Editor in Chief’s Note

The Editor in Chief in this issue has discussed the subject of necessity of creating legal position of measurement of prosecution for the public prosecutor for purpose of decrease of the criminal cases and making the sound ground for the courts for better investigation of the important penal affairs and decrease of grounds of judgments breach. Of course some persons believe that we can achieve the mentioned goals by amendment of regulations relevant to prosecution suspension.    

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A Selection of Latest Legal Approvals

·          Verdict No. 221 of the General Board of Administrative Justice Court regarding annulling Article 51 of Executive By-Law of General Conscription Service Law approved in the session dated Aug. 4, 1985 and the next addendum and amendment approved by the Cabinet on July 16, 1986  

·          Amendment of By-Law and increase of annual membership right of the attorneys of the Justice Administration

·          Objection time limit to the decisions of land transfer boards regarding provisional culture has been finished on Jan. 16, 1998.

·          The disciplinary condemned persons who shall not be granted leave of absence according to Prisons Organization By-Law can have leave of absence at the discretion of the Province Prosecutor of Court Martial.

·          Amendment of the articles of Executive By-Law of Law for Amendment of Articles 1, 2 and 3 of Law for Amendment and Omission of Articles of Registration Law approved on April 8, 1992 and its next amendments and review of the year of 2002

·          Alimony means all the ordinary needs and demand ability of alimony of the death’s Eddeh (the period during which a woman whose matrimonial bonds have been dissolved due to divorce or death, etc. cannot marry)

·          Fine payment instead of seizure of the motor vehicle is unlawful.

·          Boards of first instance and appeals, regarding investigation objection to collection of claim of Social Security Organization (premium, late payment damages), which have 26 years record, have no legal position.          

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

·          Approval for “prohibition of change of buildings in the plan of Tehran Green Belt” is illegal.

·          Inattention of condition of non-dismissal of the attorney by official deed of power of attorney is contrary to clear text of registration law.

·          Judicial General policies of Expediency Council

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Article

Domestic development of the commercial company encounters special problems, for example: The company may not have enough liquidity or it may not have the necessary authorization for product distribution or in spite of existing both of them, there is no market for the company products sale. Also installation and commissioning equipment in some of the industries have many costs. For example, if a steel manufacturing company intends to double its capacity, it shall invest too much. For removal of these problems, from 19^th century, in some of the countries, the companies’ foreign development has been created and executed. Foreign development of the commercial companies is performed through consolidation of other companies and is possible by three methods: Legal (real) consolidation, Acquiring controlling shares and Acquiring total or the main part of the assets.        

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Historical

In this part, the summary of public prosecutor’s claim in the previous volume regarding the accused persons of murder of Mr. Sardar Asa’d in the names of (Mr.) Ahmadi and (Mr.) Rasekh has been explained.

At last, it has been proved that all these reports are contrary to the reality and have just been prepared for filing and suppression of the truth and spoliation of documents, so Pezeshk Ahmadi and Sarhang Rasekh are prosecutable as per regulations of Article 112 of Public Penal Law due to non-reality confirmation too.

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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 258: In case of death of husband or wife before consummation, is (are) the wife or her heirs entitled to collect all the marriage portion as per the marriage certificate?

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

Regarding the explicitness of Article 1082 of Civil Law, the wife, at the time of marriage, is owner of all the marriage portion as per the marriage certificate, she can take measure for obtaining all the marriage portion. This article that has been compiled according to the famous opinion of the Imamieh jurists is derived from verse 4 of Nesa Surah. This verdict is final and does not depend on before or after matrimonial intercourse. Although most of the contemporary jurists contrary to famous jurists pronounce a judgment in division but it seems that famous opinion of the jurists has more compatibility with the woman’s rights. So in this question, the wife or her heirs is (are) entitled to collect all marriage portion as per the marriage certificate.    

Question 259: Is the meaning of the word “Debt” in Article 522 of Procedural Law of Public and Revolution Courts in the civil affairs is inclusive of damage resulted from the crime or not? If yes, how will claim for damages of delay in payment of the incurred damage be possible?

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

Regarding the nature of damage resulted from delay in payment of the “Debt” which is merely fall of the money value and concerning the fact that damage arising from crime is subject to the Debts General Regulations and there is no specification for “Debt” (except for damage) so that we exclude the “Debt” resulted from damage of Article 522 of Civil Procedure approved in 2000 even so exercising the regulations of Article 522 of the above mentioned about the “Debt” is resulted from the legal damage and its demand manner is under the same condition of Article 522 of the said law. In the meantime, Articles 328 and 331 of the civil law confirm this opinion.

Question 260: Is presentation of certified copy of power of attorney by the attorney enough at the beginning of the case formation? Or shall the original power of attorney be presented and attached to the case?

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

Articles 57 and 59 of Code of Procedure approved in 2000 apply for “the attorney’s position” not presentation of certified copy of power of attorney therefore the explicitness of Article 32 of Attorneyship Law approved in 1936 with the next amendments and addenda in which it is inserted that “The attorneys shall draw and exchange attorney’s fee contract with their principals and submit the second copy of contract as well as power of attorney to the court office…” confirms that the attorney, at the beginning of the case formation, shall present the original power of attorney (attorneyship contract) to the court office because Article 32 of Attorneyship Law is special and Article 59 of Civil Procedure approved in 2000 is public and has no contrary to Article 32. Moreover, regarding the tax charge etc., the attorney’s measure will taken correctly.       

Question 261: How the damaged person of the judge’s mistake or fault can bring an action?

Opinion of majority of votes of the members of the current commission in the session dated Jan. 22, 2003 (Bahman 2, 1381)

On the strength of Principal 171 of the Constitutional Law and Article 58 of Islamic Penal Code and Regulations of the State Statute of the executing laws of the Procurator’s Office and High Disciplinary Court of the Judges, the question is a civil claim and is of the generalities of the Civil Procedure Code and there is no need for service suspension of the judge for investigation of the said but it is necessary that the mistake or fault of the judge is proved I the High Disciplinary Court of the Judge then the damaged person can file the suit against the related the judge in the court of first instance, his work location, by virtue of the above mentioned matters. The court, after investigation and recognition of the fact that the judge’s fault such as deception and fraud in the work or great mistakes of him which are considered as deliberate transgression of duty, causes damage for that person, will issue the necessary judgment against the judge but if some damages are incurred to the individuals due to other measures of the judge such as his negligence or opinion, those measures are not in limits of the fault and are examples of mistake inserted in the Principal 171 of the Constitutional Law and the compensation will be undertaken by the Government (The Executive Power).  

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Rogatory Commission of Justice Administration of Tehran Province

Rogatory Commission is located next to Shahid Beheshti Judicial Complex, Corner of Bimeh Alley, Before Taleghani Cross Roads, Shahid Sepahbod Gharani Ave. Judicial Area of Rogatory Commission of Tehran includes the State limits and is active in the centralized form and as the judicial rogatory commissions are delivered to this authority throughout the country, it has the affairs expansion.         

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Orders of Judges’ Disciplinary Courts

“Non-investigation regarding counterclaim of the accused of the active file and repeated explanation of accusation of breach of trust and …is illegal.”

“Issuing verdict is purely on the strength of opinion of expert of stage of collection of evidence is violation.”

“Making the case accused exit prohibited is contrary to Article 133 of Code of Procedure of Public and Revolution Courts in the criminal affairs and is illegal.”   

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Acquaintance with American Judiciary System

14^th Part

Dr. Yadollah Alidoust 

This is the fourteen part in which we study the American Judiciary System. In this part of the article, the subject of the quality of criminal trials in the courts of America has been discussed. Number of members of the jury, types of court judgments after trial and appeals are of the subjects which have been set forth in this part of the article.

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The Cases, Page by Page

The third part of the investigation report of the Courts of Appeals sets forth the problems related to the following subjects:

Eviction, dispossession, transaction of the pledged assets, different judgments regarding objection of the third parties against the properties’ attachment, different decisions about the claims of illegal possession, claim of attorney’s dismissal, key money, business and occupation right, bank guarantees concerning the students having scholarship and the dispatched ones who do not perform their duties.  

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Fraud a Crime of Commission

5^th Part

Dr. Sepahvand,

In this part of the subject of fraud, the writer discuses participation in the crime of fraud and its effects and rate of liability of the partners in the property subject of the fraud. In this discussion, he rejects joint and several liability of the fraud crime and about liability of the property’s rejection gives opinion about rate of the partners’ intervention.

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One Vote, One Experience

In this verdict, subject of transfer of the other’s property, which finally its punishment is subject to the statute of limitation, has been set forth and as a result; this crime is of the deterrent crimes and subject to statute of limitation.

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Rls. Value of the blood money was determined.

Rls. Value of the blood money in 2003 was increased according to Instruction No. 111/02/5228 dated Mar. 18, 2003 of Ministry of Justice and the amount of the complete blood money has been changed from Rls. 150,000,000/- to Rls. 180,000,000/-. In continuation, comparison table of different items of the blood money with Rls. has been mentioned.

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Cultivation Right is the same key money right in trade.

In this article, subject of cultivation right has been set forth. “In most areas of the Iran, the farmer of the land, enjoys some of the possession rights due to custom and habit. In Azarbayjan, “Joz” is a local idiom means a type of priority right of which in case the farmer cultivates the owner’s land for several years, he can enjoy it. This right is made more due to cultivation or gardening. In some areas around Iran, this right is named “Gharapashtak”. This cultivation right is similar to the key money right in trade. Priority arising from tenancy of long duration is mentioned in different names in the cities and villages of Iran and is subject to the location custom and habit.

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A Report in Sympathy with Money Laundering Bill

A seminar was convened by attendance of the judicial and university thinkers and some of the members of the Islamic Consultative Assembly at Shiraz University for 2 days. In this two-day meeting opened by speech of the Honored Chief of the Judiciary, the professors who had presented some articles explained the crimes with origin of the money laundering in Iran, its relation with the other crimes, necessity of legislation for money laundering and importance of legislation for money laundering control.

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Justice in Islam

14^th Part                 

Hojjatoleslam Valmoslemin Abbasali Alizadeh

In this part of the article, the writer has set forth the subject of quality of treatment of the defendant at the time of answering the action. The other subject mentioned in this article, is subject of judgment by default and rendering of the judgment regarding the absent defendant. By virtue of the jurists’ opinion, he believes rendering of judgment by default is permissible in the People’s Rights but in God’s Right, the judgment by default is not correct. If a case has People’s Rights as well as God’s Rights such as robbery, permit for judgment by default is only regarding the part of People’s Rights.