Editor in Chief’s Note

On the occasion of “the Holy month of Ramezan”, editor in chief set forth the subject of “Ghadr night” and its effects and results and on the occasion of martyrdom of “Imam Ali”, mentioned a selection of statements of him addressed to agents such as subject of 1. forgiving subordinates, 2. accepting criticism, 3. prohibition of accepting present, 4. non-speeding for acceptance of talebearers, 5. specifications of the judges, 6. Acceptance of truth

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A Selection of Latest Legal Approvals

·          Employer on the probation base is employed on the official basis at the term expiry.

·          Notary Public Offices are not bound to inquire from Ministry of Housing and Urban Development regarding transfer of the lands.

·          Executive By-Law of Articles (2) and (17) of Law for Support of Rights of Computer Software Manufacturers

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Disciplinary Warnings         

§          Appointment of two experts in form of even is explicit contrary to the Article 258 of Public and Revolution Courts Procedural Law in the civil affairs and is offense.

-       Judgment No. 193-195 dated July 25, 2004

§          Securing before explanation of the accusation to the accused and rendering judgment without taking the last defense are offense.

-          Judgment No. 151 dated July 6, 2004, drawn up by branch …of Judges’ High Disciplinary Court

§          Non-mentioning verdict document and non-mentioning reviewable description or its finality are disciplinary offense.

-          Judgment No. 183 dated July 25, 2004, drawn up by branch … of Judges’ High Disciplinary Court

§          Subject of Article 28 of Law for Landlord and Tenant Relations passed in 1977 has ability of inference of two opinions. Messrs. ….advisors of branch … of Court of Appeals of Tehran Province who have understanding other than Judges’ Disciplinary Prosecutor’s Office are not offenders.

-       Judgment No. 56 and 57, drawn up by branch … of Judges’ High Disciplinary Court

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Justice In Islam

Hojjatoleslam Valmoslemin Abbasali Alizadeh

The writer in this part, sets forth “Doctrine of Meysour”. Its meaning is that “whenever performance of an obligation is difficult for the obliged or he can not do it perfectly, it does not become void completely but he shall perform it as much as it is possible”. Then inserting traditions, he mentions some reasons for the said Doctrine. He mentions three traditions in this relation. One of them is of Rasoul-e-Akram and two other traditions are of Hazrat-e-Ali. At the end he sets forth opinions of the religious scientists such as the deceased Sheikh Ansari.

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One Vote, One Experience

In this part, you read: regarding possibility of mitigation of penalty in the stage in which the convicted request for mitigation of penalty due to withdrawal of case, chief justice of branch 19 of Court of Appeals believes that the judgment can be the minimum punishment of imprisonment or cash fine. Prohibition of mitigation less than one year of imprisonment is true in the primitive stage.  

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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:

304- How is the executive and practical form of Note under Article 7 of the Law for Amendment of Articles of Check Drawing Law approved in Sept. 2003?

Opinion of unanimity of votes of members of the current commission in the session dated Apr. 22, 2004 (Ordibehesht 3, 1383)

In this question, two manners can be imagined. One: the accused of drawing bad check in the position of check holder brings an action regarding usury check or check acquiring through illegal transaction, second, in the position of defense he claims in this manner. In the first case as at first time, usury crime or other crimes subject of Article 14 of check drawing are filed, the prosecutor’s office can investigate and gives opinion. Considering counterclaim of the accused about usury check, subject of complaint, investigation shall be made too and in the second manner, that is only by the accused claim regarding usury check subject of complaint, the investigating authority is obliged to investigate correctness and inaccuracy of the subject and in case of recognition of fact renders proper judgment but about complaint or claim for acquiring check through illegal transaction as the affair nature has legal aspect therefore investigation of the complaints or the said claims, depends on proving illegality of transaction in the court of law that in this case prosecutor’s office depends investigation continuation on rendering final judgment by issuance of writ of litispendencia.   

305- Does investigation of crimes of fraudulent or culpable bankruptcy require rendering bankruptcy judgment in the court of law?

Opinion of majority of votes of the members of the current commission in the session dated May 27, 2004 (Khordad 7, 1383)

A merchant is recognized as bankrupt who has the said conditions in Article 412 of Trade Law and takes measure as per Article 413 and 414 of the same law that this affair may be performed by statement of the merchant or request of one or several creditors or request of the public prosecutor. Regarding the fact that the subject is commercial and its investigation is a technical affair, the necessary investigations shall be performed in the court of law and in case of proving, bankruptcy judgment of the merchant is rendered so first of all it shall be found that he is merchant and bankrupt. As the public prosecutor, according to Article 415, 544 and 550 of the said law, is of the authorities who can request for culpable or fraudulent bankruptcy, it is evident that the penal authority can investigate the mentioned crimes while the court of law announces it. Because if the public prosecutor could prosecute such a person before rendering judgment of fraudulent or culpable bankruptcy, there were no need for request of the court of law. Also in the Articles 541 and 542 and 549 of the above-mentioned law, it has been inserted that the person is announced as fraudulent or culpable bankrupt and he is not convicted that it is referred to announcement of bankruptcy judgment of the merchant, penal court has right of investigation. It is interfered from Articles 670 and 671 of the Islamic Punishment Law too. Therefore if in the beginning the said crimes are set forth in the penal authority, from among the above majority two opinions were mentioned. The first opinion, the penal authority can take measure by issuance of writ of litispendencia and the second opinion, writ of prosecution prohibition is issued.      

306- Which authority is competent for investigation of the juvenile crimes subject of Note 1 of Article 20 of Amendment Law for Law of Establishment of Public and Revolution Courts approved in 2002?

Opinion of unanimity of votes of members of the current commission in the session dated May 27, 2004 (Khordad 7, 1383)

With respect to Note of Article 220 of Criminal Procedure, if mature persons less than 18 years commit one of the crimes subjects of Note 1 of Article 20 of Law for Establishment of Public and Revolution Courts approved in 2002, juvenile court is competent to investigate, because this court is convened due to the accused person and Note 3 of Article 3 of the recent law has stipulated direct plan of juvenile crimes in the juvenile courts. Also precedent verdict No. 651 dated Oct. 24, 2000 of the Supreme Court regarding the fact that “ juvenile court is competent for investigation of the committed crimes of drug smuggling of the persons aged less than 18” confirms this inference, while it is inferred from precedent verdict No. 664 dated Jan. 20, 2004 of the Supreme Court that competence of the special authorities remain in force.

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Educational System in Australia

Pre-University Studies

In all the Australian schools, education includes three stages of (preschool), (Primary) and (Secondary).

In case of successful completion of the 12^th year of high school or college, the students receive educational certificate of 12^th year or tertiary entrance statement.
 

University Studies

Condition for admission to university is based on grades of entrance certificate to higher education (TES) and evaluation method is different in each state. To admit other states universities, (TES) can be used.

Australian universities are independent and issue certificate independently. In 1988, some of the universities and colleges were merged and established the present formation in the name of Unified National System (UNS) of universities, inclusive of 39 universities. There are 49 other colleges throughout the Australia which can issue certificates up to Master’s Degree regarding state laws.

In 1990, education ministers council of estates and different territories of Australia introduced educational evaluation unified system under title of RATE. In 1995 another replaced system, under title of AQF was introduced which is supposed to be RATE up to the end of 1995.

Basis for presentation of these evaluation systems, is preparing national and comprehensive framework for evaluation of academic certificates in Australia after compulsory study course (15 years old or 10^th year). Regarding AQF evaluation system, certificate for high school completion is called (Senior Secondary Certificate of Education)

Academic Courses

1.        Associated Diploma (granted with two years study and work under cover of TAFE vocational courses)

2.        Diploma (granted with three years study after high school diploma and work under cover of TAFE vocational courses)

3.        Bachelor (granted with at least three or four years after high school diploma)

4.        Post Graduate Certificate (PGC) (a 1.5- year course after bachelor’s degree)

5.        Post Graduate Diploma (PGD) (a 2.5-year course after bachelor’s degree)

6.        Bachelor Honors Degree (at least a 4-5 year course after high school diploma, the students of this course can begin the Ph.D without passing Master’s Degree)

7.        Master (to enter this course, no exam. is taken, but regarding the Bachelor’s degree and the references, admission is issued. Length of this course is dependent to length of bachelor’s degree and two years full-time study after three year bachelor’s course is necessary, of course in some of the fields, the Master’s Degree lasts up to three years.

8.        Ph.D is usually a research course and during this research, a new subject in the relevant field shall be presented. Of course in some of universities passing a Qualifying course is necessary for beginning of Ph.D. course and then research is began which is at least three years.          

Manner of Evaluation of the Academic Certificates

1.        Diploma

2.        Bachelor’s Degree

3.        Post Graduate Certificate (PGC)/Post Graduate Diploma (PGD)

4.        Master’s Degree

5.        Ph.D.

The above items were explained.

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Writing Criticism of One Verdict

Mohammadreza Khosravi

In this part, a verdict has been inserted and 13 cases have been mentioned about it:

Three of them are as follows:

1.        In introducing complainant and defendant, negligence has been observed also in the preface of the verdict which is issued as abstract of record, name and surname of the complainant and defendant are not seen. If it is supposed a verdict is published in the newspaper, the accused shall be introduced so that the name similarity does not befall the others.

2.        “Breach of trust regarding a Pride” has no meaning because finally the car is subject of crime not its driver, so it was better that it was written “subject of Pride” or “about a pride” or something like them.

3.        It is expected that the judicial colleagues and any other writer who write a text, review his writing severely as well as tolerantly and then after applying proper editions they sign and distribute it.

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Two Applicable Points

1.        Losing Profits and An Actual Loss

2.        Interference of Punishment (having maximum and minimum limits) and Deterrent Penalties 

It has been inserted in the law that the actual loss cannot be demanded. The meaning of Actual Loss is claim for probable loss. Of course it is different from losing profits. If someone causes the legal profits to be lost he is guarantor and is bond to pay the expenses, which can be claimed. As some people consider these two titles similarly, in this case some examples have been inserted.

Other subject is about punishment (having maximum and minimum limits) and deterrent penalties. In the public and revolution courts procedural law, it has been mentioned “penal prescription is only applied for the deterrent penalties.”

Whereas the legislator has not explained the separation and criterion of judgment between punishment (having maximum and minimum limits) and deterrent and in most penalties, these two cases have not been inserted clearly, so the writer in his article sets forth the difference of these two.          

Dr. Mohammad Amini

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Tehran Revolutionary Prosecutor’s Office

In this part, Revolutionary Prosecutor’s Office of Tehran is introduced. The head, interrogators and assistants to the public prosecutor general have been interviewed about different subjects related to competence of the said prosecutor’s office.

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Foreign

Translated by Mohammad Hassan Ashtiani, Head of Department for Research & Investigation of Administrative Justice Court       

First Part

In this part, following subjects are mentioned:

§          Historical survey of French governmental council

§          Principle and origin of governmental council

§          Consuls and imperator council 

§          Governmental council in the third republic government

§          Governmental council of France from the year of 1945

§          Governmental council in royal palace

§          Cardinal palace

§          Governmental council “Administrative Supreme Court”

§          France judicial administrative system organization

§          Administrative courts “of first instance”

§          Administrative courts of appeals

§          Governmental council as first and last stages of complaining against an injustice

§          Governmental council as court of appeals

§          Governmental council as administrative supreme court

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Historical

This is a memory of public prosecutor of penal court: “a member of account department of economic part of Ministry of Finance wrote a letter and sent it, in which it was inserted that his wife and two of his three children had suffered from typhus and he had not been successful to take loan from head of account department, inevitably he had forged the head’s signature to Ministry of Finance fund and had taken loan. His wife and one of his children had died and then he had suffered pain (from conscience)…

The public prosecutor became upset and decided to convict him through law but moral and human rules made him to help the man. So the money was returned to the fund and an amount of money was given to him and the man was requested to care his treatments more….

Then the public prosecutor quitted his occupation and was elected as Director-General of State Inspectorate General Organization. At the time of farewell ceremonies he told to his colleagues:  As you execute law regulations, do not ignore your call of conscience. Judge is not a machine to just execute the law regulations and he may always pay attention to the status and records of the accused in performance of his duties.

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Report 2

Mr. Azmayesh, Ph.D., the outstanding professor of criminal law appeared in specialized seminar of 38^th course of judges’ education in justice administration of Tehran province, answered 10 questions. The questions were about breach of trust, culpable bankruptcy, fraudulent bankruptcy, prescription, and immovable transfer. The details were mentioned.