Editor in Chief’s Note

Editor in Chief in this issue sets forth importance of judicial precedent. Also he mentions importance of the judicial decisions and the necessity that the laws shall be affected by the judicial precedent. Publication of judicial verdicts and decisions and access to them will cause the laws to be drawn up regarding practical facts. 

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A Selection of Latest Legal Approvals

·          Allocation of a certain account by Registration of Deeds for collection of state incomes is law guarantor.

·          Precedent verdict No. 668 of General Board of the High Court regarding legal capacity of the persons aged less than full 18 for filing a legal suit.

·          Permit for establishment of non-governmental banks approved in 2000 and Article 98 of Law for Third Plan, which sign on this affair, does not mean change in nature of governmental banks and their change to the non-governmental ones.

·          Verdict No. 233 of General Board of Administrative Justice Court regarding omission of Notes 3 and 4 of Clause (V) of Section 2-2 of guide booklet of graduate studies entrance examination of the year 2004.

·          Cancellation of limitation of continuation of studies of holders of Hwzeh educational certificates in the universities.

·          Whatever inferred from Article 93 of Taxes Law and its note is that if agent (bailee investor or investor) is legal entity, income resulted from its activities is not subject to regulations of section of occupation income tax. 

·          Precedent verdict No. 669 dated Oct. 12, 2004 of General Board of the High Court about determination of competence of investigating court of accusation of misdemeanants of SIBA bad check drawing

·          Verdict No. 354, 353, 352 of General Board of Administrative Justice Court regarding cancellation of circular letter No. 1/34/4541 dated May 17, 2004 of State Organization for Registration of Deeds and Real Estates

·          Law for man smuggling control

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Disciplinary Warnings         

4 times acceptance of rehearing of smuggling case in one of the divisions of The High Court and disciplinary violations inserted in judgment No. 111 to 115 of branch … of the Judges’ Disciplinary High Court

Subject of investigation: bills of indictment No. … dated Oct. 6, 2003 of Judges’ Disciplinary Prosecutor’s Office concerning announcement of violation of Mr…….,chief justice of branch … of Mashhad Revolutionary Court, Mr. …,judge of Mashhad Revolutionary Court, Mr. …, chief justice of division … of The High Court, Mr. …, deputy member of The High Court and Mr. … chief justice of branch … of Tehran Revolutionary Court

Then Procedure has been mentioned in details.    

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Justice In Islam

Hojjatoleslam Valmoslemin Abbasali Alizadeh

“Doctrine of Meysour” is one of the jural rules that the writer in the previous part set forth the elements of the said rule. Mentioning three traditions from Hazrate Mohammad (P.B.U.H.) and Hazrate Ali (P.B.U.H.) were of the reasons of the said rule. There is a tradition of Hazrate Mohammad that is “Whenever I order you, obey it as much as you can.” In this issue, the writer analyzes this tradition.

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One Vote, One Experience

Judgment of branch 35 of Court of Appeals: Investigation of complaints of the governmental organizations is also under competence of Administrative Justice Court. Please pay attention to the following verdicts in this regard:

1-       Judgment No. 1176 dated Nov. 2, 2003, drawn up by branch 4 of Shahr-e-Ray Public Court

2-       Judgment No. 193 dated May 16, 2004, drawn up by branch 35 of Court of Appeals of Tehran Province 

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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:

307- Can the tenant who is owner of the key money and his rented relation is subject to landlord and tenant legal regulations of the year 1977 lease the object of lease to the other person (without transfer of key money)? In case of conclusion of lease with the said person, if breach of lease deed conditions is occurred, does the first tenant have right of cancellation of lease and vacating of it? In case term of the recent lease deed is finished, can he request for vacating on the strength of regulations of tenant and landlord law of the year 1997? 

Opinion of unanimity of votes of members of the current commission in the session dated June 24, 2004 (Tir 4, 1383)

According to clause 2 of Article 14 of tenant and landlord relations law of the year 1977, in case of transfer of the object of lease to the other, the landlord can merely request rendering of lease cancellation or eviction judgment from the court, so if the first tenant lease the object of lease to the other person without transfer right, this action may not cancel the lease deed but merely cancellation and eviction right is made for the landlord and up to the time the landlord does not use this right as per the relativity principle of the contracts, lease deed between the first tenant (that the term is his lease is not valid with the object of lease owner) and the second tenant is valid. According to the question, as transfer is not performed completely and the key money is still at the possession of the tenant, if the second tenant breaches the prescribed conditions in lease, the first tenant can cancel the lease deed and in case of expiry of the deed term has right of vacating as per law of the year 1997. 

308- Whereas verification branches of the High Court in execution of Article 18 of Law for establishment of public and revolutionary courts make different decisions, in some cases reverse final judgment and investigate directly and in the other similar cases, reverse final judgment and refer investigation and rendering new judgment to the rendering branch of final judgment and sometimes act contrary to the above cases, are these measures of the verification branches according to the legal rules?

Opinion of majority of votes of the members of the current commission in the session dated June 24, 2004 (Tir 4, 1383)

Although the certain article(s) was (were) not been anticipated concerning manner of investigation of verification branches in the criminal and civil procedure code of the years 1999 and 2000, but law for establishment of public and revolutionary courts approved in 2002 and by-law related to the said law, have referred manner of investigation in the verification branches to the criminal and civil procedure code of the mentioned years. So investigation of verification branches of the High Court shall be performed using revision regulations of the above mentioned laws that according to the said regulation and explicitness of Article 18 of law for establishment of public and revolutionary courts approved in 2002, if verification branches establish obvious violation in final judgment, they shall reverse the judgment and render appropriate judgment, therefore they can not present the case for investigation to the authorities concerned by reversal of the judgment or receiving the judgment as writ but considering the dignity of the High Court which is authority for reversal and confirmation and regarding the fact that verification branches are branches of the said court, these branches can present the writs which need the substantive investigation after reversal, to the courts of first instance on the strength of revision regulations of criminal and civil procedure codes of the years 1999 and 2000, such as writ of cancellation of plaint, writ of non-suit, writ of incompetence etc. In this case court of first instance is entitled to investigate.

309- Which court is the competent court for investigation of dispute between interrogator and public prosecutor subject of clause T of Article 3 of law for establishment of public and revolutionary courts approved in 2002?

Opinion of majority of votes of the members of the current commission in the session dated July 29, 2004 (Mordad 8, 1383)

Although legislator contented himself merely with the expression of “Court” regarding competent authority of dispute settlement between interrogator and public prosecutor in the recent part of clause “T” of Article 3 of law for establishment of public and revolutionary courts approved in 2002 and did not specify which court he meant but regarding the fact that the legislator specified the area public or revolutionary court as the authority for dispute settlement between interrogator and public prosecutor regarding issuance or non-issuance of temporary detention writ in the other clauses of the said article such as clause “H” of the said article even if investigation of accusation is within the scope of powers of penal court of the province therefore it is concluded that there is no difference between these cases and case of clause “T” in cas4 of dispute between interrogator and public prosecutor regarding redemption or non-redemption of detention writ and authority for dispute settlement. In this case penal court will be competent authority for dispute settlement between interrogator and public prosecutor too even though investigation of the case is within scope of powers of penal court of the province.  

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Educational System in Germany

In this part, the writer set forth the following:

Pre-University Studies

University Studies

Academic Courses

Manner of Evaluation of the Academic Certificates

Introducing Universities and Higher Educational Centers in Germany

A)      Universities and Higher Educational Centers (Distinguished)

B)       Universities and Governmental Technical Higher Educational Centers confirmed by German State. 

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Writing Criticism of One Verdict

Mohammadreza Khosravi

As you know in each issue of the magazine, one verdict of the justice administration courts has been studied so that the judicial colleagues acquire a new viewpoint regarding writing in their judicial activity plan. In this part, a verdict has been inserted too and its grammatical problems have been mentioned. Some of them are as follows:

1.        Plural third person verb shall not be used for singular third person subject.

2.        Female adjective shall not be used for female name. (In Persian, we do not have this rule.)

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A Research About Loas (Doubt) and Ghasameh (Compurgation) and Woman Judgment (and Opinion of Moghaddas-e-Ardebili)

This article was written by Mr. Marashi. He set forth one of the reasons of proving murder and crimes which included in our laws after the Islamic Revolution: Loas (Doubt) and Ghasameh (Compurgation). Meaning of Loas (Doubt) is that the judge doubts about type of murder by person(s). In this case, the judgment can be passed by swearing of heirs of the slain person or his relatives.

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Article

Lecture of Mr. Dr. Azmayesh

Prepared by: Maryam Kazemi

Subject: Breach of Trust

Second Part

This is the second part of lecture of Mr. Azmayesh among the judges in 41^st course of judges in service training. The first part of this lecture published in the previous issue. In this part, Mr. Azmayesh answered the colleagues’ questions regarding breach of trust, prescription and fraudulent and simple bankruptcy.

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Supervision Public & Revolutionary Prosecutor’s Office of Dist. 25

This judicial unit is the unique legal authority that undertakes supervision as well as investigation of the legal and penal issues regarding minors, orphans and the incapacitated in the capital.

This prosecutor’s office is located in a 6-storey at the address of Northern Iranshahr Ave., Karimkhan Ave. and geographically covers all the 22 Tehran Municipality districts.

This prosecutor’s office has competence of investigation of the legal issues with relevance of probate matters.

At present, 3 public and legal courts and Unit of Judicial Assistance and Guidance perform the duties in the cases as per the approved duties description.

This prosecutor’s office has totally 135 personnel, 30 if them are judicial personnel and 92 of them are administrative personnel and the other 13 are serving personnel.

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Foreign

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

Last Part

In this part, following subjects are mentioned:

§          Procedural law of governmental council of France

§          Disputes Court

§          State adviser of governmental council

§          Consulting organization

§          Section

§          General meeting or board

§          Standing committee

§          Submitting petition to the France governmental council

§          Requests for consultation

§          State legislation

§          Council consulting domain

§          Report and research section

§          Membership in governmental council

§          Accepting member

§          Work procedure

§          Nature of work of governmental council members

§          A group with prestige and credibility

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Historical

An Attorney’s Memories

Written by: Adib Razavi

This part is about memories of an attorney; that is “at the beginning of my attorneyship in Yazd, I empowered by a butcher whom his inherited big garden planted with trees had been appropriated by an influential person and had been sold to a cooker. After research I found that he is right. I began my work and filed a claim in the court. Finally the defendant was condemned and the execution writ regarding quitting and delivery of Hassanabad garden was issued against defendant but …     

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Commission

Point 1- Multiplicity of issuance of bill of indictment

Point 2- In case of necessity and expedience, public prosecutor can refer the case to the other interrogator.

Point 3- If public prosecutor accepts statement of refusal, instead of him, one of his deputies will give opinion regarding final order of the assistant to the public prosecutor general.

Point 4- Crimes subject of Note 3 of Article 3, amended

Point 5- In the current laws, there is no public prosecutor of the province or his duties.

Point 6- Announcement of cases of losing check to the bank merely has announcement aspect.

Point 7- In crimes subject to amended Note 3 dated Oct. 19, 2002 of Law for Establishment of Public and Revolutionary Courts, judges of the public prosecutor’s office can merely order so that the case is referred to the relevant court judge.

Point 8- Confession in the public prosecutor’s office

Point 9- The complainant cannot be called up. Opinion No. 4998/7 dated Oct. 3, 2004

Point 10- Public prosecutor’s Office of center of province does not have right of interference in the affairs of penal courts of the cities and districts.

Point 11- Before issuance of writ of incompetence, there is no need for announcement of proceedings termination.

Point 12- The accused multiple accusations

Point 13- Crime subject of Article 638 of Islamic Penal Code shall primarily be investigated in the public prosecutor’s office.