A selection of latest legal approvals

The members of tax high council – The board of tax dispute resolution

The law of direct taxes, which have been published in the formal papers in 22.2.87 and 11.5.88 and the law of correctness of the above-mentioned law approved in 27.4.92, have been corrected again in 16.2.01. This law includes 133 articles and will be executed from 21.3.01. We refer to some articles related to the subject of the members of tax high council and the board of tax dispute resolution as follows.

Article 201- whenever the taxpayer rely on the balance sheet, documents and evidences which have premeditatedly been altered or erased in order not to pay the tax, or refuse to show his tax expression, balance sheet and his profit and loss account, he will be deprived from all the legal exemption in mentioned period in addition to paying the fines and bearing the punishment determined in this law.

 Note- The chief of the national tax organization, will present the claim against the perpetrators and prosecute them in judicial centers.

Article 244- The board of dispute resolution is the forum to examine all the cases related to tax conflicts except the cases which have been determined in this law and they are examined by another forum which has been anticipated. Each board is composed of three individuals:

1.One individual as the agent of the national tax organization

2.One judge whether employed or retired; in the case that there isn’t a qualified retired judge in the provinces, the chief of the judiciary power will introduced an employed judge as a member of the board, on the request of the national tax organization.

3.One individual who is chosen by the taxpayer; this person can be the representative of trade room, or ministry of industry and mine, or cooperative room, or formal accountant association, or professional association, or trade unions, or city Islamic council. In the case that the taxpayer wouldn’t introduce the representative within the legal period, the national tax organization will choose one of the above individuals based on the taxpayer’s activity or the tax subject.

Note 1- The sessions of tax dispute resolution boards are formal by the presence of three above-mentioned persons. Their issues are decisive and in force by the majority of votes. But the minority’s opinion must be mentioned in the issue.

Note 2- The national tax organization undertakes the administrating and responsibility of the boards. The members’ wages will be paid from the budget, which has been anticipated in the national tax organization. This budget is suggested by the organization and approved by the economy and finance minister.

Article 252- The tax high council is composed of 25 members who are appointed by the suggestion of the chief of the national tax organization and the approval of economy and finance minister. These members are chosen from the individuals who are aware, informed, and experienced in legal, economic, financial, and accounting. These persons must have MA degree in these subjects.

Note 1- At least, 15 individuals of the tax high council’s members must be chosen from the economy and finance ministry (or its related organization)’s employees who have 6 years of experience in tax affairs.

Note 2- The sessions of the tax high council is formal by the presence of 2/3 of the members. Its decisions will be valid by the vote of at least 1/2+1 of the persons who are present in the meeting.    

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The correction of execution by-law of the law of protection of

gardens and farmlands application

The law of protection of gardens and farmlands application was approved in the year 1996 by the Assembly. By this law, the owners or possessors who change the application of these lands without permission are considered as offender and says that they must be punished. Article 7 of this law has obliged the council of ministers to approve the execution by-law of the law.

The council of ministers approved a by-law in 1996 including 11 articles. Article 7 of this by-law state: Agricultural ministry and the provinces’ agricultural organizations must recognize the infraction cases of the subject of law’s article three. Then, while introducing the offenders to judicial centers, it must issue the temporary stopping order of the operations and actions, which are against the law. Then it must examine the case according to the regulations, and issue the required judgment. In the case that the offender is convicted to pay the fine, the related judicial source is obliged to receive the fine and issue the permission of establishing the building.

The last part of the section 7 has been corrected. According to the mentioned correction, the phrase “issue the permission of establishing the buildings” has been omitted.

 The correction of execution by-law of the law of protection of gardens and farmlands application No. 1380/12/25 -H- 23172 T – 3858 of interior ministry – agricultural ministry

The council of ministers approved the following by-law based on the interior ministry’s suggestion No. 1497/1/6/61 dated in 5.9.2000 and according to article 7 of the law of protection of gardens and farmlands application:

In article 7 of the above-mentioned law which is the subject of approved regulation No. H- 15398 T/ 13105 dated in 21.1.2000, the phrase “issue the permission of establishing the buildings” corrected to “ introduce the offender to the municipalities and offices of governor general according to the place where the offense has happened in order to execute the rules and regulations.

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The board of determining the applicants’ competence for legal consultation and expertness of article 187 of development program law, includes 7 members.

The corrections of article 2 of execution program, of article 187 of the third economical, social, and cultural development of Islamic Republic of Iran, No.1380/11/8 - 1/80/21187

The respectable manager of formal newspaper of Islamic Republic of Iran!

A copy of the correction of article 2 of execution program, and article 187 of the third economical, social, and cultural development of Islamic Republic of Iran which has been approved by the respectable chief if the judiciary power, is sent to the newspaper office in order to be published.

According to the suggestion No. M GH / 943 dated in 5.1.01 of judicial power deputy and the chief of the board of applicants’ competence recognition for establishing the institution of legal and expertness consultation, article 2 of execution by-law of the third economic, social and cultural law’s article 187 is corrected in 28.1.01 as follows.

“In order to examine the competence of the applicants of establishing the institution of legal and expertness consultation, a board which is composed of judicial deputy, training deputy, general manager of the selection and employment of the judiciary power’s chief besides four individuals of university teachers or high rank judges who are chosen by the chief of the judiciary power. The judicial deputy of the judicial power undertakes the management of the board. The board sessions are held by the presence of at least 5 members and the majority’s vote is valid. The board’s decisions are administrative and it can change by the majority’s vote which is agreeable with the chief’s opinion.”

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Obtaining commission in order to divide the subscription fee

doesn’t have any legal permission.

The respectable Guardian Council has announced its opinion about paying commission as the division of subscription fee. The guardian council believes that this cash adds to the membership fee for water and it isn’t against the religion. But the High Administrative Court believes that issuing a circulator letter about this subject by the energy minister’s deputy is out of his legal authorities.

The public Full Bench’s issue:

Paying attention to the fact that compiling the mentioned law in order to oblige people to pay money in return of the governmental facilities and services, is attributed to legislative power or permitted by the legislator, therefore, the circular letter No. 123/5722/501 dated in 10.12.95 of Tehran water and wastewater company based on people’s obligation to pay commission for the division of the related debts and the expenditure of membership fee for water is considered illegal. It is out of the mentioned company’s authorities to regulate governmental regulations. Therefore it is cancelled according to the second half of article 25 of the High Administrative Court’s law.

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Lawyer’s fees must be determined and paid

based on the real price of the object of claim

In article 12 of by-law about the lawyer’s fee and the journey expenditures of the justice administration’s lawyers, it has been mentioned that in the claims that claimant legally presents the claim to the court, the lawyer’s fee must be determined based on the real value of the object of claim.

The correction of article 12 of the by-law about the tariffs of lawyer’s fee and the journey expenditures of the justice administration’s lawyers no. 1380/11/8/- 1/80/21055:

The respectable manager of formal Islamic Republic of Iran newspaper!

The correction of article 12 of by-law about the tariffs of lawyer’s fees and the journey expenditures of the justice administration’s lawyers which has been approved by the respectable chief of the judiciary power, is sent in order to be published in the formal newspaper.

Article 12- In the claims whose object of the claim is legally determined by the claimant, if the price determined by him is more than the real price, the court will determine its real value with referring the case to the expert and then issue the judgment, (in the case that the parties don’t have agreement about the real value of the object.)  

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The by-law of execution law

about the prevention of air pollution isn’t applicable 

The Full Bench’s issue No. 1380/11/7- 462/77:

The judgment mentioned in the note of article 6 of the air pollution prevention law approved in 1995, is useful for providing the execution by-law of the law with cooperation of interior ministry and (municipalities) and disciplinary force of Islamic Republic of Iran, and environment protection organization. Therefore, providing and compiling the mentioned by-law without the participation of the disciplinary force isn’t agreeable with the explicit content of the mentioned by-law. So it is cancelled according to the second half of article 2 of the High Administrative Court’s law.

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High Administrative Court is the forum of examination the complaints of the judges

and other government employees about the spoil of their salaries.

The Full Bench issue No. 1380/11/7- H:

According to the part 3, article 11 of the High Administrative Court’s law, the mentioned Court is competent to examine the complaints of justice administration’s judges and other government employees including civil and military ones (except those who are included in labor act) about the spoil of their salaries. Paying attention to the fact that the subject of the claimants’ complaints in above-mentioned claims are really related to the objection on the deduction of the their monthly salary by the related governmental organization according to the claimants’ complaints to the mentioned organizations, these complaints are examples of employment complaints. Therefore, the verdict No. 864 dated in 24.7.99 issued by the second branch of primary court is considered according to the legal principles and scales. This issue is in force for the Court’s branches and other related sources based on the recent part of corrective article 20 of the High Administrative Court’s law approved in 21.4.99.

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Justice in Islam

Part: 7

By: Abbas-Ali Alizadeh

The independence, freedom and reverence

of the judges and judgment

One of the pillars of every nation and county’s independence is the important base of judicial independence. This basic principle is very important in social life of the nations. No nation enjoys the real independence without paying attention to this subject. The holy Qoran has paid special attention to this subject, so that referring to the Islamic judicial system and avoiding from referring to the other sources has been known as one of the requirements of being Muslim by Qoran. The holy Qoran has obliged people to give up against the government of God and his holy prophet. There are many verses in Qoran that refer to the high meaning of independence.

The subject of independence is so important in Qoran that sometimes the person who offends against it, is considered as a lewd, or oppressor or infidel person. There are many verses and traditions about this subject. There is a tradition from Imam Sadegh (peace be upon him) that says: “there are two kinds of judgments; God’s judgment and the judgment of the ignorant. Therefore, everyone who passes through a wrong way and doesn’t issue judgment according to the God’s orders, he has issued the judgment according to the traditions of the ignorant. Indeed, such a person has become infidel.” After paying attention to the verses and traditions, Man concludes that the judge must only consider God and his saving instructions. He must not have any fear from any position, threat, and allurement. He must issue the judgment according to God’s orders.

By paying attention to the verses and traditions, man respects Islam, Qoran and the holy prophet of Islam that they presented such issues about government and judgment for the human being in the dry and uncivilized land of Arab 1400 tears ago. There are many verses in the holy Qoran in which God orders the judges to judge between people according to right and truth. Muslims must honor to their religion and the judges must always pat attention to the orders that Islam has issued 1400 years ago for all people in the world and for ever. In Islam right and justice belong to all. People’s religion, color, race, richness or poverty, position, weakness and strength are not important. Islam considers human being and it is very important. It addresses the Islamic judge to look at the right and act according to the justice, to fight against the oppressor and punish him and defend the oppressed and administer his justice according to the law. Therefore, God has ordered the judge to act according to the justice.

In the history we read that the grate of Islam have paid attention just to God during their judgment, and didn’t think about anything other than right and justice. It means that the judge must be independent in the judgment. There is a story about Imam Ali that a person complained about him to Omar (the second Islamic governor after the prophet of Islam). Omar addressed Imam Ali by his title and the claimant by his name in the trial. This action made Imam Ali angry, and objected Omar that: “why did you addressed me by my title and the claimant by his name?” It is against the Islamic law and justice and it isn’t qualified that an Islamic judge would have such a behavior.

I ask the pure conscience of men to pay attention to and judge about the Islamic orders and practical ways of Imam Ali, in order to see how the judgment position is high and important in Islam. Islam has always emphasized on the correct execution of the judgment and ordered the judge to be completely impartial and to consider only the execution of justice.

There is story here about a judge in the age of Mahdi Abbasi (one of the governors of Abbasian government). The judge came to the khalifeh (the Islamic governor) and asked him to accept his resignation. Khalifeh asked him why he wanted to resign. He said: “ There was a claim and the parties came to me to settle their conflict. The parties presented some witnesses and reasons to prove their statements. I repeated the sessions in order to hear the reasons and think and investigate about them, and try either to settle the conflict by peace or issue the judgment according to the truth. One of the parties notices that I like fresh dates. Therefore, he provides some dates and sends them to me by giving bribery to the guard. I became angry by this action and excluded the guard immediately, and returned the dish of the dates. The next day that I wanted to judge about them, I understood that I couldn’t be impartial. Suppose that how I was if I accepted the dates. I’m afraid that I involve in the trap of these tricks and lose my virtue ignorantly. Please releases me from the band of such a responsibility and accept my resignation.” For this reason, at the beginning of Islam, the scholars and wise persons refused to undertake such responsibilities. There is another story that says the second khalifeh of Islam appointed a person as the judge of Egypt. When he became aware of the content of khalifeh’s order, he refused explicitly to accept it and said: “ by God, I don’t return to the ignorance gulf from which God has saved me.”

There is another stories again that show the scientists refuse to accept judgment at the beginning of Islam. One of them is said here. “The governor of Iraq asked khalifeh to determine a qualified and competent person as a judge for Basreh. After consulting and thinking, Khalifeh mentioned two scientists and told the governor of Iraq to choose one of them for the mentioned position. The governor showed the written order of khalifeh to both of them. One of them said that undertaking the judgment duty of this area is very important and nobody can undertake such a responsibility except he is confirmed by Hasan Basri and Ebn-e-Sirin, the grate scientists of this area. After hearing this statement, the other candidate took an oath by God and said that the first one is more aware than me about the secrets of judgment. If you know me as a truthful person, you must accept my statement (and appoint him as the judge). If you don’t know me as a truthful person, therefore, it is not permitted to appoint a liar person as a judge. The first candidate said to the second one that he has taken an oath in order to escape from undertaking the judgment responsibility. It is obvious that he is more qualified to accept this responsibility. The governor who was observing the conversation found that the first candidate is more qualified for this position and asked him to accept it. Then the governor appointed him as the judge of Basreh on behalf of khalifeh.

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One vote, One experience

A judgment which was breached

but not returned to the primary court

In the name of the most high God

Verdict No.: 18/41 K

Examination date: 12.6.01

Revision applicant: Tehran justice administration deputy, based on article 235 of public and revolution courts’ law in criminal affairs

The object of revision: verdict No. 78479/3/17 issued by the … branch of Tehran revision court

Forum: branch … of the High Supreme Court

Full bench: Mr. … , the chief and Mr. … , the advisor of the High Supreme Court

The case summary:

Mr. R.S and Mrs. M.Sh are prosecuted by the … public court’s branch … according to the claimant’s complaint because they had issued the post-dated cheque No. 862638- 78/10/18. The sum of the cheque was 55 million Rials. Moreover, the mentioned accuseds are convicted to issue several other dishonored cheques. For the reason that the claimants had forgiven the accused, the court had issued the writ of stopping the prosecution. It must briefly be said that the court issues the following judgment about the dishonored cheque No. 862638. “ About the other conviction of the accused based in issuing a dishonored cheque No. 862638- 78/10/18 for the sum of 55 million Rials, the court believes that the conviction of the accused is obvious according to complaint of Mr. A.A accompanied by the original cheque, bank certificate that the cheque hasn’t been paid, the way of the accuseds’ defenses and statements, and based on the existing rules. So the court convicts each of the accused to pay a cash fine of 90000 Rials in favor of the State, based on article 13 of cheque issuance law and regarding part 5, article 22 of Islamic punishment law. The issued judgment can be revised in Tehran revision courts within 20 days from the date of notification.”

By announcing the verdict, the claimant, Mr. A.A who had received the cheque protested against the issued judgment. Therefore, Tehran revision court invited the parties in order to examine the case. At the day of examination, Mr. A.L, the lawyer of the plaintiffs and the parties became present in the court. The revision court listened to the complaints of the revision applicant and made the plaintiffs understand the accusation. Then, the judge listened to their defenses and obtained the lawyer’s last defense. Then the court announced the end of examination and issued the following judgment by verdict No. 784 dated in 7.6.2000. “ The verdict of object revision No. 93178/11/14 issued by public court’s branch …including the conviction of Mr. R.S and Mrs. M.Sh to pay the cash fine of 9000 Rials, (regarding extenuating circumstances about issuing a post-dated dishonored cheque which the claimant requested to revise it) is altered and erased. According to the revision applicant’s statements and bank certificate that the cheque hasn’t been paid, the bank has announced that the cheque is dishonored. Regarding the dishonored cheques, which the bank has returned them and their dates are before the date of the mentioned cheque, the court believes that the first revision applicant has been aware that his account is closed. Therefore, his statements can’t be accepted. Regarding the above cases, the mentioned plaintiff has committed an offense based on article 10 of the corrective law of the cheque issuance law. Therefore, the court convicted the first plaintiff to bear 2 years of imprisonment (computing the days of previous detention) according to article 22 of public and revolution courts’ formation law and note 4, article 235 of public and revolution courts’ procedure law in criminal affairs, and articles 10 and 13 of the cheque issuance law. About revision request of the claimant against the second plaintiff Mrs. M.Sh, the court believes that she is innocent regarding the signs of the cheques, her defenses, and other evidences, which there are in the file. So the court announces that she is acquitted, and the revision request of the claimant isn’t accepted. This judgment is decisive and finalized.

Executing the article 235

The lawyer of Mr. R.S announced that there has been a mistake in the judgment. So Tehran justice administration deputy demanded to study the file and reminded some notes to the judges of the branch … . But, the mentioned judges recognized that there isn’t any legal difficulty in the issued judgment. Therefore, the file was referred to Mr. S, the advisor of Tehran revision court. He announced that the verdict issued by Tehran revision court’s branch … , is wrong as follows.

A.       The regulations of article 10 of the cheque issuance law is related to the dishonored cheques, which are the subject of article 3 and 7 about issuing cheques from closed accounts. It means that if the dishonored cheque is the subject of articles 3 and 7 of the cheque issuance law, and also it is issued from a closed account according to the bank certificate, the punishment mentioned in article 7 is included in the punishments determined in article 10 from the aspect of punishment level. Therefore, it isn’t related to the punishment determined in article 13 about post-dated, certified, conditional, or blank signed cheques. In other word, if the cheque is related to article 13, it can’t be related to article 10 and vice versa. Therefore, the present file is explicitly included in article 13 not article 10 which includes articles 3 and 7.

B.     The general examination of the cheque law’s regulations includes this fact that at present there are two kinds of cheque: 1. The dishonored cheque which is the subject of the articles 3, 7, and 10; 2. The post-dated, certified, conditional, and blank signed cheques, which are the subjects of articles 13. Therefore. Article 10 of the cheque issuance law, has merely determined the punishment level of issuing the dishonored cheque from closed account in a specific way. So, it isn’t related to the regulations inserted in article 13. The regulations of article 10 aren’t public and they are just related to the issuance cheques from closed account, whereas, the regulations of article 13 is included in the titles inserted in article 13 and not any other thing. For example, issuing the blank signed, conditional, and certified cheques from closed account are not deserved the punishments mentioned in article 10 of the cheque law.

C.     In my opinion, the subject mentioned in this file is very obvious and there isn’t any need to comment it. In spite of this fact, if we had doubt whether article 13 is included in the regulations of article 10 or not, we would comment the regulations in favor of the accused. Therefore, the doubt is lost. The other result is that the punishment level mentioned in article 10 don’t include the article 13. Article 13 has been issued after the issuance of article 10, and it is merely executed for the subjects which have been mentioned in article 13.

D.     Paying attention to the fact that the verdict No. 784- 79/3/17 breaches the verdict No. 931- 78/11/4 of the primary court and the court has issued the judgment of imprisonment for the plaintiff, and regarding the notice given to the first court’s judges, it is announce that the judgment of imprisonment is wrong according to the precedent award No. 639- 78/8/11 of High Supreme Court’s Full Bench.

E.    Paying attention to the fact that extenuating circumstances have been regarded in the verdict No. 931- 78/11/14 and the punishment has been determined with extenuating, if the revision court wanted to modify the judgment of the first court, it wasn’t legally permitted to regard the most severe punishment, based on article 250 of criminal procedure law. Therefore, according to the results, reasoning, and documents of the file, the verdict No. 784- 79/3/17 issued by revision court’s branch … is wrong. The case is an instance of part B, article 235 of public and revolution courts’ procedure law in criminal affairs, and the precedent award No. 648- 78/11/26 of the High supreme Court’s Full Bench.

A breach without returning

The file has been sent to the High Supreme Court in order to execute article 235 and perform the issued order. By receiving the main file, the High Supreme Court referred the file to this branch. Mr. R.S presented a draft to the High Supreme Court in 9.6.01. The main cheque was included in the file. The person who has received the cheque has announced his satisfaction at the back of the mentioned cheque. Therefore, Mr. R.S has demanded the court to announce that the file is finished. By examining the file, the following report has been regulated.

The branch’s full bench was held at the mentioned date. After reading the report of Mr. … the counselor, and observing the papers of the file and written opinion of Mr. … the High Supreme Court’s assistant to the public prosecutor general, the court examines the case and issues the following judgment.

The court’s issue

Paying attention to the fact that Mr. R.S the losing party of the verdict No. 748-79/3/17 issued by Tehran revision court’s branch … has requested the court to announce that the file is finished because he has attached the claimant’s satisfaction to the file. Since there isn’t any legal cause for the prosecution of the accused who has issued the cheque, so according to part B, article 265 of public and revolution courts’ procedure law in criminal affairs, it is announce that the mentioned verdict has been breached and it hasn’t returned to the court of first instance. So it is determined that the file must be returned.

Mr. … the chief of High Supreme Court’s branch…

Mr. …the advisor of the High Supreme Court

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Around Table

The report of legal and judicial commission

The answer to the questions No. 235 – 238

235. Paying attention to article 10 of compulsory insurance law approved in 1968, in which the mentioned damages include all physical damages to third party, does the rule (approved by the council of ministers in 5.9. 01 and published in the formal newspaper No. 16487 dated in 6.10. 01 in which the level of damages has been determined up to 40 million Rials) have legal situation?

Mr. Sedghi, Shahid Mahalati judicial complex:

About the civil responsibility of the persons who have land motor vehicles against the third party, the legislator has determined in article 10 of compulsory insurance law approved in 17.12.68, that for the reason of compensation of the third party’s damages, an independence box called “the box of providing the compensation of physical damages” (here after called the box) is established. This box provides the third party with the compensation in the cases that the vehicle isn’t insured, or the insurance policy has been canceled, or the person who has been in the charge of the accident has escaped or hasn’t been recognized, or in the case that the insurance company is declared bankrupt and therefore it can’t pay the compensation or generally in the cases of physical compensation, which haven’t been mentioned in the conditions of insurance contract (except the cases which have been mentioned in article 4). According to the part 6, article 5 of the law of Iran central insurance establishment, the central insurance manages the activities of the above-mentioned box. The legislator has obliged the box to provide the third party with the compensation of all physical damages resulted from accidents with land motor vehicles. According to note 2, article 1 of the mentioned law, all the institutions that are dependent on the government such as all the ministries, banks, and so on are obliged to exclusively make contract about the affairs which are related to this law with Iran joint-stock insurance company. The legislator has given the concession of note2, article 1 to this company and in return the company must provide the third party with the complete compensation of damages which have been mentioned in article 10. But the council of ministers has acted against the explicit content of the law in 2.9.98 and 5.9.01 and determined the compensation level as 15 million and 40 million Rials in the mentioned dates. This action is against the law and it can’t be in force based on the principle 170 0f the Constitution Law.

Mr. Dldar, the justice administration of Firoozkooh:

The majority’s opinion:

It isn’t legal to determine the compensation level of damages. The principle 170 of the Constitution Law has explicitly obliged the judges about the subject. Moreover, a by-law or a circular letter can’t cancel a law.

Mr. Rahmani, the justice administration of Robatkarim:

The majority’s opinion:

Article 10 of the compulsory insurance law states that the Iran joint-stock insurance company must provide a by-law in which the duties of the box are determined. Then the councils of ministers must approve the by-law. Therefore, this action of the council is legal. Determining the compensation level of the damages by the council of ministers is according to its legal duties and its approval must be executed. It must be considered that at the time of approving this law, there hasn’t been the subject of blood money.

Mr. Farahani, Ghods judicial complex:

The majority’s opinion:

Article 10 of the compulsory insurance law is related to the cases in which the person, who is in charge of the accident, isn’t insured or has escaped or hasn’t been recognized. In these cases the box helps such a person to pay the compensation. The mentioned article isn’t related to amount of the money that must be paid or the conditions of paying. Article 11 of the same law has obliged the State and the Assembly to suggest and approve the condition of providing its financial establishment. By this article and other articles of the law, it isn’t understood that Iran insurance company that is in charge of the box must compensate all the damages of the injured person. But it says that the government wants to help the injured persons who are considered as third party in order to create a kind of social security. Even article 3 of this law’s by-law approved in 1998 doesn’t indicate any cause for compensation of all damages. But it states that the kind of damages must be specified. From the beginning of the formation of the box, the level of the helps has been determined according to the financial possibilities of the government or the insurance company by a by-law or rule, which is approved by the council of ministers. Paying attention to the fact that only the High Administrative Court is competent to express its idea about this subject, there isn’t any legal or religious judgment nor any contract that states the box must provide the injured person with the compensation of all damages. Therefore, the rule approved by the government enjoys legal situation.

Mr. Azadbakht, the justice administration of Karaj:

The majority’s opinion:

The majority believe that the mentioned approved rule is legal for the following reasons:

1.                   Article 10 of compulsory insurance law hasn’t specified that the box must provide the third party with the compensation of all physical damages. So the rule approved by the council of ministers is in force.

2.                   The box has been established to help and cooperate with the injured persons who their losses can’t be compensated. The box doesn’t have any obligation in advance.

3.                   Providing the financial sources of the box is limited. Sometimes it happens that the box is empty. In this case, if a loss isn’t compensated, nobody can oblige the box to provide the compensation of the damage whereas it hasn’t been obliged to compensate the special cases.

 The minority’s opinion:

In article 10 of compulsory insurance law approved in 1968, it has been anticipated to compensate all the physical damages. The main idea is to compensate all the entered loss and damages too. It isn’t reasonable to compensate part of the damages. Therefore, all the damages must be compensated even if it is more than the complete blood money. So the rule approved by the council of ministers in 5.9.01 about determining the compensation level equal to the amount of 40 million Rials, isn’t legal.

The majority’s opinion of the commission’s members:

It isn’t understood from article 10 of compulsory insurance law approved in 1968 that the box must compensate all the physical damages resulted from the accidents. This article doesn’t oblige Iran insurance company to compensate all the entered physical damages to the third party. The meaning of the article indicates that a box must be established to compensate the physical damages. In the cases that the vehicle isn’t insured, or the driver has escaped or hasn’t been recognized, or the insurance contract is canceled, and so on, the law has obliged Iran insurance company to provide a by-law for determining the duties and competence of the box.  The council of ministers must approve this by-law. One of the duties of the box is to determine the amount of money, which must be paid to the third party as the compensation. So the rule approved in 5.9.01 is according to the law.

The minority’s opinion of the commission’s members:

Article 10 of the compulsory insurance law approved on 1968 has anticipated compensating all the entered physical damages to the third party. On the other hand, part6, article 5 of the law of Iran central insurance establishment has obliged the central insurance to manage the box. Also the legislator has given the concession of note 2, article 1 of the mentioned law to Iran insurance company in return for the compensation of all damages, which are the subject of article 10 of the compulsory insurance law. Therefore, the rule approved by the council of ministers in 5.9.01 is against the explicitness of the law and it isn’t binding according to principle 170 of the Constitution Law.

236. A) Can the court seize the share of inheritance of one of the dead’ legatee before dividing the property in return of the legatee’s debt? B) In the case of seizure of the mentioned share, can the regulations of exceptions be executed about them?

Mr. Deldar, justice administration of Firrozkooh:

The majority’s opinion:

 According to article 868 of civil law, and article 525 of public and revolution courts’ procedure law in civil affairs, the mere seizure of the inheritance share doesn’t have any problem. But in the case of selling the property, the law and the people’s social positions must be considered.

The minority’s opinion:

Regarding the subject and the kind of property, which has been arrested, we must separate them. In the case that there isn’t agreement between the legatees, it is necessary to do legal ceremonies about the division of the inheritance and to issue a judgment Moreover, the legatee may refuse to accept the property. In this case, the subject of inheritance share is put away. On the other hand, before dividing the property, the legatee’s possession doesn’t have any meaning. The seizure of the registered, unregistered, moveable or immovable properties includes specific conditions. Therefore, the seizure of inheritance share before dividing the property seems to be difficult. About the other question, if we suppose that the mere seizure of the property doesn’t have any problem, then it is required to regard the exceptions of the debt specially regarding the content of article 524 of civil procedure law.

Mr. Farahani, Ghods judicial complex:

The majority’s opinion:

According to the general principles, it is permitted to seize the debtor’s property regarding the debt exceptions in order to provide the object of claim. Therefore, the seizure of the legatee’s inheritance before dividing the property doesn’t have any legal or religious prohibition, but obtaining the money from the legatee by this way is doubtful.

The minority’s opinion:

According to non-litigious matters, the inheritance share of each person is considered as his property just when all the debts and rights, which includes the property, are liquidated. By dividing the property the share may become part of other legatee’s inheritance share. Therefore, the seizure of the inheritance share before dividing the property may cause loss to other legatee’s inheritance. For this reason it isn’t permitted to seize the inheritance share before dividing the property.

Mr. Rahmani, the justice administration of Robatkarim:

The majority’s opinion:

In the case that the legatees accept the inheritance shares, paying attention that the property is transferred to the legatees automatically after the legato’s death, the inheritance share of a legatee who is debtor can be arrested for his debt.

Mr. Zareei, Mirrdamad judicial complex:

Since it is possible to seize the joint property, and the inheritance is a kind of joint property too, therefore, it is possible to seize the inheritance share of a legatee. The attachment (seizure) can be removed when it is necessary.

Mr. Rezvanfar, the disciplinary court of judges:

In the case that the legatees accept their inheritance shares, the seizure of each legatee’s inheritance share for his debt doesn’t have any problem. In this stage it isn’t necessary to regard the debt exceptions. But during the judgment execution, the regulations of debt exceptions will be regarded.

The majority’s opinion of the commission’s members:

The seizure of the debtor’s joint property is permitted. Paying attention to the fact that inheritance is considered as a kind of joint property, it is permitted to seize each legatee’s inheritance share for his debt if the legatees accept their shares. In this stage, the regulations of debt exceptions are not executed.

237. Paying attention to article 365 of civil procedure law approved in the year 2000, in the case that the chief of the judicial area recognized that a finalized judgment is included in the regulations of article 326 of the same law, can the mentioned judgment be executed.

Mr. Rahmani, the justice administration of Robatkarim:

 The majority’s opinion:

If we pay attention to the opposite concept of article 365 of public and revolution courts’ procedure law in civil affairs, the issued judgment of revision stage (in the cases which they are included in article 326 of the same law), are not finalized. According to article 1 of civil judgment execution law, just the final awards are enforceable. Therefore, the judgments, which are included in article 326 that are not finalized, can’t e executed. If they are being executed, it is according to legal scales to stop its execution. So the chief of the judicial area can stop the execution of the judgment

Mr. Deldar, the justice administration of Firoozkooh:

The first opinion:

According to the recent part of article 328 of public and revolution courts’ procedure law in civil affairs, the judgment, which has been issued wrongly, whether it is finalized or not, can’t be executed. It must be examined according to the regulations. Then, if it is confirmed, it must be referred to the execution unit.

The second opinion:

The execution of final award is the main affair of the law. In the case that it is announce that the final award is wrong, the legal ceremonies must be done to stop the execution of the judgment Stopping the execution of the judgment is dependent on the decision of the court, which has issued it.    

Mr. Zareei, Mirdamad judicial complex:

The majority’s opinion:

It seems that after accepting the mistake, the judgment can’t be executed. But the mere announcement of making a mistake can’t cause the final award to stop.

Mr. Farahani, Ghods judicial complex:

The majority’s opinion:

Paying attention to the fact that no judgment is executed unless it becomes final, and regarding the definition of final and non-final judgments mentioned in article 330 of civil procedure law approved in the year 2000, the judgments which can be revised, aren’t considered as final awards. Although, article 365 states that the judgments of revision sources are considered as final awards, if one of the executors of note 1, article 326 of the mentioned law recognizes that a judgment is included in the regulations of the mentioned article, i.e. the judgment can be revised, in this case such a judgment isn’t considered as final award. So it can’t be executed according to article 365.

The minority opinion:

Being final of the judgments is important. So a final judgment can be executed unless a legal source issues a writ to stop or delay its execution. In this case, if the chief of the judicial area observes a mistake in the judgment and gives a notice to the judge, who has issued it, and the mentioned judge accepts it, the mentioned chief must issue a judgment to delay or stop the execution of the first judgment, if not the judgment can be executed. It must be mentioned that whatever has been stated in the precedent award No. 76/11/21-622, is related to article 18. The repetition of the subject in part B, article 326 which has been issued after issuing the above-mentioned precedent award, indicates that the legislator emphasizes on giving a warning to the judge. Therefore, if the chief of the judicial area announces merely that the judgment is wrong, it isn’t enough to indicate that the judgment isn’t final or can’t be executed or can be revised.     

The High Supreme Court’s full bench’s precedent award No. 1376/11/21-622:

The regulations of article 18 of public and revolution courts’ formation law approved in 1994 guarantees the trials’ judgment to be correct and without mistake. It is understood from part 2, article 18 of the mentioned law that the mistake must be so obvious that giving a notice to the judge who has issued the judgment causes him to become aware. But it can’t be understood from the mentioned article that it is necessary t give a notice to the judge. It is enough that another judge, who can legally supervise the correct execution of the rules, understands that the judgment is wrong and announces the subject in written form and by document. In this case the revision forum is basically obliged to execute the regulations of article 18. Consequently, the judgment No. 76/2/9-129 issued by Tehran revision court’s 20^th branch is according to legal scales. This judgment is binding for the courts in similar cases, according to the article 3 of the articles attached to the criminal procedure law approved in 1998.

Mr. Rafiee, Sadeghiyeh judicial complex:

Paying attention to the consolatory opinion No.7/825-81/1/31 issued by the judiciary power’s general administration of compiling laws, the mere announcement of making a mistake isn’t considered as a permit to stop or prevent from the execution of the final judgment

The cases of objection to the judgment whether by ordinary or extraordinary ways, that cause the execution of the judgment to be stopped, have been specified in the law. These cases don’t include the announcement of making a mistake in the judgment

The announcement of making a mistake, which is the subject of article 326:   

The public and revolution court’s procedure in civil affairs approved in the year 2000, includes neither demanding revision nor appealing conclusion. The legislator has talked about the judgment, which may have a mistake. But it hasn’t been specified that demanding revision causes the judgment not to be executed. Therefore, demanding the execution of article 326 and the announcement of making a mistake in the judgment by the related authorities, aren’t considered as the permission for stopping the execution of the judgment   

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Mr. Rezvanfar, the judges’ disciplinary prosecutor office:

About the execution of penal judgments, as soon as the chief of the judicial area recognized that there is a mistake in the judgment, the execution of the judgment must be stopped, and legal operations must be done. But about the execution of civil judgments, there is no prohibition for the continuation of the executive operations even if the mentioned authorities announce that there is a mistake in the judgment.

The majority’s opinion of the commission’s members:

The mere announcement of the subject that there is a mistake in the court’s final award by the chief of the judicial area doesn’t cause the execution of the judgment to be stopped. In this case, the mentioned authorities in note 1, article 326 of public and revolution courts’ procedure law in civil affairs must give a notice to the judge, who has issued the judgment to make him aware according to part B of the mentioned law. If the judge accepts this warning, the mentioned authorities must issue the writ of delaying or stopping the execution of the judgment. Moreover, according to the content of article 328 of the mentioned law, after accepting the reasoning of the notice giver, the revision court can issue a judgment to breach the first one and examine the case too. Therefore, the executing operation will continue in so far as the mentioned writ hasn’t been published. The opinion No. 7/825-81/1/31 issued by the judiciary power’s general administration of compiling laws confirms the same subject too.

The minority’s opinion of the commission’s members:

Paying attention to the opposite concept of article 365 of public and revolution courts’ procedure law in civil affairs about the fact that the judgments issued in revision stages are considered as final awards except the cases mentioned in article 326, therefore, in the case that the chief of the judicial area announces that there is a mistake in the judgment, the mentioned judgment can be revised and can’t be considered as final award based on part B of article 235 of the mentioned law. So it can’t be executed.

238. In the case that the guardian of the endowed property is determined, can the claim of endowment and charity affairs administration be heard?

Mr. Rafiee, Sadeghiyeh judicial complex:

The cases, which the endowment administration can interfere in the endowment affairs (including public and specific endowments), have been mentioned in the law of endowment and charity affairs organization’s formation law approved in 1984, and its related execution by-law. In so far as the determined guardian hasn’t been dismissed or prohibited from interfering in the affairs, the mentioned administration can’t interfere in the endowment affairs such as presenting a claim, according to article 7 of this law. Articles 79 and 81 of civil law strengthen this opinion.

Mr. Sedghi, Shahid Mahalati judicial complex:

The majority’s opinion:

Paying attention to article 1 and 4 of the above-mentioned law and the religious judgment Imam Khomeyni and also the religious judgment of the Guardian Council’s jurists registered in the classified file No. 199/79, and the opinion of the High Administrative Court’s public board (which states that “ the interference of the endowment administration relative to the case in which the endowment has a determined guardian who is trustworthy and can do his religious duty, is against the religion”), since in the above question, the guardian has already been determined, therefore, the endowment administration doesn’t have any responsibility and its claim can’t be heard , unless it is proved by a competent court that the guardian can’t manage the place in such a way, if the endowment administration doesn’t interfere in the affairs, the endowment affairs remains disturbed. 

Mr. Zarei, Mirdamad judicial complex:

The majority’s opinion:

In the case that the guardian doesn’t do his legal and religious duties, the endowment administration can present a claim to the court. Note 2, article 10 of the execution by-law of endowment and charity affairs organization’s authority law obliges the endowment administrations to present the claim and follow it. Therefore, the claim can be heard.

Mr. Adaabi, the justice administration of Shahr-e-rey:

According to the articles 1 and 4 of the endowment and charity affairs organization’s authorities law approved in 1984, and regarding article 79 of civil law, in the case that the endowment has a determined guardian, the endowment administration can’t interfere in the endowment affairs, unless the guardian is dismissed or dies or can’t do his duties.

Mr. Rahmani, the justice administration of Robatkarim:

The majority’s opinion:

In the case that the endowment property has a specific guardian, the endowment administration can present a claim if it is in favor of the endowment.

Mr. Deldar, justice administration of Firoozkooh:

The majority’s opinion:

According to the legal regulations such as articles 1, 3, and 9, the endowment administration ca present a claim.

Mr. Azadbakht, justice administration of Karaj:

The majority’s opinion:

 In the case that the property is joint and in common, all the individuals who are beneficiary, may present a claim to the court. But in other cases, whether public or private rights, there is just one competent legal or natural claimant. Other individuals may have the right of supervision and interference but they can’t present a claim to the court. We know that the endowment property is a kind of independent legal personality whose representative is its guardian or the endowment administration (in the case that the endowment property doesn’t have any specific guardian or he has been dismissed). Of course in some cases such as the cases in which the guardian hasn’t done his duty, the endowment administration can present a claim to protect the right of the endowment subject.

The minority’s opinion:

Paying attention to part 1, article 1 of the endowment and charity affairs organization’s authority law, and regarding the regulations of registration of documents and properties’ law, and considering the necessity of jurist guardian’s supervision about the endowment property specially on public property, we can accept the endowment administration’s claim about the endowment property even if the mentioned property has a determined guardian.

  Mr. Mohammad Hoseiny, Shahid Ghoddoosi judicial complex:

The majority’s opinion:

 Paying attention to article 75 of civil law, the guardian undertakes the management of the endowment property. So the endowment administration can’t interfere in the affairs of the endowment property, because the settler of a pious endowment has determined a special person as a guardian. Therefore nobody can act against the guardian’s opinion. It has been specified in article 79 that the settler of the endowment or the governor can’t dismiss the guardian. Of course in the case that the guardian commits treason, the governor can determine a trustworthy person. The consolatory opinion No. 7/2375-80/10/25 of judiciary power’s administrator of compiling law confirms the above opinion.

     1. As it is stated in article 3 of the endowment and charity affairs organization’s authority law approved in 1984, every endowment property is considered as a legal person and its guardian is the representative of the mentioned endowment. According to article 75 of civil law, the guardian must manage the endowment place.

     2.                   According to article 78 of the civil law, the settler of a pious endowment can determine a person to supervise the guardian. In this case the guardian must act under the supervision of the supervisor. In consultation supervision, before doing the affairs related to the endowment property, the guardian must obtain the supervisor’s agreement and approval. Therefore, if the guardian wants to present a claim to the court about the endowment property whether it is public or specific, at first he must obtain the supervisor’s consultation opinion and then does the required operations.

      3.                   Relating to the public endowments, in the cases that the endowment property doesn’t have any guardian, and in specific endowments, in the cases that the jurist guardian must interfere in the affairs in order to remove the conflict or administer justice, the endowment and charity affairs organization undertakes the administration of the endowment affairs. In the cases that the guardian doesn’t do his duty, the mentioned organization can do the required operation in favor of the endowment property.

Mr. Farahani, Ghods judicial complex:

The majority’s opinion:

Paying attention to articles 1,4,and 9 of endowment law approved in 1975, the endowment and charity affairs organization can’t present a claim to the court in the cases that the endowment property has a guardian, unless the mentioned organization proves that the guardian hasn’t done his duties. In the cases that the guardian does his duties, we have reached to the aim, but if he hasn’t perfectly done them, the endowment property rights must be protected by the mentioned organization.

Mr. Rezvanfar, the disciplinary court of judges:

The private contracts between individuals, the companies’ constitutions, and deeds of endowment are considered as their civil law. In so far as they are valid, there isn’t any need that the civil law interferes in the affairs. About the endowment properties specially those which have determined guardians, it must be acted according to the deed of endowment. If the guardian doesn’t do his duty according to the deed of endowment or commits treason, the endowment administration can’t be silent.

Mr. Kiyazad, Resalat judicial complex:

The majority’s opinion:

In the jurisprudence subjects, the governor or the jurist guardian has authority to do the required operations in order to protect the endowment property’s interests. Although this law is related to the past time (before Islamic revolution), it has been taken in to consideration that the endowment administration supervises on the related affairs. The mentioned organization is the protector of the endowment and public interests.

The minority’s opinion:

In the case that the endowment administration presents a claim. It must prove that the specific guardian hasn’t done his duty. In public endowment, the supervision of endowment administration is a kind of consultation supervision, but it is not so in specific endowment.

Mr. Beygi, Ershad judicial complex:

According to article 1 of the endowment and charity affairs organization’s authority law approved in 1984, this organization is obliged to manage the administration of specific endowment affairs in two cases:

1. The interest of the endowment property requires the mentioned organization to interfere.

2. Removing the related conflicts requires the jurist guardian’s interference.

There is a question here that states if the mentioned organization can dismiss a determined guardian and undertakes the control of the endowment property itself, without referring to the trials and proving the conditions mentioned in law of managing the endowments. Is it enough to rely on the endowment organization’s mere report, which says that there is a conflict between the guardian and the beneficiaries of an endowment, can the mentioned organization dismiss the determined guardian and undertakes the control of the endowment property itself? In other word can the mentioned organization present a claim to the court without proving the above affairs?

In this case the execution by-law’s articles 4 and 5 of the mentioned law approved in 1986, had given such permission to the mentioned organization. These articles state that:

Article 4: according to part 1, article 1 of the endowment and charity affairs organization’s authority law, in order to consider the interests of the beneficiaries of an endowment, the mentioned organization can interfere or supervise related affairs in the following cases:

A)  The separation, confinement of the limits, and objection to the registration of the endowment property, in the case that the endowment property is in possession of the registered request.

B)  Selling the endowment property and the condition of its change regarding article 32 of this by-law and the regulations of civil law.

C)    Renting the endowment property for more than 10 years regarding article 32 of this by-law.

D)    Giving the right of standing property to the lessee in the cases that both building site and standing property are included in the endowment property, paying attention to articles 12 and 32 of this by-law.

Article 5: in specific endowments, in the cases that there is a conflict between the guardian and the beneficiaries of the endowment, or if there is a conflict between the beneficiaries, or in the case that the endowment’s interests are in danger, the subject must be reported to the organization. If the chief of the organization confirms the case, the organization or a board of trustees selected by the organization undertakes the supervision or control of the related affairs of the endowment, regarding the content of endowment deed.

About articles 4 and 5 of the execution by-law of the mentioned law, a person complains and request the High Administrative Court t cancel the above articles. The content of his complaint is as follows:

Firstly, the Islamic jurists believe that in the cases that there is a conflict between beneficiaries of the endowment, the jurist guardian has permission to interfere in the affairs, not in the case that there is a conflict between the beneficiaries and the guardian.

Secondly, in the cases that the conflict is so dangerous that it causes the beneficiaries kill each other, the jurist guardian has permission to interfere in the affairs.

Thirdly, it must be proved for the governor that there is a conflict between the beneficiaries.

This subject was presented in the High Administrative Court’s Full Bench and the Court cancelled the mentioned articles by the verdict No. 89 dated in 12.12.94. In its opinion, the Court relies on the Guardian Council’s opinion. The mentioned opinion is as follows:

“Articles 4 and 5 of the execution by-law of the above-mentioned law that gives permission to the endowment and charity affairs organization to interfere in the affairs of an endowment whose determined guardian does his duties perfectly is against the religious law.”

The above mentioned verdict sates that: “ it is understood from the Guardian Council’s opinion that in so far as the guardian does his duty and doesn’t commit treason, the organization can’t present a claim to the court beside him. But if the interest of the endowment requires or in the case that the jurist guardian has permission to interfere in the affairs in order to remove the conflict, by the recognition of the organization’s chief, the organization can undertakes the control of the endowment. In this case the organization can present a claim to the court if it is necessary. According to note 1, article 1 of the endowment and charity affairs organization’s authority law, the chief of the organization must be given authority by the jurist guardian in order to control and manage the affairs. In these cases, the chief of the organization is the jurist guardian’s representative and has permission to control and manage the endowment affairs.

The majority’s opinion of the commission’s members:

Articles 1 and 4 of the endowment and charity affairs organization’s authority law approved in 23.12.84, haven’t obliged the organization to control the endowments, which have determined guardians. But the mentioned law has obliged the organization to control the affairs of the public endowments. Therefore, in the case that there is a determined guardian, the organization can’t present a claim related to specific endowment and follow it. The legislator has given permission to the organization to interfere in exceptional cases. The determined guardian is forbidden to interfere in the affairs in the following cases:

1.  When it becomes apparent that the guardian has committed treason.

2.  When the guardian is dismissed for any reason.

3.   When the guardian doesn’t do his duties.

4.   In the case that the guardian dies.

The consolatory opinion No. 7/2375-80/10/25 of the judiciary power’s administration of compiling law confirms the same idea.

The minority’s opinion of the commission’s members:

The main idea in controlling the specific endowments is that the determined guardian must manage and control the endowment’s affairs. But, according to the part 1, article 1 of the endowment and charity affairs organization’s authority law and regarding articles 4 and 5 of execution by-law of this law, the legislator has specified that the mentioned organization is beneficiary and can present a claim about the specific endowment. Therefore, as soon as the guardian doesn’t do his duties or in the case that the endowment interests requires, the endowment administration can interfere in the affairs according to article 9 of the mentioned law. In this case, there isn’t any need to prove the guardian’s treason. Therefore, it isn’t against the law that the mentioned organization does legal operation in order to control the endowment affairs.