Editor in Chief"s Note

It is supposed that in editor in chief’s note, every now and then we set forth the reasons of initial judgment reversal and extract the points which can be prevented and dispute about them is less from the reversed judgments and mention the important ones. In this part, we insert 15 points of the said reasons:

-               Is insurance policy an ordinary document or official document?

-               Necessity of official ownership attaining before the property delivery

-               Insolvency claim conditions and necessity of written witness of two persons

-               Inaccuracy of claim for damage of payment resulted from the vehicle price decrease

-               Necessity of the fact that it is attained the plaintiff knows that he has no right in the claim for damage 

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A Selection of Latest Legal Approvals

-               Executive instruction of manner of issuance of employment specialized license for real estate and automobile agencies

-               A selection of State Budget Law of the year 2006

-               Precedent Verdict No. 683 dated Jan. 3, 2006 of General Board of Supreme Court regarding payment of mulct as blood money

-               Precedent Verdict of General Board of Supreme Court under No. 682 dated Dec. 27, 2005 regarding Principal 49 of the Constitutional Law

-               Single Article of amendment of by-law for judicial training approved on June 12, 2003

-               Instruction for establishment of dispute settlement councils for traffic and transportation affairs

-               By-law subject of Article 16 of law for support of the geographical signs (Oct. 3, 2005

-               Law for agreement of extradition between government of Islamic Republic of Iran and government of Democratic Republic of Algeria

-               Precedent Verdict No. 681 dated Oct. 18, 2005 of General Board of Supreme Court concerning Article 1 of Law for State Jungles Nationalization approved in 1962

-               Accession of one note to Article 2 of Executive By-Law of Article 187 of Law for Third Plan of Economic, Social and Cultural Development

-               Verdict No. 239 of General Board of Administrative Justice Court regarding cancellation of circular letters No. 81/9071 dated Oct. 24, 1998 and No. 710/44874/4 dated July 9, 2000 and No. 710/29446/4 dated July 8, 2001 of Ministry of Education

-               Law for support of the geographical signs     

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Disciplinary Warnings

            Judgment No. 400 dated Dec. 3, 2005, drawn up by branch No. … of Judges’ Disciplinary High Court – Issuance of  Judgment of cancellation of writ which is based on deed of compromise is offense.

            Judgment No. 617 dated Oct. 22, 2005 of Judges’ Disciplinary Appeals High Board, in dismissal of complaint of rehearing: issuance of judgment in the manner of negligence and carelessness in duty performance by judge and then announcement of mistake concerning the mistaken regulations have not been considered by the legislator and is considered as disciplinary violation.

            Judgment No. 385 to 390, drawn up by branch No. … of Judges’ Disciplinary High Court – Determination of punishment for the accused person, drawing bad check and determination of another punishment for him in the same judgment due to wasting the said check is not considered as disciplinary violation.

            Being at a standstill of disciplinary case for more than 2 years and issuance of order suspending disciplinary prosecution due to inclusion of statute of limitations; Judgment No. 369 to 373 – Nov. 16, 2005, drawn up by branch No. … of Judges’ Disciplinary High Court      

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One Vote, One Experience

One vote, one experience of this issue is regarding applying Article 2 of Law for duties and powers of Chief of the Judiciary concerning judgment No. 1877 dated Mar. 8, 2003, drawn up by branch No…. of Tehran Public Court that by applying the said law, the mentioned judgment was reversed due to inattention to the legal regulations in the court of appeals. Please pay attention to the following verdicts in this regard:

1.             Verdict No. 1877 dated Mar. 8, 2003, drawn up by branch No… of Tehran Public Court concerning issuance of judgment for primitive plaintiffs

2.             Verdict No. 353 dated June 21, 2005, drawn up by branch No…. of Court of Appeals of Tehran Province concerning reversal of primitive judgment and issuance of writ of rejection of actions of the primitive plaintiffs

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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:

344- Is a child born of an Iranian mother with a foreign father in Iran considered as Iranian?

Opinion of unanimity of votes of members of the current commission in the session dated Dec. 1, 2005

As regarding the question, father of the child is certainly foreigner therefore by virtue of Clause 4 of Article 976 of civil code, the said child born of an Iranian mother in Iran, is considered as Iranian if his (her) mother is born in Iran so if merely his (her) mother’s nationality is Iranian, the said child is not considered as Iranian, the opposite sense of Clause “A” of Article 977 of Civil Code confirms this case too.      

345- In case a property which is under mortgage of bank, is sold by its owner in the manner that the obtained loan and its profit is more than the sum of sale, is this case a fraud?

Opinion of majority of votes of the members of the current commission in the session dated Dec. 1, 2005

With respect to the discussion and exchange of views in the session, it can be said that the act of the property owner, subject of question, is not fraud and has no other penal title because mortgage contract does not remove the ownership of mortgager and he is still the owner of the property. The confirmatory to this issue is opinion of Hazrate Imam Khomeini in “Tahrirolvasile” book, mortgage section, and opinion of the deceased Sheikh Morteza Ansari in “Almakaseb” book and also precedent verdict No. 620 dated Nov. 11, 1997 and the emphasized verdicts No. 42 dated Nov. 3, 1987 and No. 21 dated Mar. 3, 1997 of General Board of branches of Supreme Court and regulations of Civil Law about mortgage and in case of such a transaction, the mortgagee can refer to the mortgager concerning the defect as per the contents of Article 781 of the above mentioned law.  

346- In one case, a judgment has been rendered concerning the conviction of a person to imprisonment (punishment having maximum and minimum limits determined by law and judge respectively) and payment of blood money and after finality, the judgment has been executed regarding the imprisonment conviction but as payment of blood money has had respite and the judgment debtor does not accept to pay before expiry of the respite:

1-             Is the issued penal writ of attachment cancelled or not?

2-             Can the court change the type of attachment or mitigate its rate regarding execution of punishment (punishment having maximum and minimum limits determined by law and judge respectively)? 

Opinion of majority of votes of the members of the current commission in the session dated Dec. 1, 2005

The purpose of issuance of penal writ of attachment is access to the accused or the judgment debtor for guarantee of execution of judgment and damage and loss resulted from the crime that according to Note 2 of Article 139 of Criminal Procedure Code, if the aforesaid is present in the prescribed time or is introduced by the personal surety or pledger as a result execution of the judgment is began, in the conviction for example imprisonment or cash fine, writ of attachment is cancelled but as in the question, conviction has two general and private aspects (imprisonment and blood money) certainly at the time of obtaining blood money attachment, the blood money is considered therefore in this type of conviction even if the general aspect (imprisonment) is began and completely is executed because the other part of conviction (blood money) due to having respite is not immediately executable so the primary penal attachment cannot be generally cancelled rather this attachment shall be remain in force up to beginning of the conviction (blood money) execution, now maybe the court  is requested for change or mitigation of attachment or such a request is not asked but as the court responsibility remains up to full execution of the judgment and is not subject to proceedings ease, it should take measure regarding change or mitigate the attachment with respect to execution of general aspect of the judgment that this measure of the court conforms to the judicial logic.  

347- What is the purpose of “other authorities” that in the Article 1 of procedural law of public and revolutionary courts in the civil affairs (in the position of investigation of actions) are entitled to observe it?

Opinion of unanimity of votes of members of the current commission in the session dated Feb. 2, 2006

From the other authorities inserted in Article 1 of civil procedure code that in position of investigation are entitled to observe the regulations of civil procedure code, the non-judicial and semi-judicial authorities such as administrative justice court and tax commissions and administrative violations boards can be named that are legally entitled to observe some of the regulations of the said law such as subject related to notification of verdicts and notices therefore wherever the law knows observance of regulations of civil procedure for the non-judicial authorities necessary, the said authorities are entitled to observe it, so it can be said that there is no ambiguity in Article 1 of civil procedure code.

348- Does the joint and several liability of the account holder and drawer of the check, subject of Article 19 of Check Law depend on issuance of non-payment certificate and filing a suit in the said legal respite in Trade Law? 

Opinion of majority of votes of the members of the current commission in the session dated Dec. 29, 2005

The legislator has prescribed absolutely joint and several liability inserted in Article 19 of Check Law for preservation of rights of the check holder because subject of Article 19 of the said law is merely claim right and does not conclude endorsement subject and on one hand check drawing law has been issued after Trade Law, as the said article is penal, in case the mentioned check is bad and the non-payment certificate is issued, as per the regulations of check law, its signatory has penal liability therefore, concerning non-payment certificate, request for execution writ or filing a suit for damages against the drawer and account holder who have the joint and several liability, have no need for observance of the stipulated articles in the trade law so judgment of the said article is independently binding that is without considering regulations of trade law therefore in answer to the above question, it shall be said that issuance of non-payment certificate, that is explanatory of non-payment of the check amount, is necessary but there is no need for observance of the stipulated times in trade law.

349- Does entrusting of determination of effect percent in occurrence of damage (financial or life) to the expert have legal popularity?  

This question was omitted due to similarity to the question 351.

350- In case complaint of some of the members of housing cooperative company against the board of directors concerning breach of trust of a certain property leads to writ of non-prosecution can the next complaint of some of the other members of the said company against the board of directors about the same subject be investigated or does it receive as finished? 

Opinion of unanimity of votes of members of the current commission in the session dated Dec. 29, 2005

A matter adjudged in the penal matter is enough by the accused unity and a certain subject therefore if writ of non-prosecution of the accused person(s) to a certain accusation is issued and become final, it will have a thing judicially acted upon and merely for change in the complainants and their repeated complaint against the same person(s) concerning the same accusation, it does not have legal reputation unless according to Clause “N” of Article 3 of Law for Establishment of Public and Revolutionary Courts approved in 2002, the issued writ of non-prosecution is due to insufficiency of reasons and by discovery of the new reasons, the public prosecutor wants prosecution of the mentioned accused person(s) from the concerned court for once, in this case by order of the court, the prosecution will be legal.

351- Due to the driving accident, passer-by was injured and justice administration official expert knew the automobile driver as guilty for 100% but the injured person passed away after 20 days of the accident, forensic medicine recognized his death due to heart disease and knew effect of accident in the death for 30%, please determine title of accusation and can determination of percent of responsibility be referred to the expert or not?

Opinion of majority of votes of the members of the current commission in the session dated Feb. 2, 2006

Title of accusation is unintentional murder (manslaughter) resulted from carelessness in driving and determination of percent of guiltiness by the expert has no legal popularity because the subject is judicial opinion, that is, multiplicity causes to cancellation even though two reasons, accident and heart disease, have been mentioned for the death but as reason of the disease has been natural so it will not be guaranteed therefore the only reason of death in the question is accident as a result the guilty (the driver) will be responsible for 100% of guarantee.  

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Writing Criticism of One Verdict

Mohammadreza Khosravi

In this issue the writer while wishing that the criticism changes to a short note, sets forth a verdict and then criticizes it.     

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Article

Reasons of Proceedings Lengthening and Solutions for its Prevention

By Mohammad Esmaeil Ebadi,

Regarding this subject, it is necessary that I express the issue and the importance of subject and mention the effects and the possible results. Then I present the work method for removal of the problem of proceedings lengthening.

A)            Expressing the Issue and its Importance

B)             Research Goals

C)            Research Hypothesis

D)            Research Method

E)             Research Records

Arrangement of Chapters of Thesis

Section One: Reasons for Proceedings Lengthening

Chapter One: Proceedings Lengthening in the Stage of File Opening

Part One: Role of Organizations & Institutions Related to Justice Administration

Part Two: Role of Administrative Personnel in the Justice Administration 

Chapter Two: Proceedings Lengthening in the Stage of Investigation & Rendering Judgment

Part One: Subjects about Legislation  

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Article

Business Law

By Dr. Akhlaghi,

Second Session,

Two civil and trade domains are separate from each other. In the civil domain, the deeds are subject to their cause therefore if for any reason, the cause of a deed is vanished, that deed will be null and void because its relevance is cancelled. So in the civil domain, the deeds have manner but in trade domain, the deeds are not as these types. When a commercial deed is signed and is in circulation, it is valid even if its cause is vanished that is, the commercial papers have relevance due to signature and transfer and are separate from the legal relation. (abstraction description) from abstraction description, one doctrine and one presumption are deduced: A- presumption of debt B- doctrine of inattention to the exceptions

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Report of Travel to Singapore

Second Part

At 11 o’clock of the same day, we went to Police Station of Singapore. There were different sections in the police station, one of them was named crimes control. Afternoon of the same day, we went to the office of public prosecutor general which was very luxurious. There were 7 divisions at the public prosecutor’s office and each one had its certain duty. At 4 p.m., we went to the bar association which performed the consultation. The regulations of this association were derived from the English law. It had two types of attorneys. One type included the attorneys who were legal consulter but could not perform consultation in the court and the other were the attorneys who consulted and defended in the court too.

Thursday (July 31, 2004), 8 O’clock

At the morning, we went to Financial Corruption Control Center.

Of the important points were as follows:

-               The received amounts of the judiciary were sent directly to the treasury and were allocated for the judiciary administration through the credit requested by the court.

-               Chief of the judiciary had no time limitation for his office term.   

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Historical

This is the history of conviction of Mr. Ebrahim Zanjani, director of endowments.

Haj Mirza Shamsololama and several other persons complained against Mr. Zanjani who had confiscated the endowed property allocated to them. They referred to the court and the court passed a judgment for them but…….  

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Pornography of Children & Internet

Practical Procedure & Right in the Territory of Cyberspace

Mohammadhassan Deziyani

First Part:

Internet is making a great connection between computer networks in territory of cyberspace. Internet is a key element in globalization process. As technology developments make access to the information faster, more fundamental and more extensive, Internet has possibilities without limitation in opening new areas of knowledge and relations all over the world.

The important point is that this man-made technology is neutral. In the best state, it is a development tool which has multiple profits for human. In the worst state, bad and non-humanistic inclination of some of the people, change it to misuse and exploitation tool. The children pornography through Internet indicates the darker edge of human nature while technology becomes a tool for performance of non-humanistic and dangerous procedures and a crime tool.