Editor in Chief’s Note

Mr. Mohammad Reza Zandi

After revolution many rules have been modified and it is completely logic that in order to answer to the dynamic changes of the society, we have to modify them time by time, but since the drafting and writing rules and regulations is a very hard and professional job we have to keep in mind that the permanent changing of the law and rules should not be in a hurry, in a way that affects on the rules stability.

A touchable example is the unsuccessful experience of changing judicial system and revolution and general courts which made us to reestablish prosecutor offices, the other judicial system which is about to be established these days is the Arbitration Councils.

Article 189 of the third program law, regulated in order to reduce the numbers of people who refer to the judicial complexes and for making more civil partnership and also settlement of local disputes which has judicial nature by the Settlement Councils.

One of the most important benefits of these semi judicial councils is that, judges will study the cases with more time and will issue the orders more precisely.

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 A Selection of Latest Legal Approvals

-Membership of the vice presidents in the commissions, which are organized to regulate law enforcement by-laws, is against the law.

-In accounting tolls for extension of building license, the paid amounts must be

Accounted at the time of issuing.

-Presenting the non-employment evidence for issuing trainee license is not necessary.

-          Those immovable properties which without having no license, has been declared in the past as endowment properties, this declaration has no validity and credibility.

-          Bank’s high council has no right to determine administrative punishment in the banks.

-           Full bench of high administrative court, made and declared void the high administrative court by-law, article 7, sub article 7.

-          Those people who are called Koran memorizes and have already B.A. in Koranic science, only with submitting one project could reached to the M.A. degree.

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Orders of judges’ disciplinary courts

It is disciplinary breach to issue the award to stay of order execution, before the Supreme Court accepts the request of retrial.

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The lessor and lessee relation act of the year 1376

Dr. Parviz Novin

The law of lessee and lessor has been regulated in year 1376 within 13 articles, here we review the articles:

Article 1)

One)The act of 76/7/2 will be ruling for all lease contracts, which are concluded after the binding time of said act.

Two)           This act is ruling for all the lease places concerning all places like commercial, residential, and …./

Three)        The code of 1376 is not an imperative law.

Four)           The written lease contracts (  official or ordinary) is ruling by the year 1376 Code

Five)The by-law of the year 1376 Code, article2, Note 2,  has breached

it’s article 1, and this was not been objected by the full bench of high administrative court and they declared it as null & void.

Article 2) Because of procedural rules,

 a) Two persons should sign the lease contract as witness which

b) A denial, forge or hesitation made on the lease contracts, which are signed by two witnesses, is admissible.

c) It is not clear in case of not performing that, what is its legal sanction.

Article 3)

One)At the expiration of Lease period (commercial or residential) eviction is possible by one week.

Two)           This code is ruling only for eviction in case of expiration of lease period, and for other cases, we have to refer to related rules in Civil Code of Iran.

Three)        It is not necessary to petition for eviction and submitting an application would be enough.

Article 4)

One)If lessee has paid lessor an amount of money as deposit, object of lease eviction, shall be contingent upon return of deposit money.

Two)           If lessor claims that the lessee has been caused damages to the object of lease, or have not paid rental, and or the bills of water, electricity, telephone and gas; the said person could refuse to registration, and in proof of his claim, he could presents a petition to the competent court execution department or civil execution of judgement department as the case may be.

Article 5)

If the lessee has any claim in regards to the submitted contract by lessor, the said could present his complaint at the time of executing the eviction order.

Article 6)

According to article 14 by-law of the year 1376 Code, the public notaries are obliged to respect the general rules in regulating the lease contracts and in the inhabitative lease contracts and places which are put to lease to the commercial users stipulate whether lease contracts have been concluded with key money or not.

Article 7) Because of it’s many ambiguities points the article 15 of 1376 Code’s by- law was regulated to clear them up, but article 15 again repeated the same ambiguity. 

Article 8)

Ambiguous points:

One)The phrase “each year” is unperceived.

Two)           The period of the lease contacts should be specified clearly.

Three)        According to article 959 the owner or lessor could put out the lease object to anybody he/she wishes, after expiring time of lease contract.

Four)           During the lease period the lessor could not sign another lease contract with anybody except the lessee and mentioning such a condition in the contact is basically useless.

Article 9)

This article is in conflict with note 2 of article 6 of the year 1376 code.

Article 10)

According to the note of this article the definition of the key money and business right are the same.

Article 11)

By considering article 11 and its by-law article 2 sub article 1, the lease contracts concluded before executing the of this code will not be ruling by the code of year 1376 and if case may be the contracts issue the writs based upon the codes of 1356 or 1362.

Article 12)

Council of ministries on 1378/2/14 has approved the executing by-law of the lessee and lessor relation Code of the year 1376.

Article 13)

According to this article the rules and regulation which are still valid and in force in this regard, are as follows:

1-       Civil code , the property lease contract part

2-       The lessor and lessee relations code of the year 1356

3-       The lessor and lessee relations code of the year 1362

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Historical

In this section we attract your attention to the first part of Mr. Nosrato Doleh Firooz’s trial, he was one of the key ministers in the political grounds during late period of Ghajar and Early of the Pahlavi period.

When he was dreaming to be the king of our great country, he could never believed that he would have passed his life in the prison of Reza Shah.

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One vote One experience

In an action concerning immovable property which its subjects is an arable land and distribution of it, 8 different judgments has been issued as yet from Supreme Court, and other related complexes, but till now it has not reached to an end.

The Deputy of Ministry of Justice of Tehran, according to article 27 of Criminal Law, legally demanded from Country Public Prosecutor to propound the different judgements of Supreme Court in the Full Bench of Supreme Court.

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Hashemi Judicial Complex

This complex is located on west of Tehran, and in Tehran municipality division no 9 &10; this complex exanimate all subjects except divorce and willful murder, it consists of 17 active divisions (12 criminal divisions and 5 legal divisions), civil and criminal enforcement of punishment part, written declaration and guidance center.

In this report the Hashemi complex judges declare their ideas regarding to different issues

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Justice in Islam
Mr. Abasali Alizadeh 

In the last session we presumed four state for the defendant in order to respond in the court. At the first stage defendant confess to what the claimant has claimed initially and confirms what he says, therefore after the claimant’s request , judge will issue th order; in this state if the claimant has been claimed for an article or for a debt the judge will order the defendant, as the case may be to pay or to deliver the article to the claimant.

Should the defendant do not obey the order, the judge will obligate him to do so, if defendant neglects, the judge will award discretionary punishment for him, and if defendant still does not obey the first order the judge will award imprisonment punishment. The judge will deliver the debt or the article to the claimant.( Tahrirol Vasile, Second Volume, Page 375).

Mr. Saheb Javaher, in his book volume 40, page 164, has been said that for the defendant who neglects in payment of his debt, it is permitted just to blame him, and if  the defendant claims for his insolvency, but the claimant does not belive and accept , in this case if he was solvent before his claim of insolvency will not be accepted, and he has to prove his claim. And as long as he proves himself, the claimant’s claim for solvency of the defendant will be accepted.

In the case that his past solvency was not clear and obvious to the judge the great leader of Islamic Republic of Iran’s revolution, Imam Khomeini, has presumed two theories:

1-       Both are claimant and denier

2-       The court will accept the defendant insolvency.

Imam Khomeini believed that in the time of suspicious and doubts the defendant insolvency claim has priority to be accepted.

You can find the ideas of Mr. Zia Araghi while referring to our precious religion book “Koran” and some other ideas of Imam.

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Around Table

The following questions have been discussed in this around table , the commission majority and minority opinions are below mentioned.

Qustion No.242

According to article (1085) of civil code if the wife’s condition to fulfill the duties that she has towards her husband, is receiving her  marriage portion  from her husband, in case of proving insolvency of husband or issuing the orders to pay the marriage portion in installments by the husband, could the wife refuse of fulfilling her duties  till receiving all the marriage portion and if so does she still has the right to receive alimony ?Is she considered as a shrewish wife?

Unanimity of votes

Since the article 1085 of civil code is clearly stipulated, if the marriage portion determined as mature debt, The wife has the right of lien and alimony, also she is not consider as a shrewish wife. According to articles: 1085, 1086 of civil code two conditions are waivers of the wife’s right of lien:

1-       The immature or differed marriage portion

2-       The wife fulfills her duties toward his husband by her own free will.

And insolvency of husband or the court’s order to pay the marriage portion in installments is not mentioned in Law as the waivers of right of lien.

Question No.243

If an account holder gives one piece of his cheques which is written and signed by another person as the price of object of sale to the seller intentionally, in case of not honor the cheque? The account holder will be indictable by which title (fraud, or worthless cheque)?

The majority opinion of commission members ( 81/5/3)

According to the opinion number 7/ 9925 of legal department.

What the account holder did is just one action, which has criminal different titles

(Fraud and issuing worthless cheque) and according to article 26 of Islamic Penal Code, should be sentenced to the maximum punishment of the fraud crime.

The Minority opinion of commissions members( 81/5/3)

By considering article 3 of issuing cheque code, which mentioned the points analogy that cause not honoring the cheque amount by bank, and this fact that narrow interpretation of criminal rules is on the benefit of the accused person; the account holder action is considered as performing some intentionally acts which result in not honoring the cheque and his punishment should be sentenced according to article 3 and 7 of cheque code.

Question No.244

If a person prosecuted because of performing a crime, and has been introduced to prison with write of attachment and again after a period of time the court issues a sentence for him because of doing another crime,  in case of his acquaintance by the court in his pervious case is it legal to account his pervious detention for his latest conviction?

Unanimity of Votes:

With considering the note of article 18 of Islamic Penal Code and the note of article 259 of Criminal Code and the opinion no. 7/8481 of Islamic Republic of Iran’s legal department, at the time of issuing sentence, the court is obliged to take to account only the pervious time of detention and not considering the period of detention in other case or conviction.

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Statistical performance of Tehran Province Courts

In this section, the courts of Ministry of Justice have been classified according to their statistical performances.

Acquaintance with American judiciary system

Yadollah Alidoost, Ph. D

Part 7

Following to the previous explanation, in this part we draw your attention to the following:

1-       the procedures in felonies court:

One)Interrogation by Police

Two)           Preparing the accused person for the preliminary presence in the court

Three)        Release before hearing