Editor in Chief"s Note

Editor in chief in this issue, sets forth the compulsion of attorneyship announced recently by the honroable Chief of the joudiciary through circular letter. Having mentioned a record of attorneyship in Iran, he inserts the executive ambiguities of this worthy movement.

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Disciplinary Warnings         

q       Judgment No. 420-422 dated Nov. 30, 2004, drawn up by Branch … of the Judges Disciplinary High Court

- One of the disciplinary violations of the judges inserted in the said judgment is rendering judgment of condemnation of the accused for 6 months of imprisonment on the strength of brokers law approved 1938 which is unjustified by virtue of governmental punishment law approved 1997 and is contrary to the regulations of Article 214 of Criminal Procedure.    

q       Judgment No. 382 and 383 dated Nov. 20, 2004, drawn up by Branch ………… of Judges Disciplinary High Court

-Disciplinary violation due to non-comment regarding the subjects of the complaint of the complainant and ..

Judges Disciplinary Prosecutor’s Office according to bills of indictment No. … issued in the disciplinary case classified No………. announced Mr. …… and Mr. ……….., assistants to the public prosecutor general of Eslamshahr Public and Revolution Prosecutor’s Office, offenders in investigation of classified file No. …… and on the strength of top of Article 20 of by-law concerning recognition of types of disciplinary violations of the judges, requested their disciplinary punishment.  

q       By virtue of Judgment No. 54 and 55 dated Apr. 16, 2005, drawn up by Branch… of Judges Disciplinary High Court, delivery of the child in the said manner is a legal affair so prosecution and issuance of writ of attachment and condemnation of the defendants on the strength of Article 632 of Islamic Penal Code are contrary to the said article. 

q       Disciplinary violations in the Judgment No. 419 dated Nov. 28, 2004, drawn up by Branch … of Judges Disciplinary High Court

- Rendering judgment concerning cross action against tenant about eviction of business location without agreement or attaining personal need and …leaving unsaid of the main action (brought by the tenant about transfer of interests)

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One Vote, One Experience

Conditions for fraud achievement in the following Verdicts:

1.        Verdict No. 2098-2099 dated Nov. 24, 2001, drawn up by Branch No. 807 of Tehran Public Court:

2.        Verdict No. 47 dated Apr. 16, 2003, drawn up by Branch No. 12 of Tehran Province Court of Appeals

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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:

320- With respect to Clause 12 of the inserted conditions in the marriage certificates: “If the husband marries another wife without consent of his first wife or does not treat fairly toward his wives”:

A- Does mere marrying the second wife without consent of the first wife make divorce right for the first wife or does divorce right cancel if due to the fact that the first wife is shrew, the court permits for the repeated marriage?

B- Does marrying the second wife mean permanent wife or may it mean temporary wife?

Opinion of majority of votes of the members of the current commission in the session dated Dec. 23, 2004

A-A: As Clause 12 of marriage collateral conditions inserted in marriage certificate is an absolute condition so only marrying second wife, even if it is due to shrewishness of the first wife and by permit of the court, does not create divorce right for the first wife. The best legal ground proving for this clause is Article 1119 of Civil Law. In the meantime, opinion of Imam Khomeini in question 30 of book of judicial rules leads to this condition. Also the emphasized verdict No. 16 dated Dec. 30, 2003 of General Board of Supreme Court (civil divisions) which is “with respect to the contents of the marriage certificate, delegation of attorney by the husband to the wife is absolute therefore and concerning the repeated marriage of the husband without permit of the wife and proving breach of condition, the wife has right to refer the court and divorces herself.” confirms this opinion. 

B-A: Temporary marriage is marriage, commonly and legally and in jural fundamentals, the wife includes permanent and temporary so marriage includes permanent and temporary, if in each of the two states, the man marries, the first wife has rival wife and confronts mental and spiritual problem therefore as soon as finding such a rival, the condition for attorneyship is achieved and the first wife can use the said right.

321- In case the rendered judgments concerning Articles 447 and 464 of Islamic Penal Code are in execution stage after finality, and the judgment debtor claims that the injured party wisdom or sense of smell are correct again, what is the obligation of judgments execution judge concerning this claim?   

Opinion of majority of votes of the members of the current commission in the session dated Dec. 23, 2004

Judgment execution judge has no obligation except execution of the final judgment but concerning the question, the said judge shall announce the judgment debtor claim to the court in which the judgment is executed so that the court rendered complementary judgment after its study, although the principal is the judge recess, but this principle is allocated in the other places such as investigation of judgment by default and objection by a third party and … therefore in these cases, the recess rule of the judge is not governing and the legislator permits to the judgment rendering court for repeated investigation after rendering judgment. Regarding the question, the mentioned court shall perform the necessary investigations concerning claim of the judgment debtor as per the contents of articles 448 and 464 of Islamic Penal Code and takes action by rendering the complementary judgment and its notification to the parties. It is evident that the said judgment is an independent judicial judgment and can be revised in compliance with the legal regulations.

322- Do claims of incorrectness of decisions of the medical commissions have penal aspect or not?

Opinion of unanimity of votes of members of the current commission in the session dated Jan. 20, 2005

When a measure is a crime by nature, it is not claim but subject of question is claim that is claim of incorrectness of decisions of medical commissions. Now this claim can be investigated in the public prosecutor’s office or not? Yes, it can be investigated because the mere complaint is enough for the investigation and this is the explicit judgment of the law therefore the subject shall be investigated in the public prosecutor’s office. In case decision of the said commission is expressed intentionally and by bad intention of all the members, it is considered unreal as certificate and will be subject to articles of 539 and 540 of Islamic Penal Code.  

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Writing Criticism of One Verdict

Mohammadreza Khosravi

In this issue, the writer mentions another verdict and criticizes it. One of the most important issues he mentions in this criticism is that the judge shall obey law and he should not render the judgment with mere consideration to the poems, Decrees, traditions and Quran verses and then he relies on it without consideration to law.                    

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Article

What shall be paid by the misdemeanant as well as blood money

Ayatollah Mahmoud Hashemi Shahroudi

Second Part

To fixing the guarantee of treatment expenses, in the manner separate from blood money, inevitably two introductions shall be studied and proved:

First: Proving the fact that there is necessity for such a guarantee.

Second: We do not find from the traditions that the blood money and its legal alternative value is for all the things that the one who is damaged, request for it.  

For the first introduction, we can independently have reason for being guarantee for the medical expenses and by using other jural rules, the necessity of this guarantee can be proved. So we have two methods.

First way: In finding guarantee of treatment expenses separate from the reason, the other rule is not mediated in this result.

Second way: using some of the canonical rules, which is necessity of being guarantee and their equalization with the treatment expenses in our issue. These rules are:

-          Destruction Rule

-          Cause Rule

-          Detriment Rule

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Article

Alternative or Non-Judicial Methods of Dispute Resolution (ADR)

Yousef Darvishi Hoveyda

Assistant to the public prosecutor general of Sadeghiyeh public prosecutor’s office 

Alternative or non-judicial methods of dispute resolution briefly called (ADR) is applied to all the methods in which dispute resolution is occurred outside the court. In these methods interpreted as “private justice”, disputes are settled by the third party (ies) elected by the parties to the dispute as per investigation method and rule agreed by the parties to the dispute. Even though using unofficial methods of dispute settlement and arbitrator and arbitration and conciliation for disputes resolution even before formation of the governments and judicial organization is a common affair and has more record than official and court method of dispute settlement but using alternative methods of dispute resolution in the manner that has specific rules and regulations and is encouraged in the framework of the special institutes and considered as replacing of court and official method of dispute resolution and in general what we now in the name of ADR has become widely practiced for some decades (since decade 1970) and its selection as dispute resolution method has found more adherents day by day. Numerous advantages of using ADR made the governments, choosing policies and taking measures such as enacting and amendment of the laws and regulations and establishment of the relevant institutes, provide a sound situation for more circulation and usage of the alternative methods of dispute resolution. Various institutes have been provided in the ground of ADR (specially under title of arbitration institutes and center) which are active in the national and international level.               

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Foreign Part

Report of Japan Travel

Movement to decreasing appearance of judge in disputes settlement  

§          Brief Introducing Japan and JICA

§          Subjections of the Sessions

§          Main Title of the Course

§          Root of Japan Laws

§          Trial with Social Logic

§          Methods of Civil Dispute Settlement

§          Japan Legal Population

§          The Court Secretary is the Judge Assistant.

§          Quality of Judges Election

§          Duties of Head of Supreme Court

§          How much is the Judge Salary?

§          Court Costs

§          Supervision on Judge

§          Automation

§          Public Prosecutor’s Office Division

§          Quality of Election of Public Prosecutors

§          Assistant to the Public Prosecutor General

§          Quality of the Accused Detention

§          Competence for Prosecution

§          Interest Institution

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Commission

Point 71 - In case the bail is employee.

Point 72 – After rendering judgment in the Revolution Court and its finality, the case is returned to the location Public Prosecutor’s Office for execution of the penal judgment.

Point 73 - Final judgments of loss resulted from crime.

Point 74 – In the whip punishment crimes, principally there are no social deprivation.

Point 75 - Information Department is not considered as bailiff.

Point 76 – What its performance have been specified by the legislator as commission of law enforcement force, its execution does not need order of judicial authorities.

Point 77 – Judicial authorities have no obligation concerning prevention of constructional violations.   

Point 78 – Regarding bailiffs executing, there is no difference between commander of law enforcement force of the province and other ranks of command.

Point 79 – In preliminary investigations, mere appearance of the accused attorney is not enough.

Point 80 – Duty of the judges of the district court in the crimes subject to Article 5 of Law for Establishment of Public and Revolutionary Courts.

Point 81 – Duty of the district court judge in substitution of interrogator in the crimes within the competence of the province penal court.

Point 82 – The crimes within the competence of the revolutionary court committed in the district.

Point 83 – Measure of the court alternate judge in referring the murder case to the district court president is contrary to the text.

Point 84 – In the cases alternate judge takes measure in substitution of the public prosecutor, has all the duties and powers assigned to the public prosecutors according to the laws.  

Point 85 – One president and two alternate judges in the district court.

Point 86 – Alternate judge is substitute of the public prosecutor.

Point 87 – Single Article of prosecution prohibition permit.

Point 88 – Blood money from the public treasury. 

Point 89 – The reference performed without observance of law is not of the legal causes of the investigation beginning.

Point 90 – Confiscation of property, as punishment needs legal text.

Point 91 – the one, who is deputy of head of the province justice administration, by preserving that position, cannot undertake deputy position of head of public courts of the city of province center.

Point 92 – Administrative directorship and supervision of the public prosecutor’s office of the province center has been merely entrusted to the head of justice administration of the province. 

Point 93 – However, the subject investigating authority shall recognize “plausible excuse” from implausible one in the cases that there is no law.

Point 94 – Justice Administration judicial authorities, inclusive of public prosecutor’s office and court, have no investigation competence for objection.

Point 95 – Who is judgment debtor?

Point 96 – The guardian does not have right of free forgiving concerning the minor share.

Point 97 – Rehearing.

Point 98 – Difference between verification branches and divisions of the High Court.

Point 99 – Investigating authority of crimes of accessories to the crimes of subject to punishment of rape and buggery.  

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Special Report

This is the second part of the interview of Mr. Yavarzadeh. In this part, his valuable experiences, as the judge of the murder cases, have been set forth.

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Cyber Crimes                                    

Written by Mohammad Hassan Deziani

Forth Part

E-mail: Issues Analysis

1.        Penal Public Prosecutor’s office

A-      In the Stage of Preliminary Investigations

2.        Scientific Discovery

3.        International Issues

4.        Legal Points

A-      Informatic Contracts

B-       Digital Civil Liability

C-       Attorneyship & Delegation

D-       Digital/Electronic Positive Proof

E-       Electronic Banking & Trade

F-       Private International Law

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Executive Plan of the Year 2005

In this plan, the following were mentioned in details which we set forth in general:

-          Statements of The Honorable Leader of the Islamic Revolution at the beginning of the year 2005

-          General Judicial Policies Approved by Expediency Council

-           Repeated Appointment Order of Ayatollah Hashemi Shahroudi as Chief of the Judiciary for the other five-year period

-          Introduction

-          A- Quantitative and Qualitative Level Promotion of Investigation

-          B- Supervision on Good Execution of the Citizenship Rights

-          C- Quantitative and Qualitative Continuation and Strengthening of Dispute Settlement Councils

-          D- Welfare Measures

-          E- Miscellaneous

-          F- Plan Evaluation