainable interests” which can certainly be obtained by the owner of the interests, are the same as the interests which are probable to be obtained and aren’t included in article 9, part 2 of the mentioned law. It seems what has been forbidden in article 515, note 2, of civil procedure law, is the recent part of the interests i.e. the interests, which are probable to be obtained. Because the law has forbidden the compensation resulted from the lack of interests. So, each person can only demand the interests which he can absolutely and certainly access and reach to, not those which he can’t certainly obtain; whether the other party would refuse to do his obligation or he would lose some interests for the reason of another person’s committing an offence. What has been forbidden in article 515,note 2, is this part of the interests. This subject (that article 9, part 2 of the criminal procedure law states “the obtainable interests” are capable of demanding and article 515, note 2, of civil procedure law states that the interests which are probable to be obtained are not capable of demanding) has a legal justification. The first condition of receiving the compensation is that the person is sure of its certainty.(So he deserve to receive the compensation.) In the first law, this condition has been provided. But on the second case, it is not certain whether there is (will be) a loss or not. So, it isn’t capable of demanding. Therefore, the problem mentioned in the question, is acceptable. For example, a worker undertakes to do a job in 5 days and receives 50000 Rials per day. On the third day, can’t continue the job for the sake of an accident. Therefore, this worker deserves to receive not only the determined blood money but also a sum of 100000 Rials, because gaining an obtainable interest (which the worker was certain to obtain) has become impossible for him as a result of the accident. But the mentioned worker can’t receive the compensation of interests, which was probable for him to obtain in the next days.

The minority’s opinion:

In the mentioned law, it seems that there is a conflict in the question. According to the an Islam’s rule, we can’t act in favor of private claimant and complainant in criminal cases under the title of “loss and damage resulted from offence”, and based on the article 515, note 2, of civil procedure law we can’t accept the plaintiff’s claim. Therefore, it seems that these two approved rules have conflict with each other.

Mr. Azadbakht, Karaj justice administration:

We can divide the judges’ opinion about article 9, part 2,to two sections: 1.The obtainable interests, which are absolute and certain.

2.The obtainable interests, which aren’t absolute and certain.

The first case includes the interests that are related to the committed offence that the Islamic rules confirm it too. On the other word, they are the interests which are related to the committed offence directly and without any mediator. Also they are the same interests which have been mentioned in the articles 515 and 520 of civil procedure law and are capable of demanding. Moreover, the regulations of each criminal and civil laws will be applied within their own limitations and no conflicts will be supposed between them.

Mr. Farahani, Ghods judicial complex:

Paying attention to the explicit article 9,part 2, of public and revolution courts’ procedure law in criminal affairs which knows the obtainable interests resulted from offence as something which can be demanded, and considering the fact that there isn’t any relationship between the above mentioned law and article 515, note 2, all the colleagues in this complex believe that the obtainable interests are capable of demanding. They have explained their opinions by following cases:

1.These two words of the above laws haven’t been defined. The legislator, at first, must define the words and then use them in legal articles so that there remain no doubt in the article.

2. The criminal procedure law determines the ways of examining the specific penal affairs. It includes a collection of regulations and instructions, which are different from the civil procedure law. These two laws oblige the courts to separate duties in the examination of civil and criminal affairs. The articles of these laws aren’t the same as each other and therefore, they don’t have any conflict with each other. It is necessary to act according to each one in their own special cases.

3.If we suppose that these two laws are of the same species and they can have conflict with each other (that it isn’t so), it must be said that the criminal procedure law has specific regulations about the loss and damage resulted from offence. These regulations are specific about this subject relative to the civil procedure law, which is public. According to the absolute legal principles of law’s interpretation, no affixed public law can abolish the old specific law.

4. The meaning of these two words is basically different. “Obtainable interests” are those that a person enjoys them in common conditions and they are absolute and certain. But, in the case of happening an offence, the victim is deprived of them, like a taxi-driver that earns sum of money everyday by taking the passengers here and there. But, it is ordinary and common to or not to enjoy the interests resulted from contracts and interactions like a merchant who may or may not gain interest in an interaction.

5. According to the opinions of law scholars, there is a main difference between these two words. For example, the respectable judges of the Supreme Court have stated their opinions about the subject of “demanding the compensation of loss and damage added to blood-money”. They believe that “religious laws are based on common (custom) comments. Although the compensation demanded by the victim is an example of “lack of interest”, it is interpreted as a loss in the society. So, the deficiency of work and salary in the days of unemployment is the victim’s certain and undeniable loss, although the compensation of lack of interest can’t religiously be demanded.” The followingjudgmenthas been issued by the Supreme Court’ full bench:

For the reason of administrative trials, the premeditated battery has resulted in the leg’s fracture of the victim. So the court has convicted the defendant to pay the compensation of loss and damage in addition to paying the blood money. Considering the fact that the negation of the compensation of the victim’s other losses can’t be understood from the judgments and rules related to blood money, and paying attention to the fact that the compensation of the entered loss and damage means the same current loss and damage in the society, therefore, there isn’t any problem to compensate the loss.

The commission’s consultative opinion

The majority’s opinion:

Firstly, the subject of lack of interest mentioned in article 515, note 2, of the public and revolution courts’ procedure law in civil affairs approved in the year 2000, (related to the lack of interest’s compensation) is arbitrary. Whereas, the subject of article 9, part 2,of the public and revolution courts’ procedure law in criminal affairs is related to automatic guarantee and out of the subject of article 515, part 2. Secondly, the regulations of each civil and criminal procedure law apply within their own limits and there is no conflict between them. Thirdly, the obtainable interests are commonly interpreted as loss. Whereas, the second kind is conditional, imaginary, and based on probabilities, and there is a basic difference between them. Therefore, they don’t have any relationship with each other and the answer to the question is negative.

228. Paying attention to the article 129 of civil procedure law, in the case that the winning party win the tender, is there any need that he pays %10 of the property’s price as bid bound?

Mr. Sedghi, Shahid Mahalati complex of Tehran:

According to the opinion of all judges, paying attention to the article 127 of civil procedure law, the winning party like others can participate in the purchase. Therefore, all the regulations about the way of purchasing rule over it. Article 129 of the mentioned law obliges the winner to pay immediately %10 of the property’s price as a deposit to the execution part. It is illegal to except the winning party from the determinedjudgmentmentioned in article 129. Moreover, the mentioned sum acts as a guarantee for the execution unit’s operation and prevents from the repetition of tender and the spoil of the owner’s right.

Shahr-e Ray justice administration:

The majority of the colleagues believe that there is no difference between the winning party and other people. Since the mentioned sum acts as an guarantee for executive expenses in the case of buyer’s dispensing, so, the winning party is also obliged to pay %10 of the property’s price as a bid bound. The minority of the colleagues believe that the winning party enjoys legal right relative to property put up to tender, and there isn’t any need that he pays the bid bound. The execution units don’t actually obtain this sum.

Mr. Sarvi, Varamin justice administration:

All the judges believe that the winning party can be the buyer, according to the article 129 of the mentioned law. Therefore, what has been stated in the above mentioned law about tender such as obtaining the mentioned sum rules even in the case that the buyer is convicted. But if the price of the property is less than the amount of thejudgmentdebt, it is doubtable to obtain the mentioned sum from the winning party who has win the tender. Because the property is delivered to the winning party and in this case the bid bound means nonsense. On the contrary, some believe that, since the tender has been celebrated, it is necessary to obtain the mentioned sum if the bailiff accepts the promise of the winner for paying the price based on the execution of article 129. Because, there is a difference between the subject of “delivering the property to the winning party” and “delivering it to the losing party”.

Mr. Azad Bakht, Karaj justice administration:

The majority believes that paying the mentioned sum is obligatory. It acts as a guarantee in the case that the buyer refuses to pay the remainder of the anticipated price. Therefore, there isn’t any difference between the winning party who has participated in the tender and others. The must absolutely be paid.

The minority says in the case when the winning party is going to buy the property, which is evaluated equal to thejudgmentdebt, and he is the winner of tender too, there is no cause for him to pay %10 of the price. Because, even if he refuses to buy the property, at last, the property must be given to him. In the case that the price of the property is more than thejudgmentdebt, it seems justified to obtain the bid bound so that, if the winning party refuses to buy the property, according to the article 129, the bid bound is seized if he wins the tender and refuse to pay the remainder of the price.

Mr.Farahani, Ghods judicial complex:

Two points are understood from article 129 of civil procedure law: firstly,

Paying the bid bound is related to the time when the bailiff accepts the promise of the winner for paying the price; secondly, the winner pays the remainder of the price in lawful extension, if not the bid bound is seized in favor of the government. In the case that the value of the property is less than or equal to thejudgmentdebt, the bid bound means nonsense. But, if the value of the property is more than the bid bound, the winning party must pay it according to the article 129.

The minority believes that the purpose of receiving the bid bound is that the winning party accesses to the object of thejudgmentas soon as possible and thejudgmentis executed. Therefore, if the winning party is the winner of the tender and accepts it, he has acted in favor of himself; otherwise, the tender must be repeated and it tales a long time. So, it is obvious that this article is related to the winner of the tender other than the winning party.

The commission’s consultative opinion:

The majority’s opinion:

By approving article 129 of civiljudgmentexecution law, it was meant to avoid the repetition the tender and prevent from the spoiling of the right of the property’s owner. Since the price difference in the market may cause loss for the losing party, so according to the article 127 of the same law, the winning party like other people can participate in the tender. In the case of winning the tender, he is also obliged to pay the bid bound.

The minority’s opinion:

The article 129 of the civiljudgmentlaw has specified that the bailiff can accept the promise of the winner for paying the price. If the winner is someone other than the winning party, the bailiff receives the price of the property. The buyer pays the price and the object of thejudgmentis delivered to the winning party. Therefore, in the case that the buyer is the same as the winning party, paying the price and accepting the promise is nonsense, unless, the price of the property would be more than thejudgmentdebt. In this case, the difference of the prices is computed and the execution expenses are deducted from it. Then the winning party that is the winner of the tender must pay the price. It is not legal not to receive the difference price immediately. But, if we accept to receive the difference price sometime later, the winner must pay the bid bound immediately.

1. Article 129: The bailiff can accept the promise of the winner for paying the price of the property sometime later. In this case, the winner of the tender must pay the bid bound immediately to the execution unit. The mentioned extension would not be more than one month. If the winner doesn’t pay the remainder of the price in determined extension, his deposit will be seized in favor of the government after deducting the tender expenses and the tender will be repeated.

2. Article127: The winning party like others can participate in the tender. But the evaluators, bailiffs, and other individuals who are the advisors of the sail, also their relatives of any kind down to third degree, can’t participate in the tender.

229.Is telephone advantage considered as moveable property or not?

Mr. Azadbakht, Karaj justice administration:

According to the majority’s opinion, since telephone advantage has economic value and is capable of valuation, so it is considered as property. But it can’t be of moveable property because there are limitations to transfer it from one city to another one. Therefore, it is considered as immovable properties.

The minority believes until this advantage hasn’t changed to a telephone line by the execution of telecommunication administration’s regulations, it can’t be considered as property in especial meaning, but it is the right of the property. Therefore, it is neither moveable nor immovable property. But, about the trials’ competency and being financial or non-financial of the claim, it must be said that the subject is under the regulations of moveable property’s claims.

The reasoning of the majority about being immovable of telephone advantage doesn’t have any legal basis. Since a telephone line can be transferred from one place to another place, how can we suppose that it is immovable? The limitations of telecommunication administration based on the prohibition of transferring a telephone line from one city to another city don’t include the subject in immovable properties. If some regulations are approved once a time to forbid the transferring of a moveable property from one city to another city, these regulations don’t change the nature of the property. (Such as automobile)

Mr. Sedghi, Shahid Mahalatijudicial complex:

According to article 12 of the civil law, the definition of immovable property is as follows: “It is the property which can’t be transferred from one place to another place, whether its establishment is natural or situated by man in such a way that its movement includes destruction of the property or its place.” Paying attention to this definition, telephone advantage can’t be considered of immovable properties. On the other hand, it isn’t considered of moveable properties too. Because, according to article 19 of civil law, moveable property is “objects which can be moved from one place to another place without causing destruction to itself or its place.” According to the article 20 of civil law, in relation with trials’ competency, it is considered as moveable properties like debts and other rights.

Mr. Farahani, Ghods judicial complex:

According to the majority’s opinion, by paying attention to the definition of moveable and immovable properties mentioned in articles 12 to 22 of civil law and division of immovable property such as natural, consequential, and so on, telephone advantage isn’t considered of immovable properties. But we must pay attention if the meaning of the advantage in the question is telephone advantage before changing it to telephone line, it can’t be transferred and bought or sold according to the regulations of telecommunication administrations.

The commission’s consultative opinion:

The majority’s opinion:

Paying attention to the definitions of the moveable and immovable properties mentioned in articles 12 to 22 of civil law, and based on the principle of being moveable of the objects and properties, telephone advantage is considered as moveable properties.

The minority’s opinion:

Paying attention that there are limitations in transferring of telephone advantage from one city to another city, it can’t be considered as moveable property. According to the definition of immovable property mentioned in article 12 of civil law, it isn’t considered as immovable property too. It must be said that it is a financial right like the right of alimony and trade and so on, which are considered as moveable properties from the aspect of trials, competency.

230.Paying attention to articles 91, 171, and 176 of labor act and article 616of Islamic punishment law, in the case that a worker dies as a result of an accident during the work, how is the offender’s Islamic punishment determined?

Mr. Azadbakht, Karaj justice administrations:

According to the majority’s opinion, firstly, the labor act is special and prior and has been approved by the Expediency Discretion Council of the Regime. For this reason, it rules over the regulations of Islamic punishment law. Secondly, the recent part of the articles 95and 171 of labor act confirm the applying of anticipated punishments in labor act. Therefore, the punishment of the offender in the accident resulted from work such as death, etc. is according to labor act.

According to minority’s opinion, since labor act has priority over the Islamic punishment law (from the aspect of approval date), and regarding the phrase “in addition to the punishment inserted in this chapter” mentioned in the recent part of the article 171, the labor act has specified some punishment in addition to the punishment determined in the labor act. Therefore, both anticipated punishment in labor act and the punishment mentioned in article 616of Islamic punishment law must be executed.

Mr. Sedghi, Shahid Mahalati judicial complex:

The majority’s opinion:

Article 171 of labor act states: “…. In the case that the infraction from doing legal duties causes an accident which resulted in death or physical disability of the worker, the court is obliged to issue ajudgmentin addition to the punishment inserted in this chapter.” Article 616 of Islamic punishment law states: “In the case of an unpremeditated murder happened by the perpetrator’s carelessness, the person who has caused the accident will be convicted to imprisonment from one to 3 years and to pay blood money in the case of the request of the victim’s guardians, unless it is considered as exact error.” According to these articles the offender is punished. If such an accident happens in workshops, which have 5, or less than 5 workers, since these workshops are exempted from labor act, the offender isn’t punished that in this case it is acted against the philosophy of labor act’s approval. The labor act is going to protect the workers, so such exemption is the breach of legislator’s intention.

Mr. Farahani, Ghods judicial complex:

There were 3 opinions about this question. Some believed that articles 191, 171, and 176 of labor act related to the employer’s infractions are of ruling regulations which have been determined by labor act to protect order, safety and health of the workers and work environment and it has no relation with other offenses which may happen in the workshop. As it was said in the second part of the article 171, in the case of infraction, the offender is convicted to be punished according to labor act and also other laws. The work environment must be under special rules in addition to the regulations which rules over others, because in such environments people encounter many dangers which threaten their lives. The minority believes that adding two punishments to each other is against legal principles. It is also against the principle of commenting in favor of the accused. Therefore, since the labor act is a special law relative to the Islamic punishment law, the perpetrator must be punished according to the labor act. So the Islamic punishment of the perpetrator is the same as the punishment inserted in article 176 of labor act. Another minority believe since the accused’ action resulted in the worker’s death, it is exactly according to the article 616 of Islamic punishment law.

The commission’s consultative opinion:

The majority’s opinion (1):

According to legal principle, more than one punishment must not be determined for a criminal action. The question includes various titles of offences. So, based on law, the punishment is given to the offense, which is more intense than others. The punishment inserted in article 616 (3 years of imprisonment) is more intense relative to the punishment determined in labor act. So the Islamic punishment of the perpetrator is determined according to the article 616 of Islamic punishment law.

The majority’s opinion (2):

By labor act and determining punishment for an employer who has committed infraction the legislator intends to raise technical and health protection coefficient of work environment and to provide the physical health of the workers who work in workshops and factories. The recent part of article 171 of labor act has specified that the court must issue ajudgmentin addition to the punishments inserted in this chapter if the employer’s infraction from doing the duties causes an accident resulted in the death or physical disability of the employer. Therefore, there is no doubt that both punishments must be executed.

The minority’s opinion:

At the time of approving the labor act in 1990, the Islamic punishment law hasn’t been approved yet. Therefore, the Islamic punishment of the employer is determined based on the labor act and the blood money of the victim is determined according to the blood money law. The article 616 of Islamic punishment law is public and can’t breach the labor act, which is specific and has been approved by the Expediency Discretion Council of the Regime. So just one punishment must be determined and it must be based on labor act.

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Around Table

JUDICIAL AND LEGALL COMMISSION’S REPORT

Answering the questions number 227 to 230

Mr. Sedghi from shahid Mahalati complex:

Mr. Sarvi, Varamin justice administration:

The minority’s opinion:

Mr. Azadbakht, Karaj justice administration:

We can divide the judges’ opinion about article 9, part 2,to two sections: 1.The obtainable interests, which are absolute and certain.

2.The obtainable interests, which aren’t absolute and certain.

Mr. Farahani, Ghods judicial complex:

1.These two words of the above laws haven’t been defined. The legislator, at first, must define the words and then use them in legal articles so that there remain no doubt in the article.

The commission’s consultative opinion

The majority’s opinion:

228. Paying attention to the article 129 of civil procedure law, in the case that the winning party win the tender, is there any need that he pays %10 of the property’s price as bid bound?

Mr. Sedghi, Shahid Mahalati complex of Tehran:

Shahr-e Ray justice administration:

Mr. Sarvi, Varamin justice administration:

Mr. Azad Bakht, Karaj justice administration:

Mr.Farahani, Ghods judicial complex:

Two points are understood from article 129 of civil procedure law: firstly,

The commission’s consultative opinion:

The majority’s opinion:

The minority’s opinion:

229.Is telephone advantage considered as moveable property or not?

Mr. Azadbakht, Karaj justice administration:

Mr. Sedghi, Shahid Mahalatijudicial complex:

Mr. Farahani, Ghods judicial complex:

The commission’s consultative opinion:

The majority’s opinion:

The minority’s opinion:

Mr. Azadbakht, Karaj justice administrations:

Mr. Sedghi, Shahid Mahalati judicial complex:

The majority’s opinion:

Mr. Farahani, Ghods judicial complex:

The commission’s consultative opinion:

The majority’s opinion (1):

The majority’s opinion (2):

The minority’s opinion:

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Justice in Islam

By: Abas-Ali Alizadeh

Fifth edition

Is it permitted to breach a judgment according to another judgment?

The grate jurists have discussed about this subject too much. The discussions as they have been stated in jurisprudence books are related to our subject but we don’t have opportunity to mention all. The main problem is as follows:

1.The breach of judgment according to another judgment in mistakes of fact

2. The breach of judgment according to another judgment in mistakes of law

In these tow subjects, the jurist himself breaches his own judgment or another jurist breaches the judgment (second jurist). In the first case, the permission has been given weather the subject is related to mistakes of fact or law. Because not accepting the breach means not accepting the jurisprudence. The late Ashtiani and Seyyed Abdolkarim Ardebili have accepted this matter. About the second case, some believe that it is not permitted to breach a judgment according to another judgment for the following reasons:

Firstly, the first judge has religiously been qualified. Secondly, his judgment has been according to religious reasons. Regarding these facts, he has searched and observed both parties’ reasons to issue the judgment. Therefore, such a judgment is valid and must be obeyed. So if the ruler issued a judgment according to the religious scales and it hasn’t been accepted, it is the same as the rejection of Imam’s judgment and consequently like the rejection of God’s. Imam Sadegh (peace be upon him) says: “You must accept the jurist’ (Islamic ruler) judgment because I have appointed him as a ruler for you.” Therefore, the reasoning of the first ruler is included in these traditions and consequently, it is obligatory to accept his judgment. The late grate jurist Ashtiany in his book “Ghaza” states: The subject is related to the breach of the second judgment. Since, as soon as the ruler issued his judgment, he has settled the case and therefore no subject does remain for the second ruler’s judgment. He explains the subject on page 55 of his mentioned book that: if the judgment is against the real judgment, breach is not only permitted but also obligatory. In other cases it is not permitted. The late writer of the book “Javaher” has permitted the breach judgment and states that the second judge can breach the judgment whether the issue is according to the absolute proofs such as consensus of opinions and traditions or to the jurisprudence like single news and so on. Perhaps this reasoning has been accepted in present judicial system that the permission of breach has been given to the second judgment.

GUDGEMENT’S CONDITIONS

THE FIRST CONDITION: JUSTICE

The majority of recent jurists believe that justice is one of the judge’s conditions. They say that justice is a state of man’s spirit in which the person gives up easily venial and mortal sins. It doesn’t mean if a person doesn’t commit a sin, it is for the reason that it isn’t in favor of his interest to do it. But also an internal characteristic has been established in him so that he doesn’t do sins and do the obligatory cases. For this reason, some believe that justice is the spirit attribution. Therefore, if a person doesn’t apparently do a sin and this mood isn’t of his spirit attribution, isn’t just. Imam Khomeyni states in “Tahrirolvasile” that it is a spiritual and internal mood that prevent man from doing mortal and venial sins and performances which are non-religious from people’s view points. The late writer of the book “Ma’alem” has the same opinion as Imam Khomeyni except that he believes a judge must not even do something which is against fairness (generosity). The late Yazdi and the grate jurist Isfahani also believe that not committing an action against fairness is one of the conditions of religious leaders for Friday prayers.

The grate jurists have discussed about this subject very much. Briefly speaking, those who believe in the judge’s justice as a condition say that a judge can’t issue a judgment unless doing the obligations and giving up the sins become as an internal and spiritual mood for him. Others who don’t believe in justice as an internal mood say that doing the obligations and giving up the forbidden actions is enough for the establishment of justice.

But the meaning, which the writer of this passage follows, is that the Islamic judge must not only be just but also act in such a way that everybody who enters the court feels the exactness of justice. For this reason we say that the judge must talk with and look at the parties in the same way and don’t give one side priority over other side. The grate holy prophet of Islam says: “The person who accepted the judgment between Muslims, he must consider justice in his kooks, gestures, and position in the court.” The grate leader of Islamic Revolution says about this subject that: “The judge is obliged that to consider equality against the parties, although they are different from their social positions. The judge must consider equality between the parties for the following cases: greetings, sitting on the seat, talking and keeping silence, smiling, and other good manners.” For the establishment of this concept, the holy prophet of Islam says that: “The person who accepts to judge between people, doesn’t have any right to speak loudly with one of the parties in so far as he hasn’t spoken loudly to the other party.”

In fact, when we study these judgments, which have been issued by the holy prophet of Islam and the innocent religious leaders (peace be upon them), we understands how judgment is important in Islam, and its orders are in such a way that the oppressor is punished and the oppressed become hopeful.

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Justice in Islam

By: Abas-Ali Alizadeh

Fifth edition

Is it permitted to breach a judgement according to another judgement?

1.The breach of judgement according to another judgement in mistakes of fact

2. The breach of judgement according to another judgement in mistakes of law

In these tow subjects, the jurist himself breaches his own judgement or another jurist breaches the judgement (second jurist). In the first case, the permission has been given weather the subject is related to mistakes of fact or law. Because not accepting the breach means not accepting the jurisprudence. The late Ashtiani and Seyyed Abdolkarim Ardebili have accepted this matter. About the second case, some believe that it is not permitted to breach a judgement according to another judgement for the following reasons:

Firstly, the first judge has religiously been qualified. Secondly, his judgement has been according to religious reasons. Regarding these facts, he has searched and observed both parties’ reasons to issue the judgement. Therefore, such a judgement is valid and must be obeyed. So if the ruler issued a judgement according to the religious scales and it hasn’t been accepted, it is the same as the rejection of Imam’s judgement and consequently like the rejection of God’s. Imam Sadegh (peace be upon him) says: “You must accept the jurist’ (Islamic ruler) judgement because I have appointed him as a ruler for you.” Therefore, the reasoning of the first ruler is included in these traditions and consequently, it is obligatory to accept his judgement. The late grate jurist Ashtiany in his book “Ghaza” states: The subject is related to the breach of the second judgement. Since, as soon as the ruler issued his judgement, he has settled the case and therefore no subject does remain for the second ruler’s judgement. He explains the subject on page 55 of his mentioned book that: if the judgement is against the real judgement, breach is not only permitted but also obligatory. In other cases it is not permitted. The late writer of the book “Javaher” has permitted the breach judgement and states that the second judge can breach the judgement whether the issue is according to the absolute proofs such as consensus of opinions and traditions or to the jurisprudence like single news and so on. Perhaps this reasoning has been accepted in present judicial system that the permission of breach has been given to the second judgement.

GUDGEMENT’S CONDITIONS

THE FIRST CONDITION: JUSTICE

The grate jurists have discussed about this subject very much. Briefly speaking, those who believe in the judge’s justice as a condition say that a judge can’t issue a judgement unless doing the obligations and giving up the sins become as an internal and spiritual mood for him. Others who don’t believe in justice as an internal mood say that doing the obligations and giving up the forbidden actions is enough for the establishment of justice.

But the meaning, which the writer of this passage follows, is that the Islamic judge must not only be just but also act in such a way that everybody who enters the court feels the exactness of justice. For this reason we say that the judge must talk with and look at the parties in the same way and don’t give one side priority over other side. The grate holy prophet of Islam says: “The person who accepted the judgement between Muslims, he must consider justice in his kooks, gestures, and position in the court.” The grate leader of Islamic Revolution says about this subject that: “The judge is obliged that to consider equality against the parties, although they are different from their social positions. The judge must consider equality between the parties for the following cases: greetings, sitting on the seat, talking and keeping silence, smiling, and other good manners.” For the establishment of this concept, the holy prophet of Islam says that: “The person who accepts to judge between people, doesn’t have any right to speak loudly with one of the parties in so far as he hasn’t spoken loudly to the other party.”

In fact, when we study these judgements, which have been issued by the holy prophet of Islam and the innocent religious leaders (peace be upon them), we understands how judgement is important in Islam, and its orders are in such a way that the oppressor is punished and the oppressed become hopeful.

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Dispute dissolution councils

A glimpse at the draft of dispute dissolution councils regulations (Subject of Art.189 of the 3^rd development law .

Dispute Dissolution Councils (DDC)

 Art.189

Third development law of economics, social and cultural affairs of I.R. of Iran, approved in 2000, by The Islamic assembly council

To reduce clienteles referring to the judicial courts and in order to the peoples’ public participation development, the local disputes dissolution and dissolution of affairs, which have not judicial nature, is transferred to the DDC. The limits of duties and authorities of the council, its composition and the conditions of choosing them are determined by the suggestion of the justice minister and approval of the minister council and the confirmation of the chief of the judiciary power.

The by-law of article 189 of the law of the third economic, social, and cultural development program of I.R. of Iran

Art.1 – Council establishments

1. For the execution of the above mentioned article and other reasons which were mentioned above, the dispute dissolution council which is briefly called “council” here after, is established based on the policy that the judiciary power will gradually execute throughout the provinces of the country.

2. The necessity of council establishment in each place including village, district, city, and so on, also the local competency of that area is determined

by the chief of the judicial area and the governor, with the consultation of the Islamic council.

3. The council establishment is dependent on the agreement of the justice administration’s chief of the province.

4. In the case that the council hasn’t been established in a place, or it hasn’t started its work, or cancelled, the judicial centers undertake the examination of the affairs which are related to the council competency as well.

5. The judiciary power undertakes the training of the council members.

Art. 2- Being honorary of the membership

1. The membership of the council is honorary. But the members receive suitable reward according to the extent of their activities and the statistics of their action, and based on the chief’s distinguishing of the justice administration.

2. The required credit for paying the reward of the first year is determined from the judiciary powers saving, and for the next years, it is anticipated in the justice administration’s budget of the I.R. of Iran.

Art. 3- council office

Each council has a secretariat whose chief is determined and appointed by the council. He is responsible for the regulation and protection the files and affairs which are necessary for the execution of the council’s duties. The judicial area will train the secretariat’s staff.

Art. 4- choosing the members

1. The council is composed of three members. The chief of the council is chosen by the judiciary power. The other member of the council is the chief of the city council. The third member is a trustworthy person of the locality who is chosen by the board composed of the chief of the judicial area, the governor, the commander of the disciplinary force and the Friday-prayer leader. They are chosen for three years. The council is held by the invitation of the chief of the judicial area and the vote majority is valid for the selection.

2. The chief of the judiciary power or a person who is appointed by him issues and announces the judgment of the selected members.

3. In the case of the member’s retiring or death or unjustified absence (more than 4 session) or losing one of the conditions of the membership, another person is chosen to replace him according to the determined conditions in the by-law.

4. After examination, the chief of the justice administration has authority to recognize that the member’s absence is justified or not.

Art.5- membership’s conditions

1-The requirements for membership of the council are as the following:

A- Being citizenship of I.R. of Iran

B- pledge to I.R. of Iran’s constitution

C- Having at least 25 years

D- Having legal competence

E- Having no criminal record

F- Non-addicted

G- Having good fame and necessary justice

H- Having sufficient literate and relatively familiarity with jurisprudence rules and legal regulations

3. Some university graduates are also eligible in this concern such as: law, Islamic jurisprudence and other humane science courses majoring humane sciences or to have a high G.P.A. shall be an advantage.

Article 6

The occupational positions which are membership’s prohibition

The following individuals don’t have any right to become a member of the council in so far as they have occupied the following positions:

A) The judges and administrative staff of justice administration

B) The members of martial and disciplinary forces

C) The governors-general, governors, mayors, deputy governors, the chiefs of administrations and their assistants, the administrators and the members of the executive board of governmental companies

D) The attorneys, formal experts of justice administration, notary- public and notary clerks

Article 7

The limits of competency

1.the council is competent to examine the following cases:

1-1.Having negotiation in order to establish compatibility between the parties, in all-civil affairs and also criminal affairs, which its examination depends on the compliant of a private complainant, and by his forgiveness, the prosecution stops.

1-2.The settlement of the presented claims and complaints regarding the following cases:

A: Civil (legal) affairs

1.All the claims related to the moveable properties, debts, interests, the loss resulted from offense, automatic guarantee, in the case that the object of the claim wouldn’t be more than 5 million Rials

2.The claim of immovable properties’ dispossession, the evacuation of the populated houses and the claims related to the easement rights such as

the rights of passing, executor, disturbance, also the right of prohibition and forcible possession in the case that there wouldn’t be any difference about the subject of the ownership

3.Having obligation to do the duties related to the interactions and contracts to the extent of competency in financial claims

4.Sealing, recording and registering the property

5.Providing and protecting the reasons

6.Financial claims in the case of existing parties’ written agreement without regarding the quorum

B: Criminal affairs

The protection of offense’s effects and prevention from escaping the accused in flagrant offenses by immediate announcing to the closest judicial source or disciplinary officials

Note 1: The examination of the cases which non-judicial sources are competent to examine is done by the same source based on the laws.

Note 2: The examination of the files, which have been presented to the courts before the formation of the council, is done by the same courts, unless both parties request to refer the case to the settlement council.

Article 8

Starting the examination

The council examines all the cases which are the subject of its competency in the case that:

A: The request or complaint would be presented in written or oral form . The oral cases are inserted in the verbal-process.

B: Both parties must be resident or have employment in the council’s area, unless one of the parties agrees to refer the case to the council of another side’s residence or work place.

C: The immovable properties have been situated in the council’s area, even though the parties aren’t residents of the same place.

D: The offence would happen in the council’s area.

Article 9

The reasons of rejecting the membership

The reasons of rejecting the council’s member(s) is the same as the judges’ which have been mentioned in the procedure law, except the cases in which the parties would agree with each other. If the member is rejected, the alternate member will be substituted.

Article 10

The examination’s procedure and the operations’ being free of charge

1.The examination by the council isn’t under the ceremonies of the procedure law. The council invites the parties by a suitable way and listens to their expressions and defenses. Then, it provides a summary of them as a verbal-process and makes the parties to sign it.

2.Presenting the claim or complaint, objection revision request and the execution of the judgment are free of charge in any stage.

Article 11

Doing the investigations

The council can refer the operations such as examination and investigation of the place to one of the members, or obtain the expert’s opinion about the subject.

Article 12

The cooperation duties of administrations and bailiffs of

Justice administration

In cases that doing the duties and performing the council’s decisions require the cooperation of public or governmental sources with the justice administration’s bailiffs. The mentioned sources are obliged to cooperate and in the case of infraction they deserve of criminal, administrative and disciplinary prosecution.

Article 13

Requesting an advisor

1.In the case the council needs consultation about any of the presented files, it can request an advisor from the chief of the judicial area. Regarding the importance of the subject, the chief of the judicial area introduces one of the judges or administrative staff as an advisor (according to the case).

2.The advisor is obliged to announce his written opinion to the council during, at most one week after referring the case to him. The council will take a required decision considering the advisor’s opinion.

Article 14

Trying for compatibility

The council is obliged to try to settle the case in the form of compatibility. In the case of obtaining agreement, the subject of compatibility and its conditions as happened are written in the verbal- process and it is signed by the parties and the council’s members. The content of the agreement letter, which is regulated as mentioned above, is valid and influential for the parties, their legal legatees and deputies. It is executed like the court’s judgments of justice administration if it is required.

Art.15- Determination of the files which have been recognized out of competence

If the council does not recognize itself as a competent authority, then in criminal affairs the file shall be sent to the competent judicial authorities and in civil affairs it shall be notified to the plaintiff for claim should be sent to a competent court it would be recorded in the council after its trial in thereof.

Art.16- Rendering judgments

1. The council makes decision after trial in competence of majority view points and should notify the judgment to parties in written and with all reasoning.

2. The council’s judgment should not be against the rightful laws, otherwise it would be invalid.

Art.17- In providing and writing the councils judgment, it may occur some pen-crossings such as omission or adding a word or mistake in calculations, the council, itself, shall correct the judgment by the request of the beneficiary. The amended judgment shall notify to the parties.

Art.18- Objection to the judgment

1- The council’s judgment can be reviewed in rehearing court provided that the majority view of the council’s members be agree with trying objections and rehearing and request the necessity of rehearing. Thus, in the case of rehearing, the court judgment of rehearing will be a final one.

2- The absent judgments of the council would be claiming within mentioned period of time in the same council.

Art. 19- Judgment execution

The decisive judgments in civil affairs are executed on the request of the beneficiary and by the order of the council’s chief, with the issuance of the execution warning. After announcing the notification of the execution department, if the winning party wouldn’t execute the judgment during 10 days, the file is delivered to the local justice administration for the legal execution. In criminal affairs, in the case that the losing party desired to pay the cash fine, he must deposit the money to an account, which is determined by the council and attaches the receipt to the file. In the case of refusing, the file is delivered to the local court or justice administration for the execution operation in criminal affairs.

Art.20- Observance of arbitration regulations

In the cases which the council acts as parties-arbitrators and tries the quarrels and disputes, the observance related to arbitration mentioned in Arts. 454 to 501 of the proceeding codes of public and revolution in civil affairs shall be necessary.

Art. 21- Preparation and providing equipment and facilities

1.The location of the council establishment should be prepared with the consultant of the chief of judicial district by governor.

2.The governor is responsible to provide and prepare all needed facilities and equipment for such a concern and deliver it to the council. Also the government shall hand over all credits to governors.

Art.22- Justice Administration consideration

The chief of judicial district shall supervise for the best ongoing of the council’s affairs. If there would be any irregularity or blame in the councils duties and also if one or some members are not capable to do their duties or continue their membership in it, the report of those process should be sent to the assigned board by the virtue of Art. 3 of this regulations.

Art.23- General office of the council’s affairs

In order to coordinate the unique policy-making for the council’s affairs, the dispute dissolution councils shall be set up under supervision of judiciary council.

Art.24- Approval date

This by-law has been approved in 24 articles, by suggestion of Justice Administration minister and then has been approved by ministers’ board.

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In the name of Almighty

The recovery of the executing by-law of the article 189 of the third development program

The council of ministers approved the third program of I.R. of Iran’s economic, social, and cultural development, according to the justice administration’s suggestion No. 111/02/781 dated in 2002:

1.The following text is added to part B, by-law’s article 7 of the third program’s article 189.

2.The examination of the offences whose legal punishment is cash fine, at most to 5 million Rials, or the collection of legal punishment of imprisonment and cash fine (after changing the imprisonment to cash fine) becomes 5 million Rials.

3.The examination of the offences whose legal punishment is less than 91 days of imprisonment or the offence is related to guidance and driving.

In the name of Almighty

A glimpse at the by-law which is the subject of article 189 of the third program of the I.R. of Iran’s economic, social and cultural development

Article 189 states that: “ To reduce clienteles referring to the judicial courts and in order to the peoples’ public participation development, the local disputes dissolution and dissolution of affairs, which have not judicial nature, is transferred to the DDC. The limits of duties and authorities of the council, its composition and the conditions of choosing them are determined by the suggestion of the justice minister and approval of the minister council and the confirmation of the chief of the judiciary power.”

The anticipation of centers in order to examine the small conflicts between people and to settle the cases, which have simple judicial nature, is a good and pleasant action. Because, on one hand, in these cases, the duties of people are determined sooner. On the other hand, the judiciary power’s duties will be decreased. But we must pay attention to the rules and regulations. Because, every action, which is out of the frame of the law, may destroy the law’s territory and therefore leave cultural and social bad effects on the society although the main plan has been useful.

First- The examination and evaluation of article 189 of the law

For the correct evaluation of article 189, it is better to refer to the Constitution Law:

A. The first and fourth parts of the Constitution Law’s principle 156 states the following statement about the judiciary power’s duties: “the examination and issuing the judgment about the oppressions, complaints, demanding justice, settling the claims and taking decision about them, doing the required operation related to non-litigious matters, discovery of the offences, the prosecution and punishment of the offenders, executing the Islamic limits and criminal regulations.”

B. The principle 36 of the Constitution Law states: “ Punishment judgment and its execution must be done just by a competent court and based on the law.”

C. The principle 61 has explicitly determined that: “The judiciary power’s actions are done by the justice administration’s courts, which must be held according to Islamic scales. These courts must settle the claims, protect the public rights, extend justice, and execute the divine limits.

D. The principle 159 of the Constitution Law has explicitly introduced the justice administration as the formal source of demanding justice. It determines that the court formation and determination of their competence are dependent on the law’s judgment.

E. It should be paid attention that the principle 170 of the Constitution Law has obliged the courts’ judges to refuse the execution of the governmental by-laws and approved regulations, which are against Islamic rules and regulations, or are out of the execution power’s authority. It has permitted everybody to request the cancellation of these regulations from the High Administrative Court.

As the name of this council “ dispute dissolution council” shows, it is obvious that by the establishment of this council, the legislator has intended to create public boards (out of the government’s administrative structure) to settle the local conflicts and the affairs, which don’t have judicial nature, and civil claims, which are less complicated, before referring to the trials. The following statement of the respectable chief of the judiciary power confirms this subject: “ The execution of article 189 of the third development program and the revival of the arbitration culture is in favor of the judicial system and people.” He emphasized that the subject of arbitration must be inserted in all the important contracts in order to remove the probable conflicts. He also said: “ The judicial system must anticipate an exact supervisory institution in order to control the procedure of the arbitration.”

In a brief look, it seems that:

Firstly, the draft of the by-law, which is the subject of article 189, includes 24 different articles of the mentioned scales.

Secondly, paying attention to the statement of the respectable chief of the judiciary power, that has been mentioned above, this draft can’t reduce the number of files or establish an exact institution to supervise on the arbitration houses.

But, related to the details of the draft, we must pay attention that the legislator has used the word “settlement” which is related to civil affairs. For this reason, this article doesn’t include the instances of penal affairs. The legislator hasn’t deliberately applied the phrases such as “council’s competence”, “issuing judgment” and other items, which are attributed only to the trials. Therefore, the determination of the council’s duties and authorities and the way of choosing the council’s members are dependent on the by-law’s approval.

Second- The examination and analysis of the by-law of article 189

By these presuppositions, we pay attention to the analysis of the titles and articles:

1. It is against the law and unreasonable to leave the determination of the local competence (which has been mentioned in part 2) to individuals. Because, the principle of local competence and its adjusting to the geographical area has been considered in country’s divisions. Referring the subject to the note of article 11 of public and revolution courts’ judgment law in civil affairs is sufficient for reaching to the aim. The chief of the judicial area and the governor are the responsible to distinguish the council’s necessity formation. The way of removing the conflicts has been disregarded in this case. It is better that the phrase “the chief of the Islamic city council” is added to the article.

2. In part 2 of article 1, the phrase “geographical place” about consulting with the chief of the Islamic city or village council can cause some execution problems. For example, the district council can examine all the cases of the dependent villages.

3. In part 3 of article 1, it is suitable that the chief of the judicial area gives the suggestion of the council’s formation and its formation is dependent on the agreement (permission) of the justice administration.

4. Relating to part 5 of article 1, the training of the council’s members must be according to a specific by-law. The training must be done after establishing each council and before starting its work.

5.Relating to part 1 of article 2, it is suggested paying the suitable reward based on financial by-law.

6.The word “council office” is seen in the title of article 3. But in the content of the article, the word “secretariat” has been used. There is a conflict between these two that it has no reasonable justification.

The secretariat has continuos responsibility. So it isn’t correct that the council, which has limited mission, determine and appoint the manager of the secretariat. Also it is better to change the phrase “judiciary area” to “judicial area”.

It is required to specify whether each council must have separate secretariat (in the areas that there are several councils) and if the secretariat general must be established to supervise on their affairs.

7. Relating to the part 1 of article 4, the following cases must be mentioned:

7-1. Appointing the members in such a way, which mentioned in article 4 is against the aim of article 189, which demands the public cooperation. Paying attention to the high position of the respectable chief of the judiciary power, it is not suitable that he issues the judgment of the council’s members. It is enough that the general manager of the council’s affairs or the chiefs of the provinces’ justice administrations undertake this duty.

7-2. The determination of a person by a formal position as it has been anticipated, isn’t “choosing” but “appointing”. It isn’t clear why the same person must be the chief of the council too. The legal principles and rules require that the council’s members choose the chief of the council.

7-3. It isn’t necessary that the judiciary power choose one of the members. It is better that the chief of the province’s justice administration undertakes this duty.

7-4. In the areas where several councils are established, the membership of the chief of the city or village council causes some problems. It is better to anticipate that in each council, one of the main or alternate members and in the case of their absence, one of the Islamic Council Assembly’s members participate in the council.

7-5. Can we add to the duties of the Islamic council’s members based on the by-law? What can we do if they don’t participate in the council.

8. The meaning of the word “justice” isn’t clear in section Z, part 1 of article 5. It is suggested to omit it.

9. It will be better that part B of article 6 changes to armed forces’ fixed and continuos members. In this case, the subject doesn’t include the honorable and unfixed members of armed forces.

The lawyers, formal experts of the justice administration, notary public, legal advisors, and notary clerks are the best classes, which can be the members of the council. Therefore, it is suggested to omit part D of article 6. Of course, it must be mentioned that they must give up their present jobs.

10. Part 1-1 of article 7 is short.

11. It is better to change the phrase “in legal affairs” to “in civil affairs”. If the council is known as a qualified source to examine the civil claims, the object of claim up to 5 million Rials is little paying attention to the existing inflation of the society.

12. The dispossession claims have judicial complication. So, it is suggested to omit them from part 2, section A of article 7, and to add the word “ decree of heirship” to part 4, section A of article 7.

13. In the case that the council has competence, it is better to increase its competence to the non-litigious affairs. Also it can examine the insolvency claims about object of the judgment and its division in the case that the arbitration council has already examined the case.

14. The council’s competence in civil affairs is doubtful. The lack of its competence in penal affairs is absolute. Because, they are related to public order and just the judicial formal officials can interfere in these affairs. If the councils have to interfere in criminal affairs, it is better that:

14-1. In the first part, it is better to change the phrase “protection of

Offense’s effects” to “in order to protect”, because such an authority

requires legal power and force.

14-2. The second part is an obvious affair. Mentioning this part is redundant.

14-3. Since part 3 is related to “quarreling” and consequently to civil affairs, so it is better to mention it under part A of article 7.

14-4. If the compilers of the draft believe that the council is authorized to examine the penal affairs, it was better that they explicitly specified the cases and instances, which are included in the offenses that the council is competent to examine them.

15. In article 8 of the by-law, the way of registering the claims and complaints, the kind and number of the council office, the conditions of the examination and managing the council’s sessions haven’t been specified.

16. In article 9 it isn’t clear what “parties’ satisfaction” means. Have they agreed to refer to the council in the case of appearing any difference? Have they agreed to refer to a specific council in such a case?

17. Paying attention to the content of article 10, its title must change from “the examination’s procedure and the operations’ being free of charge” to “ the examination and the operations’ being free of charge”. Moreover, it hasn’t be specified if the council’s sessions must be open or not, or in which cases they must be open.

18. The regulations inserted in article 12 specially those related to criminal prosecution (which must be according to the law and judgment) will cause trouble and ambiguity.

19. Relating to article 13, it is suggested:

19-1. The presence of advisor in the council’s sessions becomes obligatory.

19-2. The advisor would be a judge or employed /retiring employee.

20. Mentioning the phrase “being decisive” in the agreement letter mentioned in article 14 will cause that the legal belief difference is removed from finality or lack of finality of the agreement.

21. Relating to article 15, it isn’t clear what competence the council has.

22. In article 15, the solution of the conflict related to the value of the claim object, also the probable solution related to the council’s competence must be anticipated.

23. Under part 1 of article 16, the conditions of announcing the judgment must be specified. Because this subject is important in computing the objection extension.

24. Although the anticipation of judgment’s expenses (for the objection) requires law, the objection’s being free of charge isn’t correct and reasonable.

25. Relating to article 18:

25-1 The law must determine the finality and non-finality of the judgment and the by-law can’t undertake it.

25-2 Applying the phrase “ revision request” for the council’s judgments isn’t correct. It is enough to mention the phrase “ capability of objection”.

25-3. Giving competence to the revision courts by means of by-law in order to examine the objections related to the council’s judgments isn’t effective. This affair is against the Constitution Law and the law of public and revolution courts’ formation and judgment procedure in civil affairs.

25-4. The judges of revision courts can refuse from accepting such files according to the principle 170 of the Constitution Law.

25-5. It is not according to any legal principle and scales that the revision request would be according to the agreement of council’s majority.

25-6. The purpose of establishing such councils is to examine the cases fast and easily in the place. But the courts of revision request are situated in the provinces’ centers. So the clients must refer to these places in addition to increasing the number of files in these trails. Moreover, the first courts of justice administration must examine the objection to the arbitrator’s judgment not the revision courts.

25-7. Therefore, paying attention to the above cases. It is better, firstly, all the issues are interpreted as objectionable judgments; secondly, the public courts of the related judicial area are determined as the forum.

26. Relating to article 19:

26-1. It doesn’t seem correct to apply the phrase “execution department”; because it implies to the extension of the council’s administrative organization.

26-2. It is against the law to add to the competence of the judgment execution units of justice administration by means of by-law. The compilers don’t have such an authority.

27. In article 22, the phrase “supervision of the justice administration” isn’t the same as the “exact supervision” which does the respectable chief of the judiciary power mean.

28. It is required to anticipate and establish a center or an organization in order to centralize the administrative affairs and to create coordination between the councils and information centers in cities, provinces, and the whole country. The lack of such centers will cause disorder and unrest raining.

29. It is necessary to mention the holy procedure of swearing for the council’s members who start their work.

30. The time of starting the work hasn’t been anticipated in the by-law.

According to what is mentioned above, the compilers of the draft:

Firstly, have tried to establish an institution, which is similar to court instead of establishing the arbitration institution.

Secondly, have compiled law instead of writing a by-law.

Thirdly, the regulations inserted in articles 4, 5, 18, and 19 of the by-law are against the purpose of the article 189.

Fourthly, the regulations of articles 7, 10, 12, 16, 17, 18, and 19 of the by-law are out of the permission given to article 189, Which is related to the determination of the “council’s duties and authorities and the conditions of choosing its members.”

Therefore, paying attention to the Constitution Law, it seems that the legal scales and the guidance of the respectable chief of the judiciary power must be considered so that the by-law is corrected and completed. Consequently, a firm institution can be established to reduce the reference of people to the justice administration and settle their conflicts immediately.

Thanks to the Lord of the universe

The corrective law of some articles of the Islamic punishment law

The new constitution of trade law’s article 19 approved in 1933

The respectable manager of formal newspaper

The proceeding issue of Supreme Court’s full bench

The commission’s consultative opinion

The commission’s consultative opinion

Is it permitted to breach a judgment according to another judgment?

GUDGEMENT’S CONDITIONS

THE FIRST CONDITION: JUSTICE

Is it permitted to breach a judgement according to another judgement?

GUDGEMENT’S CONDITIONS

THE FIRST CONDITION: JUSTICE

Art. 2- Being honorary of the membership

Art. 3- council office

Each council has a secretariat whose chief is determined and appointed by the council. He is responsible for the regulation and protection the files and affairs which are necessary for the execution of the council’s duties. The judicial area will train the secretariat’s staff.

Art. 4- choosing the members

Art.5- membership’s conditions

Article 6

The occupational positions which are membership’s prohibition

In the name of Almighty

In the name of Almighty

Tehran justice administration committee of process improvement.