Editor in Chief’s Note

Restoration of Judges Respect

Each year, simultaneous with the Judiciary observance days for solution of its problems, many speeches and writings have been presented and during the history of the justice administration, for solution of the problems of the Judiciary, many speeches have been delivered and many efforts have been made but a more tangible result has been expected by the people, why this importance has not been concluded?

The Editor in Chief in this issue has discussed the reason of this affair in 7 clauses.

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Special Criminal Law

Dr. Sepahvand,

Forgery and its types that are material and spiritual forgeries and the forgery proofs are of the subjects of this part of the special criminal law which are set forth by Mr. Sepahvand.

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Orders of Judges’ Disciplinary Courts

The disciplinary offenses investigated in the Judges’ Disciplinary High Court and the relevant judge conviction is about the following cases: 

-          A second hearing of the parties to a cause despite of legal notification of the written notices to the parties to the cause

-          Conviction of the accused, drawer of post-dated check, to the imprisonment and cash fine

-          Court of Appeals investigation to the relief of more than Rls. 20,000,000/-

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One Vote, One Experience

One of the subjects of dispute among the courts is difference between expropriation and eviction.

Sometimes, in the drawn up petitions, people, despite of the fact that their real request is eviction, set forth their claim under title of expropriation or vice versa.

In this part, this subject has been discussed that whether the court can decide contrary to the apparent request of the plaintiff based on its interpretation or not?

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Control of Two or Several Trading Companies

The second part of article of control of two or several trading companies has engaged in the subject of conditions of real merge of trading companies.

The writer suggests the companies legal merge as one of the ways of control of the trading companies. To conclude the merge contract, two of the important elements of the company, that are the Board of Directors and General Meeting, are included, in this way that first of all the Board of Directors of the two trading companies draw up the draft of the merge contract and determine its conditions and agree upon them, then the two companies General Meetings approve the merge suggestion.  

The other point in the merge contracts is that the governments establish some limitations for its conclusion which prevent making monopoly and limitation in the free competition among the trading companies.

In this part, three main conditions for conclusion of the real merge contract that are drawn up of the suggestion of merge by the Board of Directors of the companies, approval of the General Meeting and confirmation of the Supervision Organizations have been discussed.

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Acquaintance with English Judiciary System

1st Part

Dr. Mansour Pournouri

In the previous volumes of the magazine, we studied the American Judiciary System in 14 parts.

From now on, we are going to study the English Judiciary System.

This report has been prepared by a mission of the Iranian judges who traveled to England in the year of 2001.

In this part, the penal prosecution system of the crimes has been studied. The quality of establishment of foundation of prosecution and referring of the penal cases has been discussed in details.

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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 262: Is the business or trade right considered as movable or immovable property?

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

As per Article 20 of Civil Law and Precedent Verdict No. 31 dated of General Board of the Supreme Court, business or trade right is considered as property rights and is applied for rent of the place which is for making the living of tenant of the commercial property and “Commercial Fame” is of the constructive elements of this right that regarding the speech of the legislator in Article 20 of the mentioned law, it is considered of evidences of debts and as the movable properties, although object of rent is of the immovable properties; therefore, regarding the explicitness of the legislator and verdict of the General Board of the Supreme Court, it can be stated that this is the debts right and is considered as the movable property.

Question 263: Does the attorney have the right of participation in the tender and acceptance of the object of tender in the executive operations under the name of his/her principal (without expression of the phrase of “Acceptance of the object of tender” in the power of attorneyship)? 

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

Purchase and sale titles inserted in the First Chapter of the Third Section (sale of the attached property” of the Law for Execution of the Civil Judgments from Article 116-133 explicitly state that: tender is a kind of transaction and satisfaction is one of the main elements of transaction authenticity. In case of not being any purchaser for the property, object of tender, the legislator has permitted judgment creditor to purchase the property and in fact the judgment creditor is considered as one of the parties to contract who has intended for the purchase of the property, object of tender, by intention of the transaction consummation. In the meantime, Article 36 of Civil Procedure, approved in 2000, does not know the mere attorneyship enough in the executive operations for participation in the tender and acceptance of the property, object of tender. All emphasize on this subject that in the attorney’s power of attorney, participation right in the tender and phrase of “acceptance of the object of tender” should be explicitly mentioned.

Question 264: In the verdicts that the absent judgment debtor is convicted of the property return and the judgment creditor introduces some immovable properties of him/her to the Criminal Verdicts Execution Section, is there any need for the formalities of issuance of execution writ and tender? 

Opinion of unanimity of votes of members of the current commission in the session dated Feb. 26, 2003 (Esfand 7, 1381)

As the legislator has recommended rendering of judgment based on the property return, subject of the mentioned crimes in the crimes of fraud and robbery without submission of petition, damage and loss, so in these cases, issuance of execution writ is not necessary; because issuance of execution writ is of the formalities of damage and loss demand and this subject is inferred in Article 286 of Procedural Law of Public and Revolution Courts in the Criminal Affairs and Article 17 of the Executive By-Law, subject of Article 6 of Law for Financial Convictions Execution Manner. But regarding the question, as the introduced property may be less or more concerning judgment debt and on the other hand, preserving the absent judgment debtor rights is necessary and the judge and complainant do not have the evaluation competency of the introduced property, there is need for expertise and formalities of tender.

Question 265: In the claim of the official deed drawn up, is filing the claim against all the previous various possessions on or occupiers of a single standing property who have transferred the immovable or movable property to assignee, necessary or the mere filing the claim against the official owner is enough? 

Opinion of majority of votes of the members of the current commission in the session dated Feb. 26, 2003 (Esfand 7, 1381)

It is as per the Opinion dated Feb. 16, 1989 (Bahman 27, 1367), the honored legal judges II (former in Tehran), Andishehaye Ghazaei (Judicial Thoughts) book, written by Mr. Yousef Nobakht, page 347 and 348. In this book, it has been inserted that “Although the party to contract and commitment regarding the purchaser is only his/her previous possession; but filing claim against the previous possession has this problem that in case of the court investigation and rendering of judgment based on his/her obligation for drawing up the transfer official deed, the rendered judgment can not be present in the Notary Public Office in the position of the judgment execution and official deed can not be transferred. Also compulsion of assignee for filing a suit against all the previous various possession on or occupiers of a sing standing property is a difficult assignment; because maybe the property, object of claim, has been delegated to different people by a contract and the plaintiff, as the last assignee does not know the previous ones and their full particulars and residence and by impossibility of access and filing the suit against all them, his/her right is infringed. In the meantime, it seems that the plaintiff shall file his/her suit merely against the property owner, who is the first seller and the court is entitled to investigate and cannot prevent from the proceedings due to non-observance of passing from hand to hand. Because rule of security against faults in title and necessity of passing hand to hand has no example here and if it is mentioned, the owner has no commitment regarding the last assignee and does not conclude any contract with him/her. So he/she has no liability regarding him/her. In reply, it shall be said that the first owner has obligation for the official transfer against the customer and the purchaser has delegated his/her rights and privileges of that transaction to the third party and the recent person and the last ones are consequently legal substitute of the first purchaser and the mere official transfers remain in force and as the owner is liable against the purchaser’s heirs as the forcible substitute, the assignee is also liable as the legal substitute for the official transfer of that property. It is evident that in case in the process of the trial, some problems are occurred such as denial of the claim or demand for the transaction price, each of the parties can acquire the previous various possessions on or occupiers of a single standing property for proceedings, if necessary.            

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A Selection of Latest Legal Approvals

·          Substantive investigation of dispute in distinction and conformity of   the devotee to the rules and conditions related is within the competency of the Commission of investigation of the devotees objections and is not objectable in the Administrative Justice Court.

·          Extension of the experimental respite of Law for Punishment of Crimes of the Armed Forces for third time “11 years of the law experimental execution”

·          The insurer condition based on the fact that “the cost of treatment of the physical injuries and/or damage resulted from the driving accidents is not subject to the blood money laws and regulations”, is not legal.  

·          There is no time limit for transfer of the deductions of the retirement premium to the State different legal pension fund.

·          Verdict No. 327 of General Board of the Administrative Justice Court regarding cancellation of Approval No. 14/455 dated Mar. 7, 2000 (Esfand 17, 1378) of Administrative Supreme Court regarding amendment of the amended by-law of registration of establishments and non-commercial institutes approved in 1958

·          Non-insertion of Economic Code in the (sale) invoice of the goods is not violation of punishment having maximum and minimum limits.

·          Official employees of the municipalities are of the State employees regarding the employment affairs and applying the regulations of income and allowance tax of them similar to the private sector employees is not legal.

·          Physical and mental torture, prevention of the studies, non-announcement of child abuse of the individuals up to the age of 8 years old is public offense.

·          Personal freedom negation of the individuals by each member of the state authorities and institutions is offense.         

·          Delegation of expediency by the Expediency Council to the Government regarding the small workshops.

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The Cases, Page by Page

A Selection of the Investigation Result of the Appeals Court

4^th Part

The 4^th part of the investigation result of the appeals court is presented in this issue. In this part 18 titles on which different decisions are made in the courts of first instance, have been discussed.  

-          Parallel Ownership

-          Judgments Difference Regarding Financial and Non-Financial Disputes

-          Claim Acceptance from the Legal Departments

-          Acceptance of Representative from each Legal Entity

-          Claim of the private legal entity and claim against private legal entity

-          Breach of the Public Peace

-          Calumny

-          Non-Opinion Expression of the Chief Justice

-          Action for Annulment of the Official Deed

-          Value of Announcements of the Official and Governmental Authorities & Organizations

-          Financing

-          Insufficient Precision in Drawing up Deed of Compromise

-          Arbitration in the Divorce

-          Difficulty & Fault in the Divorce Claims

-          Involuntary Body Damage in Driving

-          Pleading to the Supreme Court

-          Applying Incorrect but Idiomatic Words & Phrases in the Judgments       

-          Using Difficult & Complicated Words & Phrases

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Court of Appeals of Tehran Province

This judicial unit is located in the south corner of Parke Shahr, Behesht Ave., Tehran. This unit investigates revision of the initial judgments of the public and Revolution Courts of Tehran Province including public courts of Tehran, justice administrations of the cities and the courts of the province district.

This important judicial unit is administered by 83 judges.

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Statements of Mr. Arsalan Khala’tbari, Attorney of the Heirs of the Deceased Mr. Sardar As’ad in the Supreme Court

Third part

Prepared by Mrs. Soudabeh Darvish, Employee of Tehran Education Department

This part is about the statements of Mr. Arsalan Khala’tbari, the attorney of the heirs of the deceased Mr. Sardar As’ad in the Supreme Court. These statements, which are separate from the principal’s defenses, have remarkable and clear criticisms of governmental system of that time that are expressed for you, dear readers, in detail.      

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Interest Damage in the Law of Iran and the Goods International Sale Convention, Approved in 1980

Fakhreddin Asghari Aghmashhadi

This article discusses the Interest Damage in the Law of Iran and the Goods International Sale Convention, approved in 1980. This article, after definition and mentioning types of interest damage, studies this issue in the Law of Iran and on the strength of the general principles and rules, such as doctrines of “use your own property in such a manner as not to injure that of another”, “wasting and to be the cause or occasion of” and “the wise opinion”, knows it demandable. Then, it mentions different laws of Iran in this regard and presents an interpretation in conformity to the general principles and rules from Note 2, Article 515 of Code of Procedure of Public and Revolution Courts, which apparently does not know the interest damage demandable. Finally, this article discusses the interest damage in the convention and mentions some of the courts judgments which have been rendered by virtue of the convention and it also referrers to the silence cases of Article 74 of the convention and inserts the suggested opinion of the interpreters for their solution.

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Justice in Islam

15^th Part                 

Hojjatoleslam Valmoslemin Abbasali Alizadeh

In this part of the article, subject of study of doctrine of “Dar’” has been forth. One of the famous doctrines in the criminal affairs is this doctrine that means as soon as in direction of proving one criminal affair, a doubt has been created, it shall be held that action has not been occurred. The writer, in this article, has explained this doctrine that is a speech of Hazrate Mohammad, the Islam Prophet, and mentioned its reason. He mentions that this doctrine has some reasons:

-          Value and rank of human from viewpoint of God

-          Islam is not a severe religion and has been appeared for ease of the people’s affairs