Editor in Chief’s Note

The Editor in Chief in this issue has discussed the subject of the judicial general policies which has been approved by Expediency Council in 17 clauses and emphasized decrease of the crimes titles and non-usage of prison’s punishments because this experience has been unsuccessful. This subject has been mentioned that the procurator’s office revival does not mean ignoring the accused’s rights. To defend the society’s rights, it is not necessary that the accused’s right whom is at the prosecution and investigation status, is ignored.

One of the scientists believes that it can be claimed that creating crimes and regulations related to the penal affairs is relevant to not having full recognition of the accused’s character and breach of the environmental and earning conditions of the accused.     

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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 254: If someone infects the other with Aidz intentionally, as this disease is not immediately fatal and it may be treated or may cause death for the patient in future, at present, which article of law does include the act of the accused and what is his/her crime?       

Opinion of majority of votes of members of the commission in the session dated Oct. 24, 2002 (Aban 2, 1381)

If someone infects the other with Aidz intentionally, first of all: this act is a crime, second, the committed person shall be punished in case of necessity. Although there is no specific article in the law in this regard. But by permission of Article (214) of Code of Procedure of Public and Revolution Courts in the penal affairs, the court is entitled to render the judgment by virtue of the valid juratory resources or valid religious injunctions and can not refuse from investigation of the complaint and claims and rendering the judgment for the excuse of silence or breach or abridgment or conflict or ambiguity of codified law. Therefore regarding the subject of question, the judgment shall be rendered by the judge.

Question 255: Is the freedom judgment of the convicted whose insolvency has been proved at the initial stage depends on the judgment’s definiteness?

Opinion of majority of votes of the members of the current commission in the session dated Oct. 24, 2002 (Aban 2, 1381)

Action of insolvency is brought regarding judgment debt against judgment creditor of the main action. So regarding the fact that according to Article (278) of Code of Procedure of Public and Revolution Courts in the penal affairs, the main execution of the judgment is final and in execution of such a judgment, as the prisoner judgment debtor requests for insolvency and the initial judgment is rendered for him/her, regarding Articles 2 and 3 of Law for Manner of Execution of the Financial convictions and concerning the fact that the main execution of judgment is final, the aforesaid shall be imprisoned so that the said judgment is finalized. In case of confirmation of the insolvency judgment by the Appeals Court or definiteness in another way, he/she will be freed from the prison. The confirmatory of the above opinion is judgment of High Disciplinary Court of Judges based on disciplinary condemnation about the prisoner’s freedom before the judgment definiteness of insolvency acceptance (inserted in page 24 of Ghezavat volume 6).        

Question 256: In case of death of the guilty of the accident (insured party), is bringing action of the damaged person against the company (insurer) hearable or not?

Opinion of majority of votes of the members of the current commission in the session dated Dec. 25, 2002 (Day 4, 1381)

According to Article (1) of Tort Compulsory Insurance Act of Owners of Ground Motor Vehicles Against Third Party passed on Dec. 17, 1968 (Azar 26, 1381), the owners of automobiles etc. whom may cause body and financial damage to the third party (parties) and have insured their automobile up to the specific ceiling before the insurer, as soon as accident and offense of the driver (of the insured automobile) and creating responsibility for him, the insurer is responsible for him/her too. The confirmatory of this opinion is legal relation resulted from legal obligation (Articles 6 and 7 of the mentioned law) and recent part of Article (196) of Civil Law (commitment for the third party) so in the question, the damaged person is liable to refer to the deceased heirs or the insurer company.                         

Question 257: To draw an unpaid check under titles inserted in Article (13) of Drawing Check Law, if it is from a closed account, is it subject to Article (10) of the said law or Article (13) of this law regarding sentencing?

Opinion of majority of votes of the members (16 out of 31) of the current commission in the session dated Dec. 25, 2002 (Day 4, 1381)

With respect to the fact that first of all at the time of approval of Article (10) of Check Law, there was no Article (13) in that law, because the inserted cases in the article has not previously been crime, so Article (10) of the said law does not include the crimes subject to Article (13).

Second, refer to the said cases and concepts of the said articles about the question is not enough and does not solve the problem, for this reason, it should be satisfied with the reliable extent by using brief interpretation hypothesis and the fact that check drawing with the inserted titles in Article (13) has not been crime even if it has been drawn from a closed account, as a result in these cases, punishment inserted in Article (13) of Check Law will be applied.  

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A Selection of Latest Legal Approvals

·          Executive Approval of Press Law with 24 months of delay

·          Expediency Council can deviate from the Constitutional Law, if it deems expedient.

·          Amendment of the Executive By-Law of Law for Governmental Punishments Applying Manner regarding goods and foreign currency smuggling

·          Interpretation of Article 2 of Law for Governmental Punishments Applying Manner regarding goods and foreign currency smuggling

·          Monopoly of payment of the delivered fuel price to the airplane to foreign currency is illegal.

·          Medical leave in the pregnancy period does not prevent using delivery leave of absence.

·          Verdict No. 193 of General Board of Administrative Justice Court regarding cancellation of parts A and D of Clause 2 and Clauses 3, 4 and 7 of the approval to the executive means of Law for Third Plan of Economic, Social and Cultural Development in the judicial affairs section subject to Approval No. o23269 T/49454 dated Jan. 23, 2001 (Bahman 3, 1379) of Council of Ministers

·          Non-insertion of divorce in the husband’s duplicate Id. Card, in case he has not married her and just the marriage formula has been pronounced is permissible.

·          Verdicts of judge of Single Article Commission of Jungles and Pastures are just non-final and non-applicable in the limits of Articles 284 and the repeated 284 of previous Criminal Procedure.

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Justice in Islam

13^th Part                 

Hojjatoleslam Valmoslemin Abbasali Alizadeh

In this part of the article, the writer has set forth the quality of answering the defendant and type of the judge decision. If the defendant is silent regarding the question or has an excuse for answer or insists on his/her silence, what decision shall the judge make? 

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Acquaintance with American Judiciary System

11^th Part

Dr. Yadollah Alidoust

In this part of the article, the quality of termination of a case without trial in the American Judiciary System has been set forth and the fact that before the time that a case is tried, what requests can have the parties to the case? For example: Request for clear expression of the complaint, request for dismiss, request for judgment on the pleadings, request for fast and brief judgment.  

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The Cases, Page by Page

The second part of result of inspection of Appeals Courts has engaged in expression of the judicial problems in the cases. In this section, the said problems have been explained under 13 titles:

1.        Investigation of the case problems before substantive investigation

2.        Quality of trial

3.        Printed verdicts

4.        Invitation for explanation

5.        Verdict, writ, judgment

6.        Not-being neutral with good faith and motive

7.        Inquiry for registered status

8.        Injunction and writ of attachment of relief

9.        Counter attachment

10.      Refer of offense recognition to the expert

11.     Mitigation of penalty

12.     Difficulty and fault

13.     Responsibility of owner of ground motor vehicle

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Fraud, a Crime of Commission

In the forth part of subject of fraud, Mr. Sepahvand has discussed the competent judicial authority for investigation of fraud and quality of mitigation of penalty is of subjects, which has been discussed.

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One Vote, One Experience

Lease deed subject of claim has been apparently drawn up as residential place and for evasion of regulations of Article 30 of Lessor and Lessee Law passed in 1977. But in fact the object of lease has been commercial.

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Orders of Judges’ Disciplinary Courts

“Judge is not authorized to render judgment regarding sale of the property belonging to the others right for providing blood money.”

“Although the complainants may insert different titles in their complaints but the judge is entitled to conform the crime to substantive laws and renders the judgment.”

“Inattention to the contents of precedent’s judgment No. 633 dated May 4, 1999 (Ordibehesht 14, 1378) of General Board of Supreme Council and condemnation of the husband in charge of relinquishment of maintenance is disciplinary violation.”

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Study of Computer Crimes and Technology-Related Crimes

It is enough that we pay attention to our surrounding environments. The first subject we observe is a technologic revolution occurring in the society. During the next 5 years, computer, with expanded Internet connections will have special importance as well as the telephone for inquisitors and investigators. Because computer and its Internet connections create crimes named “computer crimes”. But really what is the meaning of computer crime in the daily cases of the penal investigators.

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Prison, a School for the New Offenders

This is report of the two-day educational workshop, which was held under title of “Punishment instead of Prison” for exchange of the opinions of the Iranian and Foreign judges.

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Historical

Whatever is come into your view in this issue and coming ones of the magazine, are the documents which have been prepared for trial of the ones who have involved in murder of many of the statesmen and liberals of a 20-year period and this is several pages of the 20-year history of monarchy of Reza Khan and the beginning of the monarchy of his son which is considerable regarding recognition of a part of Iran history in that time.

This part handles with details of manner of murder of Mr. Jafargholi Sardar Asa’d Bakhtiari.             

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Imam Khomeini Judicial Complex

Imam Khomeini Judicial Complex is located at 15^th Khordad Sq. in the north part of Ark Mosque and its judicial area includes all of District 12 of Municipality of Tehran and a part of District 13 of Municipality of Tehran.

All the employees of the Judicial Complex are 325, 66 of them are judicial and the others are administrative.