Editor in Chief’s Note

At the beginning of the new office term of management of the judiciary, editor-in-chief takes preparing 5-year plan as a good omen and decides to mention the important notes which shall be considered at the plan. As an introduction, he sets forth the main goal of the judiciary which is Justice.

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A Selection of Latest Legal Approvals

·          Amendment of Executive By-Law of Press Law, approved in 1985 and its next amendments

·          Verdict No. 453 of General Board of Administrative Justice Court about cancellation of regulations of Article 13 of Amended by-law of execution of law for registration of trade marks and patents

·          Amendment of Rls. amounts related to the sections crimes inserted in the law for manner of prevention of air pollution

·          Verdict No. 8 dated Apr. 4, 2004 of General Board of Administrative Justice Court about pension of unemployment period

·          Not to have credit does not negate right of the acquired person.

-          Verdict No. 458 dated Feb. 21, 2004 of General Board of Administrative Justice Court regarding allowance of mission to abroad

·          Dismissal of the occupation is different from the administrative service dismissal.

-          Verdict No. 413 of General Board of Administrative Justice Court about return of the ones who are convicted of the occupation dismissal.

·          Respite of applying Article 9 has been five years.

-          Verdict No.415 of General Board of Administrative Justice Court about respite of execution of Article 9 of Urban Land Law

·          Law of respect for legal freedoms and citizenship rights reserving

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Orders of Judges’ Disciplinary Courts

· Judgment No. 7 dated Apr. 12, 2004, drawn up by branch … of Judges’ High Disciplinary Court

- Investigation of accusation of the minor child despite of having juvenile court is disciplinary violation in the judicial unit.

·  Judgment No. 45 – Apr. 26, 2004, drawn up by branch … of Judges’ High Disciplinary Court

- Convene the court sitting without the elected attorney and notification of time to him are disciplinary violation.

·  Judgment No. 15 and 16 – Apr. 15, 2004, drawn up by branch … of Judges’ High Disciplinary Court

- Issuance of writ regarding claim of the person, whose ownership is not objected by defendant, is not correct and is disciplinary violation.

·  Judgment No. 63 dated May 15, 2004, drawn up by branch … of Judges’ High Disciplinary Court

- Investigation of the subject of increase of relief without its notification to the claim defendant is disciplinary violation.

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Justice in Islam

Hojjatoleslam Valmoslemin Abbasali Alizadeh

The writer in this article set forth the “Doctrine of Binding Obligation in the Transactions and Treaties”.

“Imamieh” jurists believe that most of the judgments which have been issued by Islam about transaction are of kind of approved ones, because before Islam some transactions were common among people such as sale, rent, etc. and as they were not contrary to interest of the society, they were confirmed and whatever was not expedient, even if hidden, they were refused such as usury sale.

At that time, it was common when contract of sale, rent etc. was concluded, the seller transferred the object of transaction to the buyer and took the price, so the buyer was owner of the object of transaction and the seller was owner of the money, and this has been a common and natural method from the past to present, therefore, all the wise men accepted this and the Islam confirmed it too. In the meantime, “Imamieh” jurists believe that the primary principle in the contracts such as transactions and treaties is obligation.   

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One Vote, One Experience

·    Penal Emphasized Verdict No.: 1378-17

·  Verdict of the public court is considered as emphasized and is initiated in the General Board of Supreme Court if its revision authority is Supreme Court.

·   Initiating Reason: Difference of opinion of branch No. 3 of Judges’ High Disciplinary Court in substitution of branch of Supreme Court with Tehran public courts

·  Subject: Willful Murder, Manslaughter

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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 294: Are the judgments which are rendered by public courts regarding complaints subject of articles 146 and 147 of law for execution of civil judgments reviewable or final?

Opinion of unanimity of votes of members of the current commission in the session dated Jan. 21, 2004 (Bahman 2, 1382)

The court decision about article 146 of civil judgments execution law is administrative because this decision is made when claim of the third party regarding the seized goods is relied on final judgment or official instrument, so as in issuance of this decision, there is no judicial and substantive investigation, it can be said that it is an administrative decision but about complaint of the third party relied on the other reasons, as it is inserted in article 147 of the said law, the court issues writ of attachment of the executive operations in case it distinguishes the evidences solid and then by judicial investigation of evidences of the parties to the claim, the expedient judgment will be rendered. It is evident that this judgment is substantive and subject to the civil procedure code and is reviewable. In the meantime, opinion No. 7/1380 dated May 19, 1997 of Legal Department confirms this opinion.

Question 295: Is order for sale of indivisible joint property reviewable or not? 

Opinion of majority of votes of the members of the current commission in the session dated Jan. 21, 2004 (Bahman 2, 1382)

Order for sale of the indivisible joint property is not verdict because relief of the plaintiff in this regard is not considered as a claim as a result of judicial investigation and proceedings are not performed and there is no convicted person. The court issues merely the sale order and sale of the property and division of its price are performed by civil judgment executions unit. Moreover, it has been inferred from article 5 of joint properties separation and sale law approved in 1978 “… generally executive regulations of this law will be as per the by-law which is approved by ministry of justice.” That the legislator believes in manner of law execution without civil procedure formalities, so the court decision in this regard is sale order and as according to article 331 of civil procedure code, merely the courts judgments can be objected, this order, which is not a judgment, can not be objected and reviewed and is final. Opinion No. 7/455 dated Apr. 16, 1983 of Legal Department confirms this opinion.

Question 296: Is presentation of new proof in the court of appeals acceptable?

Opinion of unanimity of votes of members of the current commission in the session dated Jan. 21, 2004 (Bahman 2, 1382)

If new proofs in the court of appeals are presented and are related to revision inserted in article 348 of civil procedure code or are effective concerning proving the filed claim in the initial stage, they are acceptable because article 199 of the said law has granted power of any kind of investigation for finding out the truth to the investigating court. By cancellation of article 509 of former civil procedure code, it shall not be derived that by belief of the new legislator, other revision authority cannot accept new proof because if the legislator has such a decision, it shall be mentioned explicitly in an article about revision, therefore as court of appeals has right of investigation after quash, necessity of this investigation is that it can use the means of it, in this case, it can investigate for finding out the truth unless a new claim which is not reviewable but regarding the opinion that by existence of new reason, it shall be performed as per clause 7 of Article 426 of civil procedure code through rehearing, it can be said by acceptance of this opinion, in fact revision stage is negated of the judgment debtor because rehearing can be filed in the stage that the instrument has been hidden in the proceedings stage.

Question 297: Does protestable verdict subject of article 260 of civil procedure code in the penal affairs include a case in which the accused or his attorney is present in the initial proceedings session and presents statement of defense or notice of protest?

Opinion of majority of votes of the members of the current commission in the session dated Jan. 21, 2004 (Bahman 2, 1382)

Phrase of proceedings stages inserted in article 260 of criminal procedure code expresses initial and appeal proceedings stages, so if the accused or his attorney are present in the initial stage or presents statement of defense or notice of protest, appeal verdict is considered as verbal even if the accused or his attorney is not present in this stage and does not present statement of defense or notice of protest, the only evidence of the said article is the case in which the accused or his attorney is not present in the court of first instance sessions and does not present statement of defense or notice of protest, in spite of this, the accused acquittal is issued and the complaint revises this verdict and in this stage the accused or his attorney does not defend and the accused is convicted, this court of appeal verdict is considered as passed in default of the person and will be subject to article 260 of the mentioned law.

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Writing Criticism of One Verdict

Mohammadreza Khosravi

7^th Part

The writer in writing criticism of the verdicts has investigated the issued suspended writ of prosecution. He believes that despite of tiresome task of the judges and the work concentration, no excuse can be accepted for non-observance of the writing principles of the judicial decision.    

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Report of Travel of the Mission to Holland

Reza Jafari

Third Part

Third part of this report is allocated to the report of visit of the Family Court of city of Utrecht of Holland concerning trial process of two cases of theft regarding juvenile under the age of 18 in the court and determining punishment for juvenile delinquents subject of two cases and also report of visit of the activities and goals of council of care and support of the children of the said city.

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Historical

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

An abstract of the book of “Memories of one Attorney”, Written by: Adib Razavi

Printing-House: Khajeh 661279

When “Atashfeshan” newspaper was publishing by my management “Adib Razavi”, an article was inserted at Issue No. 20 dated Aug. 11, 1950 under title of “Reza Shah is Complaining” with this contents that Reza Shah is complaining against Ghavamossaltaneh (Ahmad Ghavam) in the National Court.

The article inserted in Issue No. 20 of “Atashfeshan” newspaper which was published by chance without information of Razmara plan that was overthrowing monarchy of Mohammad Reza Shah, caused formation of a penal case and rendering of an ordered and illegal judgment against me.   

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Costs (Proceedings Loss)

(A Review on Changes of Laws and Judicial Precedent)

Written by: Mohammad Hadi Fazlali

Article 515 of civil procedure of the public and revolution courts prescribes: “plaintiff has right to demand the loss resulted from proceedings due to fault of the defendant regarding acceptance or refusal to pay the right concerning losing or being cause.

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Validity of Judge’s Science in the Claims

Ayatollah Mohammad Momen

Member of the Jurists of Guardian Council and Member of Board of Trustees of Ghom University

Second Part

In the first part, we set forth the interesting subject of the Judge’s Science and discussed the opinions of most of the jurists.

In this part, we are going to talk about “A Review on Proofs of Validity of Judge’s Science”.

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Commission

The second part of answer and question set forth by Legal Department of the Judiciary about Law for Amendment of Public and Revolution Courts is submitted. The questions are about Criminal Procedure bill of indictment.

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City of Ray Justice Administration

This Justice Administration is located in the limitation of municipality of district 20 and part of limitation of municipality of district 15 and part of limitation of municipality of district 19.

This Justice Administration has 14 family legal court divisions, penal court divisions, civil execution court divisions as well as public prosecutor’s office and revolutionary prosecutor’s office of Shahr-e-Ray and court division 31 of Islamic revolution court. Out of the 14-court division, 3 are family court divisions, 5 legal court divisions and the remaining penal court division. In public prosecutor’s office and revolutionary prosecutor’s office, there are 7 branches of assistant to the public prosecutor general office, 5 interrogation branches, execution of judgments of criminal affairs and also execution of judgments of revolutionary and supervision section. The judges are totally 39.