Editor in Chief’s Note
In this issue 4
points necessary for observance in the primitive judgment have been
set forth. Parts of them are as follows:
1.
Cancellation of agreements and contract by virtue
of law or based on contents of contract is of rights and powers of
parties to the transaction and contract.
2.
Partition is not distribution. Issuance of
non-partition certificate by registration dept. is …
3.
If the object of lease is for clinic, it includes
different parts …
4.
The arbitrator cannot render the judgment
repeatedly …
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A Selection of Latest Legal Approvals
-
Executive By-Law of
Agricultural Lands Title Deeds Issuance
-
Verdict No. 851
dated Mar. 12, 2006 of General Board of Administrative Justice Court
regarding Law for Handing Over Uncultivated Lands to the Farmers in
form of Temporary Cultivation
-
Law for Agreement
of Legal and Judicial Cooperation in Civil, Commercial, Personal
Status & Penal Affairs between the Islamic Republic of Iran
Government & Kuwait Government
-
Law for Amendment
of Note (1) of Article (188) of Procedural Law of Public and
Revolutionary Courts in the Penal Affairs approved in 1999 and
accession of three notes to that
-
Law for Jointing
the Islamic Republic of Iran Government to International Convention
against Taking Hostage
-
By-law for Tariff
of Attorney’s Fee, Counselor’s Fee & and Traveling Expenses of
Attorneys of Justice Administration and Attorneys Subject of Article
187 of Law for Development 3rd Plan of the Islamic
Republic of Iran
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Disciplinary Warnings
q
Judgment
No. 408 dated Dec. 5, 2005, drawn up by branch No. … of Judges’
Disciplinary High Court: “To summon individual(s) by mentioning
arrest without that it becomes obvious that they have summoned as
the informed or the accused is violation.”
q
Judgment
No. 339 dated Oct. 22, 2005, drawn up by branch No…. of Judges’
Disciplinary High Court: acquaintance of assistant to the public
prosecutor general of public and revolutionary prosecutor’s office
of Tehran concerning the announced violations
q
Judgment
No. 474 and 475 dated Jan. 16, 2006, drawn up by branch No. … of
Judges’ Disciplinary High Court: opinion of supreme court in
competence is binding for court of appeals of the province.
q
Judgment
No. 486 dated Jan. 23, 2006, drawn up by branch No. … of Judges’
Disciplinary High Court: to circulate the petition of the plaintiff
without the previous opinion statement regarding claim of insolvency
of payment of the legal expenses is violation.
q
Judgment
No. 464 and 465 dated Jan. 7, 2006, drawn up by branch No. … of
Judges’ Disciplinary High Court: acquaintance of chief justice and
judge of the branch No. … of the Shahre Ray Public Court concerning
the announced violations
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One Vote, One Experience
Verdict of court of
appeals in quash of verdict of court of first instance:
Conviction of the
tenant of the property, lease in the condition of giving possession,
regarding obligation of drawing up the official deed is illegal.
Please pay
attention to the following verdicts in this regard:
1.
Judgment No. 2107-2109 dated Feb. 22, 2004, drawn
up by branch No… of Tehran Criminal Public Court
2.
Judgment No. 341 dated June 14, 2005, drawn up by
branch No…. 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:
359- Court of first instance accepted the plaintiff action
concerning claim of the sum of 5,000,000 Tomans for the loss
incurring and rendered the judgment for dismissal of action
regarding its excess and judgment debtor requested for revision
concerning the issued verdict about his conviction, the court of
appeals accepted the objection and rendered the judgment concerning
that the plaintiff has no right due to non-incurring loss. The
plaintiff pleaded regarding his dismissal of action about excess to
the first relief after completion of the revision respite and the
Supreme Court reversed the judgment of court of first instance by
acceptance of the objection and sent the case to the parallel branch
of the court of first instance. What is the obligation of the court
of the first instance?
Opinion of majority of votes of the members of the current
commission in the session dated June 22, 2006
With respect to the fact that the
relief and the parties to the action are single and the high
authority (a branch of supreme court) has recognized the plaintiff
entitled for receipt of the loss extra to 5,000,000/- Tomans by
reversal of the judgment of the court of first instance, all the
more has had opinion of the plaintiff entitlement to demand of loss
up to the sum of 5,000,000/- Tomans and verdict of the court of
appeals in this regard is not effective therefore the court of first
instance shall investigate the whole relief of the demanded loss. In
the meantime, if the verdict of this court can be revised, it will
be investigated in the courts of appeals of the province.
360- A petition was submitted by the wife at the relief of divorce
authorization and issuance of incompatibility certificate against
the husband and leaded to issuance of incompatibility judgment by
payment of marriage portion. Can the wife request for issuance of
execution writ and demand of marriage portion from the husband
properties?
Opinion of unanimity of votes of members of the current commission
in the session dated June 22, 2006
Although the wife is
entitled to receive the marriage portion canonically and legally but
regarding the question, as the plaintiff is not judgment creditor of
the case so is not subject of Article 2 of Civil Judgments Execution
Law for request of writ of execution issuance but the husband who is
plaintiff and judgment creditor is entitled to pay in cash the
wife’s rights such as her marriage portion as per the Note 3 of
Regulations Amendment Law related to divorce approved by the
Expediency Council before execution of divorce formula, that is, the
entitlement of the wife for receiving the marriage portion in the
question depends to execution of divorce formula therefore, if the
husband requests for divorce execution, the wife cannot request for
issuance of execution writ with this reasoning that it has been
inserted in the incompatibility certificate that the marriage
portion and her other rights shall be paid. In the meantime, Article
2 of Law for Manner of Financial Convictions Execution is not
enforceable in this regard too. (Opinion No. 7/2241 dated June 11,
2001)
361- If issuance of injunction is permissible by court of appeals,
is there any need to agreement of head of judicial area for
execution?
Opinion of unanimity of votes of members of the current commission
in the session dated June 22, 2006
With respect to the
contents of Article 356 of Civil Procedure Code “the regulations
observed in the primitive proceedings are running in the revision
stage…” and regarding the word of court inserted in Article 310 of
the said law which includes the courts of first instance and appeals
of justice administration and the fact that the court of appeals
investigate procedurally and substantively same as the court of
first instance as per the above cases so there is no doubt that the
court of appeals is authorized to issue the injunction (Opinion No.
7/8283 dated Jan. 25, 2001 of Legal Department).
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Writing Criticism of One Verdict
Mohammadreza Khosravi
In this
issue the writer remembers Mr. Nezami Ganjeei, the popular poet of 6th
century and his effect in the Persian Literature. Next he states
that when he observes some of the verdicts of the courts, he regrets
and then he sets forth a very recent verdict issued by a court in
Tehran. At the end, he says that the verdict editing problems is so
much that can be corrected. He inserts some of the problems in
question form.
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~Article
Reasons of Proceedings Lengthening and Solutions for its Prevention
By Mohammad Esmaeil
Ebadi,
Third part,
Section
Three- Lengthening of adjudication in the execution stage
Part
One – Verbal judgments
Chapter
One – Problems of notification of execution writ
Chapter
Two – Problems of measures of bailiffs
Chapter
Three – Problems of non-access to the judgment debtor or his
properties
Part
Two – Special problems of judgments by default
Chapter
One – Problems of taking security from judgment creditor
Chapter
Two – Problems after taking security
Subject
Two – Solutions for prevention of proceedings lengthening
Section
One – Problems solution related to legislation
Chapter
One – Amendment of laws creating proceedings lengthening
Chapter
Two – Using new technology
Part
Two – Approval of new laws in the cases that there is no law.
Chapter
One – Passing of substantive laws
Chapter
Two – Approval of adjectival laws
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Article
Business Law
By Dr. Akhlaghi,
Forth
Session,
In
general definition, guarantee letter of credit or bank guarantee are
deeds or contracts by virtue of which the bank issuing letter of
credit or guarantee is obliged in lieu of the beneficiary to pay a
certain amount of money for a special subject to the account of the
beneficiary or to the order of him without term and condition and on
demand or at a certain due date.
Bank
guarantee of the advance payment concerning a subject may be sound
work performance. Guarantee letters of credit are such as deed
letters of credit and are based upon several basic contracts.
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Foreign Part
Report of Travel to Denmark
By: Mohammad Sarikhani
Upon
invitation of Denmark Human Rights National Institution and by
suggestion of Islamic Human Rights Commission and by agreement of
the honorable Chief of the Judiciary and endeavor of Deputy in
Education of Justice Administration of Tehran Province, a mission as
NGO inclusive of 11 judges of the justice administration of Tehran
Province who are studying in Ph.D. of Law (justice administration
scholarship) and one of the experts of commission who was working as
translator too went to the location of the Institution in
Copenhagen, capital of Denmark from Dec. 11 to Dec. 17, 2005 for
passing a scientific applied course of human rights with main
subject of Fair Trial.
The subjects were
set forth in this course are: 1. International standards related to
the independence and neutrality of judges and their execution in
Denmark as well as judgments execution, 2. Treatment with the
prisoners, 3. International standards, freedom and personal
security and fair trial, 4. Observance of rights of the suspected
and victims of the crimes at the stage of before trial and execution
of related laws in Denmark, 5. Torture
Also two centers of
police and prison and two courts (on duty and local) were visited.
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~~An Introduction to the Iran Criminal Policy Regarding Cyber Crimes
Mohammadhassan Deziyani
Second Part:
Unfortunately there is no detailed legislative literature for cyber
space in our country. In 2000 Law for Support of Computer
Programmers and in 2003 Law for Electronics Business were approved.
Now, Computer Crimes Bill is under the last stages of its
investigation in the Judicial Commission. Of course in the bill of
private limits which was not concluded in the Assembly, some of the
regulations providing for the electronic relations were set forth.
It shall be mentioned that several bills about cyber crimes, of
course subsidiary subjects, are forming. Recently bill of process of
verdicts and information have been sent to the Assembly.
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Article
Survey of a Matter Adjudged of the reasons for Decision
Undoubtedly, in the area of the civil procedure, concerning
imperative rules governing, ground for judge activity in the
modification place of the said firm and inflexible rules for
development and achievement of fair investigation is limited. As in
rules and in the process of investigation and finally rendering
verdict, this ground has more extent and in the proceedings and its
procedural rules, proceedings order and settling of dispute have a
high place, one of the accepted rules in the proceedings area, is
rule of a matter adjudged.
Concerning conditions for applying this rule and its inclusion
extent in the subjects of civil procedure, some researches have been
made by the writers of this ground. What is now our subject is that
does the area of the rule applying include the main text of the
verdict or does the grounds for decision include in the above rule?
Answering to the above question is including this point that (after
knowing the rule definition), we know the fundamental of this rule
in our law and then, emphasizing on the said introductions, we
present a rule for determination of causes that may have a matter
adjudged because the explicit and unilateral opinion statement
without analysis will not be an appropriate solution for the
problem.
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The 2nd Gathering of the Writers
The 2nd
gathering of the writers and honoring the professors of the
educational courses, judges holder of penal verdicts, articles,
writings and the selected office colleagues of the educational
courses were held by Deputy in Education of Justice Administration
of Tehran Province. This ceremony was held by appearance of Mr.
Haddad Adel, Head of Islamic Consultative Assembly, Mr. Avaei, Head
of Justice Administration of Tehran Province, Mr. Karimi Rad,
Minister of Justice and some of the other high-ranking judicial
individuals on July 5, 2006. This ceremony was began by screening of
a film of the function and activities of education department
concerning education affair of the judicial and office colleagues
and continued with speech of Mr. Avaei and Mr. Haddad Adel. Then the
selected were received some presents prepared by Deputy in Education
of Justice Administration of Tehran Province by Head of Islamic
Consultative Assembly. | 