Editor in Chief’s Note

We have promised if possible to use the allocated space of the editor in chief in each issue for notifying summary of some points in between the colleagues’ judgments that its study is effective in investigations and final deductions, as the case may be.

In this issue, 3 points (Order of Eviction – Arresting Third Party, Abrogation of Execution Operations) are reviewed too. 

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A Selection of Latest Legal Approvals

·          Two instructions with one title

·          Necessity of establishing of the identity of the claimants of relation to the Leader and his family and the other system supreme authorities

·          Identification of the available cases in the dead records and change to the electronic documents and transfer to the documents organization and national library

·          Competence of courts of appeals of the province regarding investigation of revision request from the rendered judgments from public and revolutionary courts

·          Competence of land reforms council regarding documents amendment related to farming arrangements

·          Exemption of small workshops with less than 10 workers from inclusion of some of labor regulations, does not lead to enactment of special commanding rule.

·          The deed registered as per the laws, is official and all its contents and signatures inserted therein will be valid unless its forgery is proved.

·          Obligation of the Notary Public for opening interest free loan account in the branch of the Melli Bank is beyond the scope of powers of State Organization for Registration of Deeds and Real Estate.

·          One year extension of experimental execution of the Islamic Penal Law and three months respite for submission of new bill

·          3 months of respite to the public prosecutor general’s office for announcement of the precise specifications of the persons barred to transaction        

·          Incompetence of justice administrative court in investigation to the objection against the rendered verdicts by advisor’s board of state audit office

·          Investigation to crimes of agitators in the state economic system with goal of the system confronting is in competence of the revolutionary courts.

·          To break off employment relation; condition of issuance of attorneyship training license

·          Authority of the wife about demand of the marriage portion in the court, place of residence of the defendant or location of marriage solemnizing.

·          Executive bylaw of specialized dispute settlement councils of the administrative justice court   

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Disciplinary Warning

q       Judgment No. 503 and 504 – Jan. 17, 2005, drawn up by Branch … of Judges’ Disciplinary High Court: “Writ of non-prosecution issued by interrogator of public and revolutionary prosecutor’s office for the government employees about the judge accused for carrying and keeping non-authorized arm, depends on the judicial opinion.”

q       Judgment No. 129 dated June 25, 2004, drawn up by branch …of Judges’ Disciplinary High Court: “Disciplinary violation due to issuance of writ of execution before the judgment finality”.

q       Judgment No. 516 dated Jan. 26, 2005, drawn up by branch…of Judges’ Disciplinary High Court: “Applicability of the penal complaint cases with legal penal titles is undertaken by the judge investigating the case.”

q       Judgment No. 307 dated Oct. 10, 2006, drawn up by branch… of Judges’ Disciplinary High Court: “Disciplinary violation due to non-considering the report of communicant about death of one of the defendants.”

q       Judgment No. 128 dated July 25, 2007, drawn up by branch …of Judges’ Disciplinary High Court: “Disciplinary violation due to rendering judgment regarding dismissal of action of ejection despite of confirmation of relation of lease.”

q       Judgment No. 32 to 35 dated Apr. 27, 2004, drawn up by branch …of Judges’ Disciplinary High Court: “Of the disciplinary violation in the above judgment are: Non-supervision on the office affairs, election of experts in even numbers and …”

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One Vote, One Experience

Quash in quash

Remark:

1-       Court of Appeals considered the location, object of lease (expert’s office) subject of Landlord and Tenant Law of the year 1977, that is subject of business right etc. and quashed the judgment of court of first instance.

2-       Quashing judgment of Court of Appeals, Verification branch of the high court confirmed verdict of court of first instance.

Then 3 judgments rendered are mentioned:

1.       Judgment No. 113 dated June 25, 2003, drawn up by Branch No.  16 of Tehran Public Court

2.       Judgment No. 1297 dated Aug. 25, 2003, drawn up by Branch No. 7 of Tehran Province Court of Appeals

3.       Judgment No. 9-1370 dated Jan. 28, 2005, drawn up by Verification Branch No. 9 of the High Court  

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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:

384- Is division of inheritance considered as litigation? In case of issuance of judgment, if the judgment creditor does not request for writ of execution, can the judgment debtor have such a request? If the answer is positive, in case the rendered judgment is by default regarding some of the heirs, does execution of this judgment depend to introducing valid surety or taking proper guarantee from the applicant of the executive writ (Note 2 of Article 306 of Civil Procedure Code)?

Opinion of unanimity of votes of the members of the current commission in the session dated July 19, 2007

With respect to Chapter 7 of Section 5 of Non-Litigious Jurisdiction Act about inheritance division and by virtue of Article 1 of the mentioned law, it shall be said that in division of inheritance in case there is no dispute concerning its ownership, it is not considered as the litigation affairs as a result its investigation is performed in compliance with the said law and even if there is no dispute regarding a part of inheritance, it will be investigated in the above manner because the court investigation in this regard, is not proving right rather it is proving right of heirs that is drawn up as per Article 324 of the above mentioned law in form of letter of division and is similar to the amended report and is considered as judgment because this judgment is not merely to the advantage of the plaintiff rather it is to the advantage of the defendant so request of issuance of writ of execution is not limited to the plaintiff if he does not have such a request, the defendant of this judgment who is beneficiary can request for issuance of execution writ and however for observing the absent rights, its execution depends on introducing valid surety or taking proportionate guarantee from the applicant of the execution writ as per Note 2 of Article 306 of Civil Procedure Code.        

385- Can the officials of Agricultural Jihad take measure regarding eradication of building without the court judgment by virtue of Note 2 of Article 10 of Law for Amendment of Law of Gardens Agricultural Efficiency Protection approved in 2006?   

Opinion of majority of votes of members of the current commission in the session dated July 19, 2007

By virtue of Principal 36 of the Constitutional Law, punishment judgment and its execution should be merely through competent court and based on law, therefore, in reply to the above question, it shall be said that as Article 10 of Law for Amendment of Gardens and Agricultural Lands Efficiency Protection Law approved in 2006, the non-authorized measures of the mentioned article is known as crime, it is evident that this crime should be investigated in the competent court and after proving and issuance of final verdict is executed as a result the officials of Agricultural Jihad cannot take measure regarding eradication of building without final judgment of the judicial authority rather they can merely prevent from continuation of the operations of the performer up to issuance of the judgment so applying note 2 of article 10 can be after issuance of final judgment of the court otherwise if we accept the Agricultural Jihad officials can take measure regarding eradication of building before final judgment of the court, in this case previous articles of the said law, including article 3 that determine punishment for theses measures and explicitly eradication of building is inserted in it, will be cancelled and vain.        

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Judicial Meeting

Received from Karaj Public & Revolutionary Prosecutor’s Office

Abstract

Q: If public prosecutor has right of research and evaluation of the new discovered proofs, in case he does not consider the proofs as the new reason or the court does not permit so, what decision should be made about the compliant under consideration?

A: Supposing non-obtaining new evidence by the public prosecutor or non-issuance of the repeated prosecution permit of the accused by the court, the case is returned to the public prosecutor’s office and is filed merely by administrative order and there is no need for issuance of writ.

Q: In case of discovery of smuggled goods such as liquors in wholesale which its value is more than one million Tomans, should it be decided according to Article 703 of Islamic Penal Code or according to Smuggling goods law? If value of the liquors is less than one million Tomans, should it be taken measure according to Clause “A” of Article 2 of Law for Applying Manner of Governmental Punishments about smuggling goods and foreign currency or as per Islamic Penal Law?

A: If it is less than one million Tomans, the perpetrator is fugitive of punishment of liquors and there is no possibility for his punishment and this theory changes risk of liquors for less than one million Tomans to the advantage of the violators while opinion of the legislator is not supplied with this policy so it should be known subject to Article 703 of Islamic Penal Code.

Q: Can the judgment debtor who did not object to the court verdict, use mitigation of penalty of Article 6 of law for amendment of part of laws of justice administration or not?

A: In reply to the above question, the majority of the judges opinions is that regarding to applying the contents of Article 6 of the above mentioned law, mitigation of penalty has no meaning in the Revolutionary Court but not in general.

Q: Arresting the judgment debtor against cash fine as per law for execution manner of the financial convictions, should be performed by virtue of the court verdict or should the judgments execution division take measure directly in case of non-payment of fine?

A: In this regard, the judges believe unanimously that the court attention should be attracted. By virtue of advisory opinion No. 7/4622 dated Oct. 17, 1999, the convicted arresting needs the court order. Execution of the judgments division cannot arrest anyone without the court order pursuant to Article 696 of Islamic Penal Code.

Q: If the case is sent to the court for dispute settlement among the interrogator and public prosecutor and assistant to the public prosecutor general of opinion, can the court accept no of the opinions and announce a third opinion contrary to their opinions? In this regard, what is the obligation of public prosecutor’s office about the court verdict?

A: However the court opinion as the higher authority is binding, whether is confirmation of the interrogator’s opinion, or it confirms the public prosecutor’s opinion or it indicates a third opinion.

Q: A mature girl herself selects to live with her mother and requests alimony from her father, can the father make condition that payment of alimony to her depends on her following of him and he residing with him?             

A: The girl is mature and has the option to live anywhere (with her mother, her father or independently) and if the father has financial ability and the daughter is entitled to collect the alimony, the father should pay it to her and cannot make these conditions.

Q: In a marriage certificate, payment of a part of marriage portion in cash, for example, ½ of it for the sum of Rls. one million was guaranteed by the father-in-law. The father-in-law passed away before approval of law for marriage portion in daily rate (July 20, 1997) then the wife demanded it from the heirs and colleted it from the legacy for the same Rls. amount inserted, in this case, can the wife request difference of the marriage portion in daily rate from her husband concerning he is alive?

A: With respect to the contract of guarantee, as death of the father-in-law (guarantor) and demand of the marriage portion is before approval of law for accession of one note to the article 1082 of Civil law, difference of the marriage portion in daily rate cannot be demanded from the husband and the wife is merely entitled to collect the marriage portion, object of guarantee, from the deceased’s legacy.     

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An abstract of a Story

Mohammad Reza Aslani

Eivan Elich is at the sickbed. He is a high-ranking judge. He is thinking about his past years….. He is strong and popular interrogator of the city. He is handsome. He is put under consideration of all people and the justice administration. Moreover, there is someone who loves Eivan. He marries with Peraskovia. The women envy to her. But she becomes acquisitive with thanklessness and corners her husband with anger and seeking excuse.

Disappointed of his family life and yearning of prosperity, he turns to his work and position. He passes successfully considerable ups and downs of the life and is appointed to public prosecutor…

At the end he passed away.

This is a part of a story written by Tolestoy (1828-1910).    

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Letter of Intent

Dr. Seyed Mahmoud Kashani 

Due to the obligations that exist for drawing up the official deed in the immovable transaction concerning inquiry from registration dept., payment of municipal charges, taxes, taking inquiry from different administrative or governmental authorities and the fact that the purchasers cannot pay the price of transaction in cash, drawing up the letter of intent as a preliminary contract is needed so that after making all the preparations and payment of the main part of the price, the parties appear in the notary public office and take measure regarding drawing up the official deed. By appearance of letter of intent in the custom of the transactions in Iran, it has been necessary that a law is passed in this regard so that the purchaser and seller relations and their rights are guaranteed. Expediency of Clause one of Article 46 of Registration Law, that makes compulsory registration of contracts and transactions regarding transfer of the registered properties, has been that concerning letter of intent of immovable sale, some arrangements are predicted by the legislator regarding its deed to be official. Necessity of this legislation, has been compilation of a bill in this regard by the judiciary but due to non-performance of this obligation by the judiciary, an abundant disputes and claims have been created between the purchaser and the seller during a few last decades and the courts encountered many cases in this regard that impose much costs to the people and the country judiciary every year. To prevent creation of these types of disputes and waste of time and imposing costs to the people and the government, a law should be passed about letter of intent and for compilation of a bill about this, the state jurists, achievements of the other countries legal systems and the country judges experience should be used.  

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Thesis

Doctrine of a Penal Matter Adjudged in Civil Action

Fourth Part

Prepared by: Batoul Ahani

In this issue, the followings are set forth:

Conditions of doctrine of a penal matter adjudged in civil action

Setting forth the issue:

First Part – Necessity of existence of a penal matter adjudged

Chapter One – Conditions relevant to the court rendering the judgment

A-      Solution inferred from the rule fundamental

B-       Solution inferred from the laws

Chapter Two- Conditions relevant to the judgment nature

A-      To be penal

B-       Finality

C-       Investigation of the original issue of criminality

D-      Clearness & explicitness

E-       Necessity of investigation

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A Selection of World Legal News

1-       China to release jailed NYT researcher sentenced for fraud.

2-       Congress members subpoenaed to testify in Cunningham contractor bribery trial.

3-       Former Leader Fujimori arrives in Peru to face trial on corruption, human rights charges.

4-       Taiwan VP indicted on corruption, forgery charges.

5-       Bangladesh arrests creator of Muhammad cartoon, suspends magazine over publication.

6-       Violent crime in US increases for second year running: FBI

7-       Federal judiciary concerned over salary gap.

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Foreign Part

The Judges Independence & Neutrality, Fundamental Condition for Fair Trial

Andra Sakouchi, Napel University Professor

1. Introduction

Independence and neutrality of judges usually are considered as two essential conditions of “Fairly Trial” and these two conditions may affect structural plan of the Judiciary and its position in institutionalizing of a government more than any other condition. In fact independence and neutrality are not only mental guarantees, which shall be created in the justice execution but also that are identical rules that go beyond the separation investigations and its parties and finally they make relation by separation of powers in a democratic society based on law sovereignty. Regarding the issue complication, scope of this article has limited on emphasis on some of the issues related to the judges’ independence and neutrality.

(Then the followings are explained in this article)

2. Independence, 3. Neutrality, 4. Conclusion

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The Month’s Guest

Financial Commitments

Mr. Mohagheghedamad, Ph.D.

By: Seyed Ebrahim Mahdiyoun – Legal Expert

Are the financial commitments, debt?

Most of the time, there is obligation from one hand and right to demand from another hand while there is no debt such as allowance to family members, the child is bound to pay the alimony and the father can collect it but it is not considered as the debts that the positive assets is for the creditor and the negative assets for the debtor. We have such types very much. I have extracted many cases of these that there is obligation and right to demand is created and that there is no debt and the debt judgments are of no avail in this regard. The meaning of debt is not a simple affair. One aspect of debt is undertaken by the debtor and one aspect of it is related to the debtor properties and is collected from the inheritance at the time of death if he makes his will as per Quran, that is while the debt is not extracted from the inheritance, the third portion of property cannot be extracted while the obligation is not in this manner. The obligation is undertaken by the bound person and as the court does not make the obligation, compulsory and after refusal of the obligor from performance of commitment and abstinence of execution of obligation and transfer of the obligation from the obligor to his properties after the court judgment which is a judicial measure, it changes to the debt.

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Writing Criticism of One Verdict

Mohammadreza Khosravi

In Reply to a Criticism

In this part the writer mentions followings in his defense regarding the criticism set forth: “In page 57 of Ghezavat Magazine No. 45, an article was inserted under title of “Sarcastic in stead of Literary Writing Criticism”, the writer in that article accused me due to going beyond morality and fairness observations concerning the judges. But if he knew my remarkable sensitiveness regarding the judicial literature faultlessness, he would consider it as frowning of a teacher, that is, compassion of him towards his students. Having participated continuously in the judicial probationers’ classes and presented articles in the legal magazines of justice administration, “Payam-e-Amouzesh” and this magazine, Ghezavat, I have endeavored for removal of writing errors and mistakes from the judges’ writings for about 25 years…”

Then he replies to one of the criticisms of the criticizer by mentioning several examples.

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Rule of Lo’s (Doubt Near to Certainty) & Compurgation

41 Compurgation Comparative Points

Dr. Mohammadreza Zandi

Second Part

In this part, the continuation of the comparative points are inserted:

Point 21: Formalities and quality of compurgation from viewpoint of Hanafite

Point 22: Formalities and quality of compurgation from viewpoint of Malekiyeh 

Point 23: Formalities and quality of compurgation from viewpoint of Shafiite  

Point 24: Formalities and quality of compurgation from viewpoint of Hanabalite

Point 25: Formalities and quality of compurgation from viewpoint of Shiite

Point 26: Compurgation: to be on constitution or confirmation basis

Point 27: Compurgation can acquit and also proves crime

Point 28: Compurgation is merely for accusation denial

Point 29: Proving crime by compurgation at the extent of blood money (viewpoint of Shafiite)

Point 30: Proving crime at the extent of punishment and blood money (viewpoint of Shiite, Hanbalite and Malekiyeh)

Point 31: Execution of compurgation by the guardian in case of absence of heir of a murdered person

Point 32: Lo’s in committing battery

Point 33: Impossibility of execution of compurgation related to the minority periods at the time of maturity

- Majority Opinion

Point 34: Proving assault weapon through compurgation

- Majority Opinion

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*Koran Gathering

1400 participants in the 7^th Koran Gathering of Justice Administration of Tehran Province

Upon report of Public Relations & Communications of Justice Administration of Tehran Province, the 7^th Koran Gathering was held by goal of expansion of the Islamic high values and more sociability with Koran facts and studies in the form of competitions in the fields of Meanings, Memorizing, Reading and Plan of Reading the Whole of Koran by endeavor of Education Dept. and cooperation of Public Relations and Communications of Justice Administration of Tehran Province on Sunday dated Oct. 7, 2006 at the location of Deputy in Education Office, Sanaei Ave., Before Shahid Motahhari Ave. This intellectual ceremony was held by appearance of the honored judicial and administrative colleagues, their families, international readers of Koran and a great many of the participants.

At the end of the ceremony, having declared his appearance satisfaction in this holy gathering, Hojjatoleslam Valmoslemin Javaheri, Deputy in Education of the Judiciary expressed his thanks to those in charge of holding these kind of ceremonies and delivered a speech. 

It shall be mentioned that all the participants in this year gathering have been 1357 persons; this figure has had a remarkable growth in comparison with the last year, which was 248. At the end, those selected have been granted some rewards.