Editor in Chief’s Note

Editor in Chief in this issue, under the pretext of Haj (Pilgrimage to Mecca) period, discusses the secrets and effects of this great congress and inserting a tradition from Imam Sadegh, describes some points of this Honored Imam. Then, he mentions the Haj souvenir that one of the judges has granted to his visitors which is different from the other presents. His souvenir is a poetry of the actions performed in Haj.

At the end, the writer requests that this intellectual capacity to be used for the successful judges encouragement and criticizes of this matter that some of the directors participate in this ceremony every year.

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*A Selection of Latest Legal Approvals

·          Request for mitigation due to waiving objection right is legal.

·          Arrangement of executive guidelines in the judicial affairs is beyond competence of council of ministers.

·          Change of academic field of the students without interruption of academic course is not considered as unjustified leave of absence.

·          Withdrawal and deduction of amount of the salary increase and allowance of the first month is merely enforceable for the governmental employees and is not applicable for the retired.

·          Prescription regarding worker and employer disputes is not applicable.

·          The blood money of religious minorities recognized in the Constitutional Law makes no difference with the Moslem blood money.

·          Verdict No. 432 of General Board of Administrative Justice Court regarding cancellation of decree No. H29870T/55112 dated Dec. 23, 2003 of council of ministers

·          Verdict of precedent No. 663 dated Dec. 22, 2003 of General Board of High Supreme about insolvency filing suit before judgment debtor imprisoning

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*Orders of Judges’ Disciplinary Courts

-          Reversal of initial judgment and receiving it as order and returning the case to the court of first instance with goal of continuation of investigation by the advisor of the court of appeals, breach of the said regulations of the judgment No. … dated Feb. 16, 2004, drawn up by branch … of High Disciplinary Court of Judges

-          The chief justice taking measure regarding non-obtaining the last defense from the accused of the case also investigation of action of the judgment debtor loan requesting, despite of being verbal is object of protest of the offense. Judgment No. 564 dated Feb. 22, 2004, drawn up by branch … of High Disciplinary Court of Judges

-          Chief Justice of the Family Court measure regarding issuance of non-conciliation certificate at the wife request shall be on the strength and by opinion of a common arbitrator. Without selection of an arbitrator by each of the spouses is breach of the said regulations. 

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*District 1 (Shemiran) Tehran Public & Revolution Procurator’s Office

In this part, the reporter describes the above judicial unit. This unit has 38 judges and 52 employees, the names of whom are mentioned herein and some of them have been interviewed. Their statements are also inserted.

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*Justice in Islam

Hojjatoleslam Valmoslemin Abbasali Alizadeh

Writer in this part set forth the continuation of Doctrine of Genuineness. He mentions that the purpose of genuineness, is not subject of genuineness set forth in the principles of jurisprudence because the discussion is oral. The purpose is mentioning the others action in genuineness or non-genuineness. In this part, he discussed proofs of doctrine of genuineness and he states some verses of Quran and traditions of the Innocents and consensus and wisdom as examples of proofs of this doctrine.

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*One Vote, One Experience

Verification Branch … of the High Court: With investigation of one of the objected judgments, has recognized it regarding the defective investigation and research and the case has been referred to the same branch of the (appeals court of Tehran province) for defects removal and repeated investigation and issuance of the expedient verdict.

Opinion No. 7/7143 dated Nov. 16, 2003 of Legal Department of the Judiciary

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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 288: Does the court verdict about cancellation of opinion of commission of article 12 of urban land law fix the stability of ownership of the judgment creditor and it there any need for repeated filing suit for cancellation of the issued deed in the name of the government?

Opinion of majority of votes of the members of the current commission in the session dated Dec. 24, 2003 (Day 4, 1382)

It is inferred from the question that the court investigated cancellation of opinion of commission article 12 of urban land law at the mere request of the plaintiff and issued the cancellation verdict of the said opinion. As this verdict has declaratory aspect, it is announced to department for registration of deeds and real estates but the said department cannot take action regarding cancellation of the issued title deed in the name of the government and issue new deed in the name of plaintiff on the strength of the above verdict because this measure needs the court verdict and issuance of the execution writ so as the plaintiff has not filed suit regarding cancellation of title deed issued in the name of the government as per governing principals on the manner of brining action and proceedings in civil matters such as article 2 and alternatives 3 and 4 and 5 of article 51 of civil procedure code approved in 2000 and no verdict has not been issued in this regard and as maybe the mentioned property has been transferred to the others and a deed has been issued in his name so it can be said the mere issuance of the verdict concerning cancellation of opinion of commission of article 12 of urban land law is not reason for ownership of the plaintiff but it necessary that the aforesaid takes measure regarding cancellation of the title deed issued in the name of the government and issuance of new deed in his own name by virtue of the said verdict by filling repeated claim so that the court issues the verdict after substantive investigation. It is evident that by issuance of the verdict for the plaintiff and issuance of the execution writ, department for registration of deeds is entitled to issue new deed in his name.

Question 289: Is action for execution of an instrument concerning the mortgaged property against the buyer (regarding precedent verdict No. 620 dated Nov. 16, 1997 and emphasized verdict No. 21 dated March 2, 1998) hearable? And is this action enough for obligation of seller for release of mortgage?

Opinion of unanimity of votes of members of the current commission in the session dated Dec. 3, 2003 (Azar 13, 1382)

(The First Part of Question):

Although statement of the legislator in articles 793 of Civil Law and 264 of the Former Civil Procedure Code and 34 Repeated Amendment of Registration and also 299 of Non-Litigious Jurisdiction Act and contents of Precedent Verdict No. 620 dated Nov. 10, 1997 which accepts popular opinion of Emamieh Jurists regarding cancellation and non-effectiveness of such transactions and has closed filing the above claim by any beneficiary against the buyer regarding the mortgaged property in relief of action for execution of an official instrument but the other opinion is that the goal is reserving the mortgagee rights so by preserving these rights, any kind of possession in the said property will be permissible and it can be said that this opinion has no contradiction with judicial logic and the courts precedent which its example is the emphasized verdict No. 21 dated March 2, 1998 and has been issued a few time later after precedent verdict No. 620 and also opinion of many of our jurists such as opinion of Ayatollah Khoei and the law jurists such as Mr. Emami, Ph.D. and Mr. Katouzian, Ph.D. moreover, members of the current commission in the session has emphasized on reserving the mortgagee rights, therefore regarding the question, investigation of the action is permissible.

But regarding (The second Part of Question) there is two opinions. Majority of the members of the commission believe that as release of mortgage is kind of action and action for release of mortgage causes dissolution of the mortgage contract and is a legal relation so it is necessary that the plaintiff while submitting the application of action for execution of instrument as the second action, asks for release of mortgage but the minority believes regarding the fact that release of mortgage such as settlement of account of the municipality and tax is of the tools of execution of judgment of execution of official deed and it is supposed that the investigating court is informed that property subject of action is under mortgage so at the time of issuance of action for execution of official deed, but inserting the mortgagee right reserving the result is positive and there is no need for separate filing claim in this regard.

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Writing Criticism of One Verdict

Mohammadreza Khosravi

In continuation of this report, the writer has studied and criticized one of the courts verdict.

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*Report of Travel of the Mission to Holland

Reza Jafari

By invitation of Institute of Study of Crime and Execution of Law of Holland (NSCR) which was arranged by United Nations Children’s Fund (UNICEF), the mission as tour of study of court and youth police visited Holland.

The report was prepared by Mr. Reza Jafari, Head of Shahid Fahmideh (Juvenile) Judicial Complex.

First part of the report includes the following:

1.        An introduction to the NSCR Institute

2.        Commission of the Institute

3. General status of proceedings of the youth in Holland

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The place of equity in international trade law

Mohammad Mehdi Kariminia

The study of “equity” place in international trade law necessitates an acknowledgement about it and the time of its establishment in British law.  With this explanation of equity as a legal resource and principle, certifies not only in international trade law, but also in other legal aspects that it is effective and plays an important role. 

Equity principle got its own importance gradually in international trade law and forwarded from British domestic laws and played an important role in international trade claims.

Nowadays, in international trade disputes, equity principle is being paid attention, especially wherever the quarrel parties request for submission of this principle.  In the cases that parties lack agreement for their dispute settlement, it may be assigned to international arbitrators or international judicial authority.

Equity is one of the general legal principles, which acts as a document in the time of any dispute appearance among the parties, either alone or together with other legal resources  (Law, convention, tradition and etc.  Depending to the item) in order to remove and dissolute any referred dispute to a judge or an arbitrator.  Then interim disputes shall be dissolved on the basis of the same general legal principles.  These conditions occur mostly when there are disputes among one government or a governmental company and a foreign private company as the second party. 

In this research, we have paid attention to equity place in different aspects in international trade law. 

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*Historical

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

In the second par of trial of murderers of Afshar Tous, defense of Mr. Maleki, one of the attorneys at law is remarkable. For example: part of defense of him is as follows: “ Dear Mr. Public Prosecutor, today, you have a great duty. If you have any negligence, you and the government will be responsible before history of Iran. In the 20^th century, some of the accused are behaved in the manner of primitive times. We introduced explicitly agents and supervisors and dictators and we performed our duty. Now that is your turn, perform your duty by execution of the justice you requested of the court at the beginning of this court convention in the name of observation of principles of the constitutional law, principles of united nations charter and principles of humanity and do not satisfy that stain on reputation of the Iranian not to be removed.

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*Executive Plan of 2004

In this issue, this part of the magazine has been allocated to the executive plan of 2004 which is usually predicted for the coming year.

The main goal of the plan in 2004 is promoting the quality criterion, which includes 3 sections:

A-      Promoting quantitative and qualitative level of the investigations (including 22 sub-sections)

B-       Visiting the management with the colleagues and the people

C-       Evaluating the plan