Editor in Chief"s Note

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

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A Selection of Latest Legal Approvals

• Negligence and non-cooperation of the inspection and crime control supervisors are not of the prosecutable offenses.

• Agreement with transfer of the employee to the other place needs payment of transportation cost.

• Permit for abortion of retarded or deformed fetus before 4 months in case of the final diagnosis

• Cancellation of direction of state organization for civil status registration related to 9 years ago

• Articles of association of State National Foundation of the Elite

• Executive By-Law of Law for compulsory usage of helmet

• By-Law for settling of the streetwalker children

• Verdict No. 101 of General Board of Administrative Justice Court regarding cancellation of Article 32 of Executive By-Law of Law for Official Experts to the Justice Administration

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Disciplinary Warnings

• Judgment No. 74 dated May 10, 2005, drawn up by Branch É of Judges Disciplinary High Court:

- Repeated renewal of lease deeds of business locations, subject to Law of the year of 1977 (even if it has been renewed after approval of law of the year 1997) will not be subject to the recent law.

• Judgment No. 582 dated Feb. 28, 2005, drawn up by branch É of Judges Disciplinary High Court

- Issuance of writ of temporary detention concerning the inserted cases under Article 35 of Procedural Law of Public and Revolutionary Courts in the penal affairs such as Clause (H) of this article by observance of clauses of Article 32 of the said law is necessary. 

• Majority and minority opinion of the members of branch É of Judges Disciplinary High Court concerning violation or non-violation of the measures of defendant judges in the Verdict No. 138 to 140 dated May 16, 2005:

- Majority: Delivery of the accused person to the officers of the police office after issuance of writ of guardianship is not violation. Minority: it is violation.

• Disciplinary violation concerning issuance of non-commitment judgment of the defendant and Éas described in the Verdict No. 113 to 115 dated May 11, 2005, drawn up by branch É of Judges Disciplinary High Court...

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One Vote, One Experience

calculation of price concerning payment of difference of deduction of measurement of the land, object of transaction, in the following verdicts:

1. Verdict No. 897 dated Sept. 21, 2004, drawn up by branch É of the Tehran Public Court of Law, basis for daily price calculation is by opinion of the expert.

2. Verdict No. 455 dated June 21, 2005, drawn up by branchÉ of the Tehran Province Court of Appeals; calculation basis is price of transaction time. 

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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:

323- Is opinion of judge, in the position of investigation of objection of writ of non-prosecution, considered as causes of challenging of the proceedings and does the judge have right of repeated investigation of the subject or not?

The above question was omitted concerning precedent verdict No. 517 dated Feb. 7, 1989.    

324- If rape is accompanying the kidnapping, should the public prosecutorÕs office separate or investigate the subject and then send the case with bill of indictment to the province penal court? Opinion of majority of votes of the members of the current commission in the session dated Jan. 20, 2005 . Each of the mentioned misdemeanors in the question has certain elements, although rape was accompanying kidnapping but it cannot be considered as introduction to rape because committing each of these misdemeanors can be conceived without committing the other one and there not the same regarding punishment and investigation authority so according to the above cases and inserting the following evidences, it shall be said that the case should be divided: First of all: According to Note 3 of Article 3 of Law for Establishment of Public and Revolutionary Courts and Note 1 of Article 20 of the said Law, investigation of rape misdemeanor is within competence of the province penal court. Second: As per contents of Article 43 of Criminal Procedure Code and its Note and also by virtue of Note 3 of Article 3 of Law for Establishment of Public and Revolutionary Courts, the crimes inconsistent with public morals can be investigated by the court judge so the public prosecutorÕs office will not have investigation competence of the subject. Third: confession is valid before the judge and has no legal effect in the public prosecutorÕs office. Forth: As per Article 55 of Penal Procedure Code, investigation of the different crimes shall be in terms of the most important one, in the meantime, the punishment shall be executed very soon. So by division of the case, rape will be investigated in the province penal court and kidnapping after investigation in public prosecutorÕs office and issuance of bill of indictment will be sent to criminal public court for investigation.         

325- If the judicial authority issuing pawn appropriation verdict or obtaining amount of bail discovers his mistake, can he deviate it in any stage? In any case, how nullifying the mistaken verdict is possible? Opinion of majority of votes of the members of the current commission in the session dated Jan. 20, 2005.

If the judicial authority issuing verdict discovers his mistake, he can deviate as long as this verdict has not been objected because in case of objection, the subject shall be investigated in the court of appeals and cannot be deviated. In the meantime, quash of judgment of court of appeals is merely possible legally, for example: through Article 18 of Law for Establishment of Public and Revolutionary Courts.

326- With respect to Article 387 of Civil Law in which the word Òsubmission« has been inserted, anyhow in legal and jural subjects, Òrule of waste of the object of sale before its receipt« has been inserted, if the object of sale is received by the customer but it is not submitted, is Òrule of waste of the object of sale before its receipt« true or not? Opinion of unanimity of votes of members of the current commission in the session dated Feb. 24, 2005. With respect to the question, it shall be said that if the object of sale is received by the customer, its submission by the seller has no meaning and it cannot be said that the object of sale is not submitted because the lexical and legal meaning of the receipt is delivery of the object of sale by the customer (Article 367 of Civil Code)   

When the customer receives the object of sale, it means that he delivers it fully, so delivery of it by the seller to the customer has no sense. For this reason, the jurists and jurist consults believe that the word Òreceipt« is more comprehensive than the word Òsubmission«. In the meantime, common concept of Òreceipt« and Òsubmission« is that in both cases the object of sale is given to the possession of customer and the seller performs his legal obligation and has no liability.

327- If in the financial actions, determination of value of relief is not possible at the time of submission of application (subject of Clause 14 of Article 3 of Law for Collection of some of the government incomes and its use in the certain cases) and is calculated on account and before its determination by the court, the judgment is rendered, can the rendered judgment be revised? Opinion of unanimity of votes of members of the current commission in the session dated Feb. 24, 2005. In such a condition, as per Clause 14 of Article 3 of Law for Collection of some of the government incomes and its use in the certain cases, the court is liable to determine value of relief but concerning the question, apparently the court has not considered to this subject and the case has not caused rendering judgment. First, as the value of relief has been determined on account, it cannot be said that subject of question is subject to Clause 14 of Article 3 of the mentioned law which has prescribed the mere stamp cancellation for Rls. 2000, second: as the court has not undertaken its obligation concerning determination of the real value of the relief, if we do not consider the rendered judgment to be revised, right of one of the parties to the action may be wasted and that is the time that the judgment is rendered for plaintiff and right of revisionism of the defendant is negated so as opportunity of claim for legal expenses up to the stage of judgment execution is possible, we know the rendered judgment to be revised so that the right of the defendant concerning revisionism is reserved.

But if the court verdict is in the form of writ or it is inserted in the judgment that the plaintiff has no right, there is no need for stage of evaluation of relief and its real rate.   

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Writing Criticism of One Verdict

Mohammadreza Khosravi

In this issue, the writer replies to criticism of one of the readers of the magazine in the last issue. Having expressed his thanks, he confirms the criticism of the said reader.    

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Article

Ayatollah Mahmoud Hashemi Shahroudi

Last Part

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

In the last part of this article, the writer continues explanation of the previous issues and sets forth the fundamentals of payment of what shall be paid as well as blood money. At the end he concludes (three issues) as follows:

- If we cannot prove the guarantee of the treatment expenses by detriment rule and by the first title, we can prove it in absolute manner or in some of the cases by the second title and order of the Religious Leader, as in the other pecuniary punishments for some of the violations. Therefore it can be provided that if anyone harms the other even by mistake, he shall pay the treatment expenses based on the daily needs to the government and the government shall undertake the treatment.

- Is the misdemeanant guarantor for losses of the oppressed regarding his job? If criterion for the guarantee is known as destroying the other property, there is not such a thing in this issue, because no property has been proved for the other and he can obtain a property if there is such a harm. But if we know the criterion more expanded and consider any kind of property destroying, reason for being guarantor, it can be said that property destroying is true, especially about the one who has income.

- Are the legal expenses paid by the misdemeanant? It has been said that this issue does not merely exist in the crimes and this question shall be studied in any litigation that ÒDo the legal expenses undertake by the judgment debtor in the penal or civil petitions?« the answer shall be set forth in two parts: ÒShall the judgment debtor pay the legal expenses to the government and can the court collect it from it, not from the judgment creditor? This is a civil liability toward the government. Is the judgment debtor guarantor for the expenses which the judgment creditor pays for achieving his right? This is a liability toward the rightful person.  

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Article

Labor Proceedings in Objective Law

The writer in this issue studies three subjects:

First Subject: Methods of disputes settlement of the worker and the employer in the Labor Law of Iran. Second Subject: Specifications of labor proceedings in Labor Law of Iran

Third Subject: Proceedings of dispute settlement authorities in Labor Law of Iran

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Special Report

We are going to set forth the judicial directors successes in their responsibility area. Hereby while expressing gratitude for the performed measures, we introduce the successful creativities to the other colleagues. In this issue we have selected head of Karaj judicial area. The one whom has been appointed as head of Golestan Province Justice Administration due to his endeavors and the achieved successes. Undoubtedly this promotion of responsibility depends on these endeavors. 

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Commission

Point 94 - Justice Administration judicial authorities, inclusive of public prosecutorÕs 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 subject to punishment of rape and buggery

Point 100- The verification branch cannot legally refer the case for rendering the judgment to the rendering judgment authority after reversal of writ.       

Point 101- In the cases that the court takes measure based on the complainant objection regarding reversal of writ of non-prosecution issued by the public prosecutorÕs office, the public prosecutorÕs office is bound to obey the court opinion.

Point 102- Objection to the issued writs by the public prosecutorÕs office needs no payment of legal expenses.

Point 103 - Deputy of head of the judicial complex who does not have position of deputy of head of judicial area, cannot refer the cases to the branches of the public court.

Point 104 - Public prosecutor cannot directly investigate the case in absence of the interrogator unless in issuing writ of attachment and its acceptance.

Point 105 - Authority for dispute settlement between public prosecutorÕs office and the court, located in a judicial area, is the province court of appeals.

Point 106 - Taking attachment concerning the more important misdemeanor and bill of indictment, Public prosecutorÕs office sends the case to the competent authority and after investigation of the more important accusation, the necessary attachment concerning the other crime is taken and issuing bill of indictment, the case is sent to the competent investigation authority.

Point 107- Signature of the public prosecutor under the judgment is considered as notification.

Point 108 - Investigations are undertaken by the interrogator concerning the said crimes, whether they are within competence of the revolutionary courts or within the competence of the province penal courts.

Point 109- Participation of the public prosecutor or his representative in the court session is necessary.

Point 110- Purpose of abandonment of trial is abandonment of prosecution.

Point 111- Before receipt of the case by the court, there is no problem with deviation of the public prosecutor of the order suspending prosecution.

Point 112- There is no problem with change in the issued writ by the public prosecutor and the interrogator by agreement, before setting forth in the court.    

Point 113- Announcement of error is related to the public and revolutionary courts and is not related to the writs of the interrogator of the disciplinary public prosecutorÕs office.

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Legal Bill of Social Punishments

First Part

Studies shows that the present prisons are not sound policy for the criminals' correction and treatment and cycle of the prison crime commitment is usually repeated.

The main reasons of the prisonÕs inefficiency concerning the criminals correction and treatment can be summarized in the three subjects as followsÉÉ

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Historical

Labor Proceedings in Objective Law

This is memory of one of the attorneys of justice administration, about the arbitration sessions which at the end causes to be decided by Reza Shah.

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Guidance for Security of Personal Computer

Written by Bab Mahan

Translated by Mohammadhassan Deziyani

In this article the writer mentions a summary guide for security of the personal computer, then he explains about the internet connections and the dangers of viruses, worms and hackers.

At the end he inserts 10 applied means for reducing the danger. He also mentions the references.

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Foreign Part

Report of Japan Travel

Movement to decreasing appearance of judge in disputes

settlement

Second Part

• Court Decree for appointment of the attorney in the position of the public prosecutor

• Public prosecutors attention in the case drawing up

• Crimes and punishments

• People partnership in the affairs of the judiciary

• Reason of the judicial evolutions

• Number of the monthly cases

• Increasing number of the attorneys in comparison with the judges

• Office for evolutions of the judiciary and its members

• Access to the attorney

• Public prosecutorÕs office and attention in the case items keeping

• Nagoya bar association

• Pen name

• Insurance of court costs

• Medical treatment instead of punishment in narcotics

• Special research division for public prosecutor

• Motto of decreasing appearance of judge

• Group judgment

• Relation of attorneyship and judgment

• Investigation time

• Evolutions of the judicial system after the Second World War

• Human issues

• Table 1- legal population (1955 to 2003)