Editor in Chief’s Note

Editor in Chief in this issue contents himself with congratulating the New Year to all the colleagues and allocates its continuation to the spring message of Head of Justice Administration of Tehran Province which is written by him every year on the occasion of beginning the new year.

Head of Justice Administration of Tehran Province in this message with a wisely expression, while appreciating the troubles of the organization of Justice Administration of Tehran Province including administrative and judicial, mentions a summary of the performed activities in the year of 2003.

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A Selection of Latest Legal Approvals

·          Any type of activity of dispatch of student depends on obtaining authorization.

·          Approval regarding tables related to driving offenses in the cities and roads of the country and rate of its offenses

·          Law for Amendment of Law of Definition of the Substantial Condemnations in the Penal Laws approved in 1987

·          Verdict No. 260 dated Oct. 4, 2003 of General Board of Administrative Justice Court about payment of pension of heirs of the employees

·          Verdict No. 285 of General Board of Administrative Justice Court about cancellation of circular letter No. 33481 dated Mar. 5, 2004 of Director-General of Personnel Office of The Judiciary Judicial Employees

·          Law for Amendment of Article (1169) of Civil Law approved in 1935  

·          Support and training of the children

·          Law for Inquiry of Article (5) of Law for Third Plan of Economic, Social and Cultural Development of Islamic Republic of Iran

·          Insolvency is non-financial action and its dismissal or acceptance can be reviewed. 

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Orders of Judges’ Disciplinary Courts

-          Dismissal of the judicial service for 3 months and degradation of 2 judicial basis because of illegal order for eviction

-          Opinion of majority of reference to the judge of the court division by the chief justice is not offense in case of refusal order.

-          Order for staying executive operations of verdicts of dispute settlement board of Labor department is within competence of Administrative Justice Court.

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Justice Administration of City of Varamin

City of Varamin has 4 judicial areas: City of Varamin – Districts of Gharchak – Pishva – Javadabad

Public and Revolution Procurator’s Office has 3 interrogation divisions and 5 divisions for assistant to the public prosecutor general and the Justice Administration Courts have 4 civil divisions and 4 penal divisions.

Now, Varamin Justice Administration and Public and Revolution Procurator’s Office have 27 judicial personnel and 110 administrative personnel, Gharchak judicial area has 3 civil divisions and 3 penal divisions, 7 judges and 35 administrative personnel, Pishva judicial area, 2 civil and penal divisions, 3 judges and 20 administrative personnel, Javadabad judicial area, 1 public division, 2 judges and 5 administrative personnel.

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Justice in Islam

Hojjatoleslam Valmoslemin Abbasali Alizadeh

Doctrine of Genuineness is one of the rules which most of the jurists pay attention to it and its purpose is about man based on action genuineness after that action completion and about the others’ action concerning doubt is based on the Moslem action genuineness. The writer in this part, has mentioned opinion of the deceased Sheikh Ansari and Ayatollah Makarem Shirazi and the deceased Ayatollah Bojnordi and Mir Fattah Maraei. Also, he sets forth the document of action of genuineness rule and mentions some verses and traditions in this regard.

(First Part)

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One Vote, One Experience

Reason for reversal of verdict of court of first instance and court of appeals in relation with conviction of transferor and transferee in accusation of transaction in order to avoid liability in verification branch No. … of the High Court

1.        Verdict No. 2400 dated Jan. 20, 2004, drawn up by division … of Tehran Public Court: by virtue of this verdict, transferor and transferee have been convicted to be imprisoned in accusation of transaction in order to avoid liability.

2.        Verdict No. 892 dated July 22, 2003, drawn up by division … of the Court of Appeals of Tehran Province: verdict of court of first instance has been confirmed (by considering mitigation of penalty for the transferee).

3.        Verdict No. 7/1016 dated Oct. 13, 2003, drawn up by penal verification division … of the High Court: verdict of court of first instance and court of appeals is reversed and verdict of the convicted persons’ acquaintance is issued.    

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Duty of the Damaged Person in Decreasing Damage with Emphasis on English & American Law

Seyed Mohsen Sadat Akhavi, Ph.D (Teacher Training University)

Mahmoud Kashani, Ph.D (Shahid Beheshti University)

Obligation of the damaged person in decreasing the damage which is an accepted rule in common law, is a defense set forth by the defendant of the claim of liability. Meaning of this rule is that the damaged person of the contract breach or the harmful action of the defendant shall commonly prevent the damage or its expansion. If the defendant of the claim can prove his negligence, he will be exempted from payment of that part of the damage which is avoidable.

In case at a time it is possible that the plaintiff can prevent creation or development of damage by performance of the common measures and abstain himself from its carrying out, the defendant has no obligation for compensation of that part of the damage which is avoidable by the plaintiff. Sometimes, this rule is interpreted as the damage decreasing and as this is the damaged person who shall perform the common measures for decreasing damage, it is interpreted as duty of the damaged person in decreasing the damage. It is said that the defendant (the damaged person) is obliged not to be indifference regarding the incurring damage and whenever there is possibility of prevention of creation of damage or its development, he shall take action concerning its decreasing.       

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Around the Table

The following questions were discussed in the around table dated Oct. 2, 2003, the commission majority or unanimity of votes are as follows:

Question 284: Is there any explicit verdict regarding the fact that the action of ejection is not financial and dispossession is financial (in case of variance in ownership)?

Opinion of unanimity of votes of members of the current commission in the session dated Oct. 2, 2003 (Mehr 10, 1382)

Considering the action of ejection, which is not financial, there is no clear law in the current laws but regarding articles 158 and 159 of execution law of civil verdicts in which the legislator has mentioned calculation criterion of the executive costs, has separated criterion of collection of executive cost in the financial claims that its relief is not cash, from the action of ejection. It seems that purpose of the legislator of this separation is that action of ejection is non-financial because if action of ejection is considered financial, it is determined in article 158 of law for execution of civil verdicts which has mentioned manner of calculation of financial claims execution cost, the relief of which is not cash, so there is no need for mentioning other criterion in article 159 of the said law about action of ejection, moreover, article 3 of executive by-law of tenant and landlord relations law, approved on May 9, 1999, can confirm that this claim is not financial.

But regarding dispossession, which is financial, with respect to the fact that article 3 of law for collection of some of government income has absolutely mentioned that in the immovable financial claims and dispossession of immovable sources regarding competence of the value, the relief is whatever that plaintiff determines in his application and as the plaintiff submits his application while the claim is financial, so it seems that action of ejection including the fact that variance in the ownership is set forth, explicitly the above article is financial and the said article  has cancelled precedent verdict No. 585 dated Oct. 5, 1993 of General Board of State Supreme Court.

Question 285: Can the Agheleh (paternal relatives of a murderer with exception of women) be arrested according to Law for Manner of Execution of Financial Convictions up to proving insolvency?

Opinion of majority of votes of the members of the current commission in the session dated Oct. 2, 2003 (Mehr 10, 1382)

Regarding the explicitness of Article 312 of Islamic Penal Code, if the agheleh cannot pay the blood money within 3 years, the blood money is paid out of public treasury. Therefore it can be resulted of this phrase that first of all regarding granting time-limit to the agheleh before its expiry, he cannot be arrested and second, after expiry of time limit, as it has been absolutely mentioned by the legislator that in case of inability of agheleh in payment of blood money, it shall be paid out of public treasury and executive manner of the judgment is determined by the legislator and as obligation of the agheleh for payment of blood money is a exceptional judgment and blood money of the victim is payable out of the public treasury in any manner and by virtue of law so the agheleh can not be arrested by virtue of Article 2 of Law foe Manner of Financial Convictions Execution. In the meantime, opinion No. 7/6407 dated Dec. 25, 1997 of Legal Department of the Judiciary confirms this argument.

Question 286: Is request of insolvency by installments possible before demand of the creditor?

Opinion of unanimity of votes of members of the current commission in the session dated Oct. 2, 2003 (Mehr 10, 1382)

As per article 1 of Law of Insolvency approved in 1934 (The insolvent is the one who can not pay the conviction cost or his debt due to having no-enough property or non-access to his property) so insolvency is a temporary affair. Maybe insolvency plaintiff exits insolvency during the investigation process. For example he obtains his properties or receives inheritance now the question (is insolvency by installments acceptable before demand of the creditor?)

It shall be said that this request is acceptable when the debt become immediately payable and the creditor takes action regarding filling the suit against debtor. In this case request of insolvency by installment is acceptable because as per articles 277 and 652 of Civil Law, installment of debt and considering a fair respite in its confirmation has been predicted for the debtor or the committed person under some of the conditions. In the meantime, by issuance of final judgment or applying regulations of article 2 of Law for Manner of Execution of Financial Convictions, insolvency claim of the judgment debt by installment is acceptable and acceptance of the said claim in this stage does not depend on the fact that the judgment debtor to be imprisoned.  

Question 287: Can the amount which is collected by the major heirs of the slain person for retaliation be received by the minor or is it given in trust and can the minor heirs of the slain person demand the day price of blood money?

Opinion of majority of votes of the members of the current commission in the session dated Oct. 2, 2003 (Mehr 10, 1382)

The cases in which all the heirs of the slain person are minor or insane or there is no natural guardian, the problem will be solved by religious injunction of the Honored Leader (Circular Letter No. 1/80/7559 dated July 19, 2001 of the Honored Chief of the Judiciary) but concerning subject of question that heirs of the slain person are major and minor, if the majors intend to retaliate, the minor’s share shall be provided as per precedent judgment No. 31 dated Nov. 11, 2003 of Supreme Court. Of course interpretation of “provide” is different, that is it shall be paid in cash or a deed shall be received, it is discussable. Opinion No. 7/1051 dated Dec. 16, 1999 of Legal Department regarding the said precedent and contents of article 264 of the Islamic Penal Law in which it is inserted “if the heirs of the slain person are numerous, the ones who intends to retaliate, shall pay the other’s share of the blood money” has announced that the blood money shall be paid in cash. So by cash payment, canonical blood money share of the minor has been provided and given in trust issue is cancelled because ownership of blood money has been considered for the minor at the time of retaliation and after growth he can accept or refuse it and satisfies with the same retaliation. In this manner after growth, demand for the blood money in the day price is cancelled.    

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Writing Criticism of One Verdict

Mohammadreza Khosravi

In this part, one verdict has been criticized regarding writing viewpoint. The important case is that the writer believes that expression of “Beating and Use of Foul Language” is not an appropriate compound because “Use of Foul Language” does not mean scurrility and also the legality of communication property is considered not notice.

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Acquaintance with English Judiciary System

7th Part

Dr. Mansour Pournouri

The 7^th part of this article discusses the continuation of subject of attorneyship (solicitors) and also studies Center for Judicial Education and Studies of the Judges including beginning of the service and in-service courses and salary and facilities of the work place of them.

The 6^th part of this article sets forth the attorneyship.

Attorney’s profession in England is of important and remarkable occupations and its social position is in the manner that the courts judges are elected from among the expert barristers and skillful solicitors.

Attorney’s profession in England is divided into two branches: 1. barristers who have competence of filling and defending the claims in the high courts and the courts judges are mainly elected from among them and 2. solicitors who have competence of consultation with the people and preparation of defense bills and drawing up wills, sale contracts and other official deeds.

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Role of Justice in Judgment

Dr. Katouzian, the outstanding professor of Law, participated in and had a long direct speech with the judges in one seminar held in Education Department of Justice Administration of Tehran Province. The subject of this speech was “Justice in Judgment” which was received gladly by the colleagues. In his speech, he stated that: “The judge faces with two cases in judgment: 1. Performance of duty which is execution of laws in the brought action 2. Conscience resulted from his moral reflexes. The experience shows that if conscience is not more effective than the first case is not less as well and the judge pays attention to the conscience more because when he issues verdict based on conscience, he can not think that he issues verdict on basis of obedience of law and government and he is happy because he issues verdict by inclination in the manner that he wishes and deemed proper by the justice and he believes in.        

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Historical

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

Brigadier General Mohammad Khan Afshar Tous was appointed as head of police organization by Dr. Mosaddegh, the prim minister of that time.

After two weeks of research, his corpse was found in the Lashgarak Mountains.

After Proceedings sessions, verdict of acquittal of the accused persons of the file, Mr. Hossein Khatibi, Mr. Aliasghar Mozayyen, Mr. Aliakbar Monazzah, Mr. Nasrollah Bayandar, Mr. Nasrollah Zahedi, Mr. Alimohammad Hashemzadeh, Mr. Fereydoun Balouchgharaei, Mr. Hadi Ghassemlou, Mr. Ahmad Balouchgharaei, Mr. Abdollah Amiralaei, Mr. Abbasali Najafi, Mr. Amir Rostami, Mr. Shahriar Balouchgharaei, Mr. Nasser Zamani, Mr. Nasir Khatibi, was issued. Defenses of their attorneys are remarkable.