Editor in Chief’s Note

The Cases Filing

For several times, problem of the cases accumulation in the justice administration has been set forth and editor in chief believes that the first and most important step for a successful planning in the Iran Justice Administration is taking methods and policies which can decrease the entry of the cases so that the judges may settle the claims precisely with more peace of mind. Statistics of justice administration of Tehran province, even after the new organizations, confirms the continuation of increase of the entered cases.

Tehran Public & Revolutionary Prosecutor’s Office has had 11% of increase of the entered cases at the second month of its revival in comparison with the previous month.

Establishment of the arbitration council, arbitration and peace and compromise institution and the repeated emphasis of the honored Chief of the Judiciary are in the direction of decrease of judicial incumbency.

Paying attention to the usage of all the available legal capacities for achieving this importance removes the obstacles.

One of the judicial decisions, which exists in the civil procedure of most of the countries, is the cases filing. Public prosecutor does not makes this decision, some time due to legal non-possibility of prosecution (for fall of the public claim and cases of non-responsibility) and some time due to practical non-possibility of prosecution, such as non-possibility of the action relation to the individual(s) or non-identification of the accused.

This is an administrative decision, which is not objectable. This type of decision is making opportunity for the accused who has committed a crime for the first time and also causes that the cases are excluded at the beginning of the entry without being in the stages of prosecution, research and trial.

____________________________________________________________

A Selection of Latest Legal Approvals

·          Condition of insurer regarding the fact that cost of treatment of physical injuries and/or wound resulted from the driving accidents does not depend on laws and regulations of the blood money, is not legal.

·          Physical and mental torture, prevention from the studies, non-announcement of child abuse by the people is public offense up to 8 years.

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

·          Approval of Expediency Council dated Jan. 18, 2003 concerning interpretation of Article 8 of law for manner of exercising governmental punishments regarding goods and foreign currency smuggling approved on May 2, 1995.

·          Law for agreement of extradition between Islamic Republic of Iran and Republic of Uzbekistan

·          Administering of oath before inspection for inspectors of State Inspectorate General Organization approved on Jan. 19, 2003.

·          Authority for obtaining conditions of mayor is merely the city council and minister of the interior does not have investigation duty except for notification issuance.

·          Cancellation of Articles 21 & 22 of Executive By-Law of endowments and charity organization approved in 1986.

·          Verdict No. 372 of General Board of Administrative Justice Court regarding cancellation of Article 5 of Executive By-Law of Law for Urban Land approved by cabinet on June 14, 1992

·          Verdicts Nos. 384 & 385 of General Board of Administrative Justice Court regarding cancellation of Circular Letter No. K/966 dated Apr. 17, 2002 of Treatment Deputy of Ministry of Health & Medical Education

___________________________________________________________

           Orders of Judges’ Disciplinary Courts

-          Verdict No. 12 dated Apr. 19, 2003, drawn up by division … of the judges’ disciplinary court:

Presentation of the medical certificate for the absence periods, which is not confirmed by the forensic medicine, causes disciplinary conviction.

-          Verdict No. 67-68 dated May 3, 2003 of division … of judges’ disciplinary court

Although judgment by default (conviction to the cash penalty subject to Article 13 of Law of Check) has communicated to the judgment debtor in absentia and the aforesaid has accepted, but as, the mentioned verdict has not communicated to the judgment creditor (complainant), it is not final and its execution causes disciplinary conviction.

-          Judgment No. 731 dated Mar. 16, 2003, drawn up by division … of judge’s disciplinary court:

Investigation of the changed relief judgment of claim, out of the legal status, is offense.

_____________________________________________________________________

Study of the Women Merit for Judgment

Ayatollah Mohammad Hadi Marefat

In this article, the women merit for judgment has been studied from viewpoint of the Shiite jurists and some of the other religions and it has been inserted that the condition of masculinity in the judgment, that is the position of being judge, which is one kind of guardianship is in the consensus of the jurists. In the meantime, except for the Consensus, the Book and Tradition and Proof of Credibility have been relied on in the issue.  

_____________________________________________________________________

Control of Two or Several Trading Companies

Last Part

Mr. Beigi

In the last part of this article, the following cases are discussed:

Effects of real consolidation of trading corporations and manner of transfer of rights and commitments and effects of real consolidation on the contractual conditions and its study in the laws of America and England and Iran and comparison of the three said systems and regarding the other cases in relation with the subject, some issues are named and some results are inserted.

_____________________________________________________________________

One Vote, One Experience

To filing a suit of obligation for drawing up the official deed regarding the property under mortgage, in the verdicts:

1.        Court of first instance, 2. Court of Appeals, 3. Announcement of mistake of the court of appeals verdict by head of the judicial complex …, 4. Supreme court, 5. Court of appeals, parallel court division

2.        Verdict No. 256 dated May 20, 2002, drawn up by division … of Court of Appeals, transfer of the property under mortgage is of examples of unauthorized transactions and by withdrawal by mortgagee, this transfer is null and void as per Article 247 of Civil Law.

3.        Announcement of mistake of the court of appeals verdict by head of the judicial complex…

4.        Verdict No. 5/204 – Oct. 27, 2002, drawn up by division … of supreme court: the aspects which were considered as the mistaken cases, are correct and justified.

5.        Verdict No. 1454 – Dec. 18, 2002, drawn up by division … of court of appeals (parallel) has confirmed the judgment of the one who wants revision (judgment under appeal) by withdrawal of revisionism.

_____________________________________________________________________

Khanevadeh 1 (Family 1) Judicial Complex

This complex is located next to Fire Station, South Nirou Crossroads, Shahid Mahallati Highway and was established before procurator’s office revival. Khanevadeh 2 (Family 2) judicial complex investigated all the family claims in the Greater Tehran and now as it has no certain limit, all the submitted petitions are accepted and referred and it has 27 active court divisions.

It has 49 judicial personnel and 235 administrative personnel.

_____________________________________________________________________

Justice in Islam

16^th Part                 

Hojjatoleslam Valmoslemin Abbasali Alizadeh

This part of the article has discussed the subject of “Ghaedeye Lazarar” (use your own property in such a manner as not to injure that of another). All the jurists have invoked this rule. Among these honorable jurists, this certain rule has expanded application. Also in this article, it has been mentioned that the word “losses” has been mentioned in the verses as well as Quran in several cases such as “Tobeh” surah, verse No. 108 etc.

_____________________________________________________________________

The Cases, Page by Page

A Selection of the Investigation Result of the Appeals Court

Last Part

The last part of this report is about the suggestions including: formation of the scientific case for judges, education, promotion of the facilities and equipment and the judgment problems

_____________________________________________________________________

Historical

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

The following text that is the summary of statements of attorney of Mr. Rasekh, the important parts of which are mentioned, is hereby presented. It shall be mentioned that this is the last part of trial of Dr. Ahmad and Mr. Rasekh accused of murder of Mr. Sardar As’ad Bakhtiari.

_____________________________________________________________________

Around the Table

The following questions were discussed in the around table, the commission majority or unanimity of votes are as follows: 

Question 266: Is filing a claim, seizure and cancellation of registration executive operations against the Execution Department, registration of the binding documents or the mere filing a claim against the person, who is applicant for the executive operations, necessary?  

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

Regarding the contrary concept, the last part of Article 4 of law of execution of the civil judgments and explicitness of Article 1 of law for amendment of some of the articles of registration law and law for notary public offices, approved in 1943, “Whoever considers order of execution of the official deeds contrary to the deed concepts or law or has objection of order of execution of the official deed from another aspect, he/she can file a claim as per the prescribed manner in the civil procedure” and as according to Article 6 of the recent mentioned  law, the registration department has not been beneficiary in the set forth issue and the mentioned department is not liable for the damages which are payable, so there is no need for it to be the party to the claim. So filing the claim is enough merely against applicant of the executive operations. Another point is that registration execution issues execution writ only on the basis of the documents (for example the documents about the marriage portion demand), which are presented by the applicant but recognition of authenticity and inaccuracy of the presented documents is by the judicial competent authority.

Question 267: Regarding the fact that there is difference between business or trade right and key money right as per the juratory and legal regulations (Law of Landlord and Tenant, the year 1997), can the one who has been convicted (as tenant) to eviction due to offense and has been deprived from business or trade right, claim for key money right inserted in the lease contract in daily fair price? 

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

Apparently, speech of the legislator in Article 6 of Law for Landlord and Tenant Relations approved on Aug. 17, 1997 (Mordad 26, 1276) which recognizes officially key money right as financial rights and note 2 of the said article, knows the tenant liable for taking the key money daily fair price from the landlord at the time of eviction, has legal proof that has been compiled on the basis of the Imamieh dynamic religious jurisprudence and as the basis for approval of law is Islamic Jurisprudence, business or trade right is announced as illegal but key money right has enacted in daily fair price for protection of tenant instead of business and trade right. Therefore, in case of offense of the tenant, the business or trade right is waived. But the mentioned key money in the contract will be computed in the daily fair price and after payment eviction will be made.

Question 268: In case the authority of first instance mitigates penalty of a convicted person, can the revision authority mitigate his/her penalty again?

Opinion of unanimity of votes of members of the current commission in the session dated Apr. 30, 2003 (Ordibehesht 10, 1382)

Regarding the contrary concept of Article 258 of Procedural Law of Public and Revolution Courts in the penal affairs and necessity of rule of interpretation to the advantage of the accused person, the Appeal court has power of exercising the repeated mitigation of penalty (even concerning the aspect(s) in which the court of first instance mitigates a penalty) and exercising of this right does not need reversal of judgment of court of first instance. Because, according to the mentioned article, the legislator has prohibited exercising aggravation of penalty against the judgment debtor and in the other cases powers of the appeals court is same as powers of the court of first instance. Moreover, the amended law, recently approved, of the public and revolution courts confirms this opinion. In the meantime, a minority of the members of the commission believed that the court of appeals does not have right of exercising mitigation of penalty regarding the aspect(s) of which the penalty (penalties) is (are) mitigated by the court of first instance.

_____________________________________________________________________

Acquaintance with English Judiciary System

2nd Part

Dr. Mansour Pournouri

In this part of the article we read that the English courts are divided into two branches: penal and legal. Then types of penal courts are named which are inclusive of magistrates, crown courts, appeals penal courts and House of Lords. Next competence and manner of investigation in the magistrates and crown court and three groups of judges who are active in this court are mentioned. Also, some issues are inserted regarding activity of the appeals penal court and House of Lords.