Editor in Chief’s
Note
The Editor in Chief
in this issue has discussed the subject of necessity of preparation
for procurator’s office revival and emphasized that though return of
the public prosecutor to the judicial system is a suitable and
worthy measure, but it does not solve the main problems of the
justice administration.
It is necessary that
we take action regarding decrease of judicial incumbency and prevent
from the cases entry as far as possible. To achieve this goal, one
of the legal capacities, is development of Dispute Settlement
Councils. In continuation, effects of disputes termination by
compromise have been explained.
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A Selection of Latest Legal Approvals
·
Cancellation of two approvals of Cultural
Revolution Supreme Council due to being illegal and contrary to
religious law
·
Increase of rate of detention instead of cash fine
prescribed in Article one of Law for Financial Convictions Execution
to Rls. 100,000/-
·
Law for Annexation of one Note to Article (1130) of
Civil Law
·
Executive By-Law of Article 187 of Law for
Development Third Plan
·
Executive By-Law of Article (189) of Law for Third
Plan of Economic, Social & Cultural Development of the Islamic
Republic of Iran
·
Amendment of Contractual Employment By-Law
·
Employment only on the basis of contractual and
temporary
·
Obligation to the judicial courts for investigating
the cases out of turn by the Executive is illegal.
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Narmak Judicial Complex
Narmak Judicial Complex is one of
the three complexes of east of Tehran and is located in the
beginning of Shahid Shojaeddin Davari (Vahidieh), Damavand Ave. Its
around police stations are 127, 128 and 147. This complex covers the
limit of municipality of District No. 8 and a part of Municipality
of District No. 13 and has 26 judicial personnel and 98
administrative personnel, 77 of whom are men and 47 are women.
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Special Criminal Law
Dr. Sepahvand,
In the third part of
this article, the writer has dealt with the subject of transfer of
the others property and opposing transaction performance. Of course
transfer in the form of the actual property or benefit of the
opposing transaction with the ordinary or official deed, type of
decision-making regarding the transferor and transferee and their
punishment conditions are discussed.
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Acquaintance with American Judiciary System
10th Part
Dr. Yadollah Alidoust
In this part the difference between
civil and criminal claims in the American Law has been studied.
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One Vote, One Experience
In these judgments, the rate and
quality of compensation of physical damages of the individuals in
the accidents and responsibilities of the insurance companies in
this regard are discussed.
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The Cases, Page by Page
This is title of the report of a new
form of inspection in the Courts of Appeals of Justice
Administration of Tehran Province involving remarkable educational
and scientific points.
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Justice in Islam12th
Part
Hojjatoleslam Valmoslemin Abbasali Alizadeh
In this part of the
article, subject of role of oath in proving the claim has been
studied and this question has been set forth that: “If the judge
understands a perjury after rendering of judgment, what is his
obligation?”
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Analytical Criticism on Landlord and Tenant Relations Law
Dr.
Nasser Katouzian
Although the law
passed on August 17, 1997 about landlord and tenant relations does
not apply the rents before the law approval, its execution regarding
future is difficult due to treatment and contradiction to the legal
principles, this treatment is specially considered in the three
clear fields.
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Rendering of the Insolvency Judgment – Continuation of Detention or
Release of Condemned Party?
Nourollah Aziz Mohammadi
Some of the judges
believe that after issuance of insolvency judgment, the financial
condemned should be immediately freed from prison, on the other
hand, some judges believe that up to rendering of the final judgment
of insolvency, there is no cause for the condemned to free from
prison and up to finalizing the judgment, the insolvent person
should be at prison and their reason is the insolvency judgment
following of the general principles.
The writer agrees
with the first group.
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Orders of Judges’ Disciplinary Courts
“Adjournment of a court session
without a justified excuse is a disciplinary violation.”
“The accused shall not be freed from
prison during the time of rendering of pawn order and pawn
acceptance order.”
“Explanation of fraud accusation and
conviction of the accused without reason in the Court of First
Instance and his/her acquittal in the Court of Appeals is a
disciplinary violation.”
“Disciplinary conviction because of
non-observance of Article 33 of Code of Procedure of the Public and
Revolution Courts in the criminal affairs in rendering of temporary
detention order.”
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Around the Table
The following questions were
discussed in the around table, the commission majority or unanimity
of votes are as follows:
Question 251: Regarding abolition of
Article (729) of Civil Procedure Code (former), if the condemned
party refuses the judgment execution and becomes subject to Note
below Article (47) of Law for Execution of Civil Judgments, explain
obligation of the condemned party concerning the judgment execution.
Opinion of majority of votes of
members (19 out of 36) of the current commission in the session
dated Sept. 26, 2002 (4th Mehr, 1381)
Regarding abolition of Civil
Procedure Code (former) and the next addenda and amendments, Article
(729) or its criterion unity cannot be used for the condemned party
obligation. Because there is no replacement in the new Civil
Procedure Code equal to the said article. As a result Civil
Procedure Code, recently approved, has no rule regarding the
determining for the issue. It is seemed that the only way is
obligation to Article (515) of new Civil Procedure Code, according
to which and in the execution of cause jural rule, after proving in
the court, the damage resulted from delay in the commitment
performance can be demanded. In the meantime, as per Principle 167
of Constitutional Law of the Islamic Republic of Iran, the judge is
entitled that in case of existence of any law to render the judgment
by referring to the Islamic Valid References or Valid judgments.
Question 252: Is the incompatibility
certificate, issued because of the couple agreement
enforceable, at the request of the wife, in case of the husband’s
refusal?
Opinion of majority of votes of the
members of the current commission in the session dated Oct. 24, 2002
(2nd Aban, 1381)
According to Single Article of Law
for Regulations Amendment related to divorce, passed in 1992 of
System Expediency Assembly, the couple intend to divorce, shall
receive incompatibility certificate from the court. It is assumed
that the said certificate has been issued by the couple’s agreement
and the purpose of the Single Article of Law for Determination of
Incompatibility Certificate Validity Term, passed in 1997, is that
no incompatibility certificate is remained enforceable but as
according to Article (1133) of Civil Law, divorce is undertaken by
the men, so by his refusal, the said certificate is null and void
because the husband’s satisfaction which has been the main element
of divorce formula execution in subject at hand is missing.
Therefore
applying the recent Single Article has no
canonical aspect in this regard. It shall be noted that compulsion
of the husband for divorce is in the cases that are predicted in the
law such as Article (1130) of Civil Law that the mentioned
certificate has been issued concerning hardship and incapacity. In
case, compulsion is not possible in this regard, the wife can get
divorce by permit of the court’s judge.
Question 253: In case the defendant
in position of answering the complaint of the complainant regarding
the unpaid check, claims payment of check or the cases inserted in
Article (9) of Check Issuance Law, in the event of the complainant’s
refusal, has the court right of investigation of the claim of the
defendant?
Opinion of unanimity of votes of
members of the current commission in the session dated Oct. 24, 2002
(2nd Aban, 1381)
By complaint of the holder of unpaid
check against its issuer, if the defendant claims for payment of the
check amount, object of the complaint or cases inserted in Article
(9) of Check Issuance Law, precision in the judgment necessitates
that the court investigates about this claim and removal of the
doubts that the accused may pay the check amount to the holder in
cash or arranges in a way for payment of that by agreement of the
complainant or provides for payment process of the said check amount
in the drawee’s bank. In case of proving the accused’s claim, the
court shall issue order suspending prosecution concerning the
criminal aspect.
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