ghazavat -
No.29 - Feb May , 2005
Editor in Chief’s NoteIn this issue, due to end of the year of 1383 (2004) instead of editor in chief’s note, this part allocates to the honored Head of Justice Administration of Tehran so that as the previous years, he sets forth his spring message of the year 1384 (2005) to the colleague. ____________________________________________________________________
A Selection of Latest Legal Approvals Precedent verdict No. 672 dated Dec. 21, 2004 of General Board of Supreme Court concerning dispossession ____________________________________________________________________Disciplinary Warnings Judgment No. 148 dated July 5, 2004, drawn up by branch … of Judges’ Disciplinary High Court: Non-acquiring opinion of expert regarding the fact that the plaintiff has not determined the price of the relief precisely and requested for expertise, is disciplinary violation. Judgment No. 140 to 142 dated July 4, 2004, drawn up by branch … of Judges’ Disciplinary High Court: The wife’s Eddeh (legal period of abstention of a widow or divorcee before her remarriage), which has not been determined in the primitive judgment, and Court of Appeals has not considered to this affair too, is proved and certain violation. Judgment No. 154 to 155 dated June 25, 2004, drawn up by branch … of Judges’ Disciplinary High Court: Degradation of one judicial grade as disciplinary punishment for numerous violations inserted in the above-mentioned judgment ____________________________________________________________________ Justice In Islam Hojjatoleslam Valmoslemin Abbasali Alizadeh The other reason that the great spiritual leaders mentions for this doctrine is Esteshab doctrine (the existing state of things at any given date), that is, the liable person shall perform an obligation but can not complete some parts of it, so he has doubt that he should do the other parts or not? For example: saying prayers: the liable person shall say prayers that have all the conditions and parts but maybe in a situation he can not stand to say prayers, is sitting prayers essential to him? Or he is liable to perform an affair in the certain time but for some reasons, he misses the time, is it essential to perform the affair after passing the certain time or not? ____________________________________________________________________ One Vote, One Experience“Possession is not merely means physically touch but transferring power wire above the buildings is considered more than possession.” - Judgment No. 999 dated July 6, 2003, drawn up by branch No. 151 of Tehran Court of Law ____________________________________________________________________ Around the Table The following questions were discussed in the around table, the commission majority or unanimity of votes are as follows: 310- Is arbitration contracts, subject of Note under Article 458 of Procedural Law of Public and Revolutionary Courts in the civil affairs, only for Principal 139 of Constitutional Law or is it including of the private contracts too? Opinion of unanimity of votes of members of the current commission in the session dated July 29, 2004 (Mordad 8, 1383) First of all: By conclusion of contract of arbitration for each party to the contract, the acquired right is created which seems that change in legal regulations cannot negate the acquired rights of each party to the contract and besides as per Article 4 of Civil Law, “Effect of law is regarding the future and law has no effect regarding its previous unless in the law itself, special regulations have been adopted concerning this subject.” Second: Article 458, has foreseen and stated fundamentals related to arbitration and has not known it specially for Principal 139 of Constitutional Law, also from the clause of “in compliance with Principal 139 of the Constitutional Law” inserted in the said note, it is inferred that this clause is only applied for the governmental arbitration contracts and explains that as governmental arbitration contracts have been concluded before approval of Principal 139 of the Constitutional Law, while they are subject to regulations of the contract drawing up time rather essentially contents of Principal 139 of the Constitutional Law shall be observed regarding these contracts as a result the said clause cannot cause allocation of Note and its exclusion only for the governmental contracts. 311- Regarding the subject of Article 355 of Civil Law, in case the customer and the seller, respectively concerning less or more property measurement, object of transaction, do not want to use their cancellation right, and do not have mutual consent, is claim of difference of the sum hearable or not according to the case? Opinion of unanimity of votes of members of the current commission in the session dated July 29, 2004 (Mordad 8, 1383) Regarding the contents of Article 355 of Civil Law, which is decided that a property is sold in condition of having a certain measurement and accepted by the parties to the transaction, whereas in performance of such a transaction, the price elements are not placed against the object of sale elements rather total price of transaction is placed against all the sold property. So if the sold property measurement is more or less only there is cancellation right regarding option of violation of the above-mentioned article or mutual consent about exclusive or deficiency. As a result, claim for difference cannot be heard as per the said Article. 312- Does criminal prosecution of fraudulent bankrupt or culpable bankrupt, requires its type by the court of law in bankruptcy judgment? Opinion of majority of votes of the members of the current commission in the session dated July 29, 2004 (Mordad 8, 1383) According to majority opinion, investigation of the said crimes in the penal courts needs issuance of bankruptcy judgment in the court of law. In the meantime, court of law while announcing bankruptcy, shall specify its type so that penal court can investigate it. 313- Can the prisons accept the individuals introduced through Dispute Settlement Councils? Opinion of majority of votes of the members of the current commission in the session dated July 29, 2004 (Mordad 8, 1383) With respect to Principal of Necessity of Penal Proceedings, charge(s) of everyone shall be investigated in the competent judicial authorities, even though it causes that person conviction for a paltry sum as cash fine. (Principal 36 of the Constitutional Law of the Islamic Republic of Iran: Judgment for punishment and its execution shall be only through the competent court and by virtue of law.) As goal of establishment of dispute settlement council as per article 189 of Law for third plan of development, is local settlement of disputes and the affairs which do not have judicial nature or their judicial nature has less complication, so as first of all: dispute settlement council cannot be named court, second: from the above legal phrases, competence of this council in investigation of penal affairs is not inferred therefore it shall be said that the answer to the question is negative. ____________________________________________________________________Educational System in AmericaIn this part, the writer set forth the following:Pre-University StudiesUniversity StudiesAcademic CoursesManner of Evaluation of the Academic CertificatesIntroducing Universities and Higher Educational Centers in AmericaA) Universities and Higher Educational Centers, grade 1 (Distinguished) B) Universities and Higher Educational Centers, grade 2 (Good) Although certificates of universities of grade 2 can be evaluated but it is recommended that the students study in the universities of grade 1 (distinguished) for Master and PhD courses. C) Universities and Higher Educational Centers, grade 3 (Fair), which were accredited by Ministry of Culture & Welfare of America, but their names are not in the list of grade 1 and grade 2, but they are evaluated in the level of Bachelor. Table for Evaluation Quality of Academic Certificates of Universities of America____________________________________________________________________ Writing Criticism of One Verdict Mohammadreza Khosravi The writer in this issue, studies one verdict and sets forth its problem: One of the problems is as follows: - To introduce the complainant and the defendant, their full particulars shall be mentioned especially when a verdict is to be published in the newspaper; the accused should be introduced in the manner that his particulars do not befall the others regarding the name and surname similarity. ____________________________________________________________________ Conflict of Affairs of Islamic Government & Individual Rights Ayatollah Mohammad Momen Q: If the Islamic Government wants to do something to the advantage of the nation and this affair of the government makes conflict with rights of natural or legal entities, whether financial or non-financial, is these individuals satisfaction necessary or not so that the mentioned affair is allowable? A: Although in the previous speech it has been evident that Authority extent is not limited to decision making about interests and advantages of the nation in the public affairs, so we emphasize more on this claim and say that: Authority extent is more expanded than limits of decision making about the public interests, because supervisor takes care of person under his supervision so that he may not deviate from the correct way to the place that cause him meanness and damage. Whereas, the God’s judgments are ratified so that help the people and lead them to the good ways, this is of the duties of the Islamic nation Leader so that he safeguards the people’s rights and prepares the society in the manner that the nation lead to perform these judgments, the judgments which are a guarantee for this world and the next prosperity. ____________________________________________________________________ ArticleStudy of Article 10 of Compulsory Insurance Law of Torts of Owners of Land Motor Vehicles Against Third PartyPrepared by: Abdollah Khodabakhshi – Assistant to the Public Prosecutor General of Public Prosecutor’s Office of District 6 of TehranFirst PartImportance of governing laws on the car accidents Every day card accidents happen and have a greater role of other events. It can be said that these events are the most important and common torts which allocate the courts time to themselves at least in the recent half-century. The governing principles on this events have been changed and are studying in some of the legal systems such as Common Law, as one of the harmful measures (tort) in an independence form and the governing laws on these harmful measures (law of tort) do not include them. In France, by virtue of law ratified on Jan. 5, 1985, the independence and new principles have been compiled for these events, which can be compared by the Iranian legislator and their positive notes can be accepted. Andre Tunc, one of the popular writers in the field of tort states: “such as some of the writers, I believe that traditional domain (tort) and law of torts shall be divided into two parts of tort law and accident law, the first type shall talk about the deliberate conducts and the second type shall talk about the happenings, the new law should divide the tort from the happenings. The section of happenings includes work happenings, car accidents, and medical happenings. One of the most important changes in this regard is interference and appearance of the insurance institution. By interference of insurance, in the car accidents, the main purpose is damage compensation and the insurer is the main personality in the external achievement of this affair as stated by Karboniye, the French writer. Appearing the insurance, Law of torts have changed very much inclusive of decline of theory of fault, omission of some of elements of tort, encouragement of the judges to judgment rendering for the high amounts of damage, full interpretation of law in the advantage of whom the loss incurred for, increase of the claims and appearance of the important claim in the advanced systems of the tort in the name of “direct claim of whom the loss incurred against the insurer which is not considered by the judicial precedent. The other important effects are creation of “complementary projects of tort covering” which has the duty of damage compensation of the ones whom the loss incurred for along with institution of insurance of tort. ____________________________________________________________________ Cyber Crimes Written & Prepared by Mohammad Hassan Deziani First Part Following to holding the in service educational classes of judges, from Mehr 1383 (Sept. 22 to Oct. 21, 2003), two course/educational titles were included in these courses as follows: - Internet crimes (or in a more proper interpretation: cyber crimes = crimes against data technology) for the judges of penal courts - Internet claims (or in a more proper interpretation: cyber law = data technology law) for the judges of courts of law In the cyber crimes course, these subjects are set forth preliminarily and in about 5 sessions: 1. Generalities including periods of using computer and penal and legal issues resulted from each period, new fields of law and cyber crimes and …, 2. Nature of cyber crimes, 3 & 4. Summary description and classification of cyber crimes groups, 5. Procedural law of cyber crimes and cyber jursidicition Also in the course of cyber law (Internet claims in the said interpretation in the course plan), these subjects are set forth in the limits of 5 course sessions: 1- Generalities (common with the penal course), 2 & 3- Informative contracts, 4- Civil responsibility in the digital environment, 5- Mental ownership in the cyber space As the class topics are very general and in the listing form statement of the legal problems and issues, therefore we are about to mention some of the topics in details in Ghezavat monthly so that the judges, jurist consults, attorneys and students of law can refer to the detailed studies regarding their interests. ____________________________________________________________________ Historical This part is about Mr. Mohammad Vojdani, public prosecutor general at the time of Reza Khan. He was preserver of the nation laws and rights. This part is a real story about time of the women unveiling and defense of Mr. Vojdani from a veiled woman. ____________________________________________________________________ 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. |