Editor in Chief’s Note

Editor in chief in this article under the pretext of approval of an instruction for quality of evaluation by judges’ disciplinary court, sets forth encouragement and its condition and quality. In this article, the judges are brought hope to be expected for remarkable encouragements. Justice Token and Civil Token are examples of encouragement. Up to now, after the Islamic Revolution, Justice Token has been granted to one person and Civil Token has not been granted to anyone. At the end, he mentioned the conditions of encouragement as follows:

-          In encouragement, the individuals’ capacity shall be considered.

-          Encouragement shall not considered as bribe.

-          Encouragement shall be in proper place and time and sufficient.

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A Selection of Latest Legal Approvals

·          Law for Amendment of Article (128) of Procedural Law of Public and Revolution Courts approved on Sept. 19, 1999

·          Rural workshops, holder of 5 workers, are exempted of payment of the employer premium.

·          Demand for certificate of non-offense for transfer of automobile by the Notary Public Offices is not legal.

·          Obligation of veterinary pharmacies for employment of veterinarian as technical in charge of the pharmacy has no legal authorization.

·          Prohibition of change of the 70-hectare gardens and use of them for public are contrary to the Law.

·          Recognition of credibility or non-credibility of the worker and employer contract is by dispute settlement and judicial authorities.  

·          Verdict No. 137 of General Board of Administrative Justice Court about cancellation of the approval dated July 21, 2002 of High Council of State Aviation Organization regarding freeing the rate of aerial transportation of passenger and cargo

·          Precedent judgment No. 154 dated July 13, 2003 of General Board of Administrative Justice Court regarding exemption of the agricultural and animal products of payment of tax up to the end of the year of 2003

·          Investigation of competence of the spouses, grantee of fetus is in competence of the family courts.

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Orders of Judges’ Disciplinary Courts

-          Non-notification of writ of attachment to the accused person is negligence in the performance of duty.

Non-determination of time of investigation after receipt of the result of rogatory commission is offense.

-          Retrogradation of one Judicial rank due to change of the accused statements

-          Who is the deciding court for objection by a third party regarding the final judgment (in appeals court)?  

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Procurator’s Office and Revolution Court of Tehran:

Procurator’s Office and Revolution Court of Tehran is located at First of Moallem Ave., Shariati Ave. and regarding amendment of Law for Establishment of Public and Revolution Courts and Revival of Procurator’s Offices, its scope of competence is as follows:

1.        All the crimes against internal and foreign security and enmity with God or corruption

2.        Insult to the Founder of the Islamic Republic of Iran and the Honored Leader

3.        Conspiracy against the Islamic Republic of Iran or armed revolt and assassination and destruction of institutes for confronting the system

4.        Spying for aliens

5.        All the crimes related to drug traffic

6.        Claims related to Principal 49 of the Constitutional Law

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Justice in Islam

18^th Part                 

Hojjatoleslam Valmoslemin Abbasali Alizadeh

In the 18^th part of this article, the writer sets forth one of the important rules in the law and jurispridence in the name of Rule of Possession. The meaning is possession as owner is a proof of ownership unless the contrary is proved. Is this possession the reason for ownership or not? The first part of explanation of this rule has been published herein.

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Historical

Bankruptcy by Fraud

This is one of the famous stories. A businessman who was debtor took the certificate of insolvency and indigence sealed by the Friday-Prayer Leader fraudulently and submitted that to the creditors but by policy of Amir Nezam, it was become obvious that the businessman was fraudulent and he was obliged to return the creditors’ debt fully. In the meantime, Amir Nezam sent a message to the Friday-Prayer Leader with these contents that “From now on you shall not interfere in the trials and dispute settlements.”

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Intangible Damages and their Compensation Methods in the Iran Law

Dr. Ali Asghar Hatami

Shiraz University

Abstract

Subject of intangible damages and its different examples and method of calculation and compensation of intangible damages and finally judicial courts practice in the position of investigation of the claims about these types of the damages are of the interesting and relatively complicated subjects of law and legal research. Despite of existing the suitable fields in the legal texts for possibility of intangible damages compensation, still majority of courts restrain themselves of the judgment rendering regarding the claims with relief judgment of intangible damages and insist on opinion dated Nov. 26, 1985 of Guardian Council, in case the current legal texts are obvious enough and the means of adjudication of many of the ones who sustained a non-compensating damage in realm of intellectual laws are completely ready. We try to explain the numerous regulations and the available rules in this regard after a short description of the meaning and examples of the intangible damages in this writing and while criticizing, we prove judicial practices related to the intangible damages. It is natural that resistance against this logic request of society is included a type of refusal of adjudication and will have many losses. We attempt that for proving this claim, set forth and study viewpoints of the honored jurists as well as explaining the available legal texts and in any case we present our understandings so that the agreed points are sign for passing the route and the disagreed ones are motive for criticism and presentation of the higher viewpoints.

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One Vote, One Experience

Non-observance of contents of Article 11 of Islamic Penal Code in determination of the guilty person punishment is not correct.

Punishment of the guilty person should be according to the substantive law at the time of crime commitment unless the recent approved law is less than the previous law at the time of verdict writing.

Now, we draw your attention to the issued verdicts in this regard.

1.        Judgment No. 1208-1209 dated Oct. 9, 1999, drawn up by division 1210 of Public Court of Tehran

2.        Judgment No. 1014 and 1015, drawn up by division 13 of Court of Appeals of Tehran Province in confirmation of the first instance judgment

3.        Judgment No. 40/608 dated Mar. 17, 2001, drawn up by division 40 of the High Court in reversal of judgment of Court of Appeals

4.        Judgment No. 1682 dated Dec. 24, 2001, drawn up by division 12 of Court of Appeals (parallel court division)

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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 273: When Procurator’s Office (judge or interrogator or investigation assistant to the public prosecutor general) knows investigation of the committed crime at the competence of the public court or the penal court of the province, regarding the fact that the procurator’s office can not issue writ of incompetence against the court, with what writ, the case shall be sent to the court?

Is writ of denial of justice correct as per Article 14 of Criminal Procedure Code of the Public and Revolution Courts approved in 1999?

Opinion of majority of votes of the members of the current commission in the session dated July 2, 2003 (Tir 11, 1382)

Writ of denial of justice is not correct as per Article 14 of Code Procedure of Public and Revolution Courts in the criminal affairs because writ of the subject of this article is related to the judge who has no competence of investigation, so this writ is not related to the public issues such as subject of the question. Also issuance of writ of incompetence by the procurator’s office through validity of the court competence has no legal esteem because the court dignity is higher than the procurator’s office and in the other hand, these two authorities are not parallel therefore and in the current situation, the solution is that the case subject of question is sent to the relevant court by opinion of the public prosecutor and his administrative decision.

Question 274: What is the purpose of insertion of “directly” in the Note 3 of Article 3 of Amendment Law for Law of Establishment of Public and Revolution Courts? And what is the meaning of phrase of “unless at discretion of the public prosecutor, investigations about the other aspects are necessary”?

Opinion of majority of votes of the members of the current commission in the session dated July 2, 2003 (Tir 11,1382)

Regarding the exception of the crimes inserted in the Note 3 of Article 3 of Amendment Law for Law of Establishment of Public and Revolution Courts and concerning insertion of “directly” in the said note and Article 15 of By-Law of the mentioned Law and with respect to the fact that discovery and proving the crimes subject of this note are undertaken by the court, the meaning is that the case is sent to the court directly and without mediation of procurator’s office. It is permissible that all the crimes of the mentioned note are sent to the relevant court directly through the bailiffs too but regarding the other aspects, the meaning is that if the public prosecutor recognizes that it is necessary that in the different crimes, that is the relevant crime in the competence of the court, the investigation to be performed, the crime in the competence of the court will be investigated in the procurator’s office too and in case of necessity, the case is sent to the relevant court by issuance of bill of indictment.  

Question 275: How does the public prosecutor of center of the province become ready for defense of the sent cases in the other judicial areas (except for the center of province)? How does he inform of the investigation session?   

Opinion of unanimity of votes of members of the current commission in the session dated July 2, 2003 (Tir 11,1382)

After issuance of bill of indictment and sending the case from public and revolution procurator’s office of the city to the province penal courts, the court in which the case referred, announces the time of court session to the public prosecutor of the center of the province by determination of the investigation time and invitation of the parties. In this case public prosecutor or his representative will take action regarding defense of the bill of indictment. 

Question 276: With respect to the Note of Article 3 of Amendment Law for Law of Public and Revolution Courts in some cases, competence of the public courts investigating the less important crimes coincides with competence of dispute settlement councils, that is two authorities are concerned as competent in the same cases, in these cases, which decision shall be made in the public court?

Opinion of majority of votes of the members of the current commission in the session dated July 2, 2003 (Tir 11,1382)

Dispute Settlement Council, as per Article 15 of By-Law, subject of Article 189 of Law for Development Third Plan…which was confirmed by the Chief of the Judiciary in the penal issues, can investigate in the limit of the By-Law and determines punishment and if the set forth subject such as penal or civil is not in its competence, sends the case, with its incompetence, to the judicial competent authority but in case these issues are set forth in the courts of justice administration, as the courts of justice administration are authority for investigation of public oppressions and complaints, they can not disqualify themselves in credit of dispute settlement  council.

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Acquaintance with English Judiciary System

4th Part

Dr. Mansour Pournouri

The 4^th part of this article sets forth the following items:

Role and judicial position of House of Lords and its duties including legislation, supervision and investigation, participation in the judicial affairs, judicial members of House of Lords and quality of investigation and issuance of verdict, also judicial committee of Royal Council and other courts and their duties such as work court of appeals, military court of appeals, coroners’ court and European Union Court 

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Report

Writing Criticism of One Verdict

Mohammadreza Khosravi

It is more than ten years that a course in the name of Writing Rule is one of the courses of the judicial trainees. As I remember, I was of the first ones who suggested it so when its necessity was confirmed, I became one of the instructors and still through these classes, I can visit the newcomers to the justice administration. 

Undoubtedly this is a desirable and suitable affair but there are two issues which explain direct criticism of judgments, the first one is that in the classes the Correct Writing is considered not the practical criticism, the second one is that most of our young colleagues have not participated in these classes, so by suggestion of the editor in chief of Ghezavat monthly, I decided to discuss a judgment and writ regarding writing opinion in each issue so that hereby the writing rules are criticized in the applied form and the first example is a judgment dated Aug. 27, 2003, drawn up by Tehran Public Court.

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Registration Code

(First Session) dated May 25, 2001 “Dr. Hashemi”

In this course, first of all, subjects which are discussed are named by the professor, some of these subjects are the registration regulations, study of the problems of the judges and employees of registration dept. exists in the registration boards and supervision boards or high council of registration at the times of contradiction or difference of opinion, scope of competence of these boards, regulations of the property registration, regulations of the deed registration, registration errors, adverse title deeds, objection to registration, claims regarding the trade marks and innovations and other subjects. These subjects have been discussed in the said session and the coming sessions in detail.

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Report

Quran Meeting

By arriving Ramezan holy month, month of Quran descending and for promotion of Quranic culture among the judicial and administrative colleagues of Justice Administration of Tehran Province, Deputy in Education of Tehran Province holds Quran meeting every year in this holy month simultaneous with birthday of Imam Hassan, so the third Quran meeting was held in the three fields of Reading, Memorizing and Concepts in Velayat Hall, located in Imam Khomeini Judicial Complex on Nov. 12, 2003.

At the end, the selected individuals of each field were granted rewards.

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    Article

Q: If one of the heirs of the slain person is blind and deaf, who may undertake retaliation, blood money or pardon? Does have guardian or judge power of execution of each of the three cases based on interest or not?

A: In case one person cannot take decision regarding his affairs and rights due to decline of wisdom or weakness of mind or may not have power of reasonable decision making in his affairs is considered as incapacitated and it is necessary that his rights are saved by appointing the guardian. As it is inserted in the question, the person cannot understand the contents due to blindness and deafness, on one hand, his rights are infringed and on the other hand, impossibility of decision-making causes rights infringement of the relevant persons and therefore he should be supported by guardian. In these cases, to appoint the guardian, the generalities of incapacity and non-litigious jurisdiction can be referred.        

Q: In case one of the heirs of the slain person is incapacitated and his guardian is accused of accessory to murder, shall the judge take measure based on interest of the minor or is there any need for appointing guardian ad litem?

A: In Article 1248 of Civil Law, some of the cases of the guardian dismissal are mentioned. If the court finds one of the cases such as incompetence of the guardian, it can dismiss him.

If no of the explicit cases of the guardian dismissal in the above mentioned article is effective, regarding the fact that the guardian is accused and right of the ward is infringed, the judge can dismiss him, because it is not reasonable that the one whom is accused, is complainant too and takes measure against himself and convicts himself.

With respect to the fact that the judge can dismiss the father and grandfather in some of the cases, so he can dismiss the guardian too.

In the meantime, if the judge recognizes that the natural guardian does not observe the interest of the child, it can dismiss him.

Ayatollah-al-Ozma Golpaygani says in this regard that: “natural guardian, canonically and legally, is father and grandfather and his guardianship is fixed unless the judge recognizes that the guardian may not observe the interest of the child and causes mental, financial or physical damage of the child, in this case he can dismiss him.

Article 72 of Civil Procedure of Public and Revolutionary Courts (in the criminal affairs) stipulates whenever guardian is accused of a crime or is accessory of a crime, the court appoints another person as guardian or follows up the penal affair and takes necessary measures for preservation and collection of crime proofs and prevention of the accused escape.