Editor in Chief’s Note


In Ghezavat Magazine No. 50, I mentioned some points about “arbitration” which have been welcomed by the colleagues. As the actions related to arbitration are not less than other actions, jurists in the country and abroad are eager to make clarification of judicial precedent in this regard. In continuation of the study of judicial decisions regarding arbitration, we have encountered a case that is regarding the laws governing arbitration awards whether is date of arbitration contract drawing up or date of dispute that finally, it has been considered as rehearing cases based on the amended Article 18. This case has had a 4-year record in the justice administration and although encouragement for arbitration in disputes is for acceleration in dispute settlement, however this result of arbitration has been opened in the court of first instance and court of appeals for a full 4 years and in 2008 it has been referred to the parallel branch of the court for investigation by acceptance of rehearing. It is hopped that this case is ended well.



A Selection of Latest Legal Approvals


Limitation of actions still applicable regarding the actions of natural or legal entities by the laws of whose countries it is prescribed.
Aggravation of penalty of the objector to the decision by the investigating authority is contrary to the certain legal principles.
The owners holding title deed or official transfer deed of real estate are entitled to object the verdicts of the commission of Article 100 of the Municipality Law.
Notarial fees should be collected on the basis of the properties district (Income Tax Bureau) value
Some Points of Insurance Amendment Law.
1) Civil judgments are executed by the chief clerks of the court branch rendering judgment under supervision of the court’s judge. 2) Judgments of loss resulted from crime rendered by public criminal courts are executed by the public prosecutor’s office.
Determination of penalty of the constructional violations in the rate of construction transactional value at the date of violation
Installment of marriage portion is not lapsing the wife’s right of lien.
Municipalities task regarding division and partition of lands in the limits of the cities.


Disciplinary Warning


Violations of release without pawn deposit, convening penal court session with formal appearance of representative of the public prosecutor, bill of indictment without the accusations explanation
Issuance of judgment without relying on the legal articles, remission revocation are not acceptable but the judicial authority should consider to the authenticity of the letter of satisfaction.


One Vote,
One Experience

Committing battery, relinquishment of maintenance and voluntary separation prove the wife’s constraint.
The husband’s behavior is not proof of hardship and constraint for the wife.
Issuance of certificate of impossibility of reconciliation is confirmed.
Proofs of hardship and constraint are related to the custom.
The husband’s departure from a city to another one is his right.


Around the Table


The following questions were discussed in the round table, the commission’s majority or unanimity of votes is as follows:

397- By virtue of Article 3 of the Law for Aggravation of Punishment of Receivers of Bribe and Perpetrators of Bribery and Fraud, each of the governmental authorities and employees who collects money or payment note of any amount is considered as bribee and on the other hand, according to Article 592 of Islamic Criminal Law, the one who pays any amount or property for taking any action, which is of duties of the persons mentioned in Article 3, is considered as briber. Is the punishment of briber with 6 months to 3 years or 74 lashes conditioned to the fact that performance of the mentioned action is of the duties of the persons mentioned in Article 3 or not?

Opinion of nearly the unanimity of votes of the members of the commission present in the session dated Jan. 31, 2008
If a governmental employee collects an amount for taking any action which is of his duties or tasks of another employee in the organization, the offense of receiving a bribe is committed and the payer is considered as briber and the employee is the bribee but if the payer pays any amount, property or payment note to anyone, other than the ones mentioned in the Article 3, the offense is not fulfilled and the collector of the money, property etc. can be prosecuted under title of collection of illegitimate money.

398- According to the fact that the regulations of Article 522 of Civil Procedure Code 2000 denote calculation of late payment damages of a debt, by Iranian currency, after demand of the creditor, how the contradiction of this Article with Note 2 of Article 515 of the same Law can be justified?

Opinion of nearly the unanimity of votes of the members of the commission present in the session dated Mar. 7, 2008
It seems that Article 515 of Civil Procedure Code has a general and particular relation with Article 522 of the same law regarding demand for late payment damages, in that Article 515 and its Note 2 mention the demand for late payment damages concerning delay in performance or non-performance of the undertaking in the cases predicted by law while Article 522, mentioning some special conditions, denotes the demand of late payment damages the subject of which is debt and current money. Therefore there is no contradiction between the mentioned Articles.

399- According to the conditions inserted in Article 522 of Civil Procedure Code, is demand of late payment damages only possible with demand of the principal debt?

Opinion of nearly the unanimity of votes of the members of the commission present in the session dated Mar. 7, 2008
It can be demanded before filing a claim for demand of the principal debt, through an independent claim, or simultaneous with the main claim for demand of the principal debt or after rendering judgment regarding payment of the principal debt, through an independent claim relying on the mentioned case.

400- Who is the authority for investigation of the third party’s objection to the arbitrator’s award?

Opinion of nearly the unanimity of votes of the members of the commission present in the session dated Mar. 7, 2008
By virtue of Article 495 of the Civil Procedure Code, the arbitrator’s award is valid merely for the parties to the case and the individuals who are involved in election of arbitrator and their representatives and is not effective regarding the other persons. If a third party claims that the arbitrator’s award interferes with his rights, he can object it. His objection should be set forth in the public court of law, since the court is the authority for the settlement of disputes so if a branch of court has referred the subject to the arbitration, the objection is investigated by the same branch, otherwise the subject is referred to one of the branches of the competent public courts of law to be investigated because arbitration is an exceptional course of judgment and the arbitrator is not obliged to investigate this objection and the third party is not bound to refer to the arbitrator too.



Selection of World Legal News


1-Nepal lawyers boycott courts after bar president suspended.
2-Us psychologist group bars participation in military interrogations.
3-US judge orders psychiatric evaluation of Pakistan woman alleged to be al Qaeda agent
4-Japanese Internet mogul found guilty in appeal.
5-Tenn. inmate released after 22 years on death row
6-Tenn. Supreme Court rules against automaker.

Foreign Part
Criminal Proceedings
A View to International Processes & Rules
First Part

This article has been divided into three parts: 1. Introduction: In this part, the history of establishment of public prosecutor’s office has been set forth and emphasized that one of the important roles of the public prosecutor is control and supervisions of investigations by the police. 2. International Rules and Strategies of Proceedings:
Strategies of the UN include the specialized conditions, selection and education of public prosecutors and general status and work conditions of them. In this deed, freedom of speech and meetings and role of the public prosecutors in the criminal proceedings have been specially considered. These strategies consider other solutions and relations with other institutions as well as disciplinary proceedings.
The recognized and international rules of the public prosecutor’s office indicate that the public prosecutor should be representative of law and supervise the carrying out of investigations and criminal proceedings (with possibility of judicial revisionism, if his decisions affect the civil liberties of the suspected).
Public prosecutor should be neutral, i.e. all the case aspects, whether for the suspected or against him, should be investigated. The public prosecutor’s function is to be without political interference especially free from interference in the individual decisions.
It shall be mentioned that these changes show a movement from justice to efficiency and to deleting the crime and in that direction, remarkable changes are mentioned in balance between executive powers, parliaments and the judiciary.

Article
The Philosophy of Punishments in the Islamic Criminal Jurisprudence
Nasser Ghorbannia, PhD.
Now, one of the discussed subjects of the world is punishment philosophy. In punishment philosophy reason is set forth not the nature that is, it can be interpreted as fundamentals and goals of punishment. There are different goals for punishment: revenge, as one of the punishment purposes of the uncivilized societies, public prevention, deterrent aspect for the others and justice achievement are the serious subjects considered by criminal law specialists, criminologists and philosophers. Criminal system in the Islam Law has a special position and faces many challenges. Some of the concerned punishments in this system have been criticized.
It is no doubt that establishment of an applicable and fair criminal system is not possible without consideration to a clear criminal policy including criminal justice and definitely a criminal policy without deep consideration to the punishments goals will not be successful.
In this article, it has been set forth that the punishments in the Islamic jurisprudence is for public interests, correction of individuals, preventing people from committing crimes, supporting the society against crime and helping it in its defense against delinquency and it is not exceeded from necessity rate in supply of the society’s interest.
As a matter of principle, punishment is not ideal by itself and although in some crimes, intense punishment has been considered but means of proving such crimes is nearly impossible.
Creating the valuable principle of penitence and removal of punishment with a least doubt prove the same meaning.

Article
The Reasons for Evolutions of Legislation and Modernization of Arbitration System in Iran Legal Structures
Manijeh Danaye Elmi, Attorney-at-Law

In a general conclusion, Iran has modernized its international arbitration regulations in line with legislative evolutions in the other countries under influence of the UNCITRAL through compilation of Iran International Commercial Arbitration Law 2007 and by annexation to New York Convention, recognition and execution of foreign arbitration awards subject to this Convention has been made easy in Iran. In other words, by applying the best modern legal tools in line with the present world necessities, a promotion has been made as per the old historical record in this country in applying the arbitration institution in disputes settlement, but the method of recognition and execution of foreign arbitration awards which is not subject to New York Convention, is still ambiguous due to silence of law.
As a result, finding a solution for execution of these types of awards is by doctrine as well as Iran judicial precedent to establish the legal basis regarding the international and foreign arbitrations and in silence of national laws and convention regulations about manner of recognition and execution of foreign arbitration awards which are not subject to New York Convention, lay a foundation for it gradually and by presentation of a collection of rules and explicating a route conforming with the expediency, sets aside the limiting rules and originates materials rules the goal of which is promotion of international arbitration effectiveness.


Article
Are the Family Courts of Public Jurisdiction?
Behrouz Karbaschi, President of Branch 26 of Tehran Court of Appeals

In this article, the writer describes his belief that family courts are not of public jurisdiction. The opponents believe that the family courts are public because: 1. The issued order of position for them is for a public court. 2. Law for allocation of some of the available courts to family courts, subject of Principle 21 of Constitutional Law (family courts) 1997, grants the public courts competence to hear the family claims but the writer inserts some reasons and argues that: 1. Order is an administrative and organizational affair and has no effect in the court’s competence. The jurisdiction competence of each court is determined by law not by order or any individual. 2. Pursuant to 3rd Clause of Article 21 of the Constitution of the Islamic Republic of Iran, the government should establish the family competent courts only to hear family claims but as execution of this principle and establishment of family independent courts, needed time and budget, by a single article, Chief of the Judiciary was bound to allocate some of the available courts to family courts. So this is a purely administrative affair and naturally it has no effect on the judicial competence.


Article
Necessity for Evoiution
Abdolhossein Taleei, Representative of Tehran Public and Revolution Prosecutor in Detective Section of Tehran Police Detective Department

This is a note regarding issuance of clearance certificate by other public and revolution prosecutor’s offices. In addition to Article 20 of Judicial Record Bylaw was amended as follows: With respect to access to the individuals criminal record through computer general network of state police concentrated databank (C.C.H.) and acceleration in issuance of the clearance certificate, from now on the applicants can refer to the public prosecutor’s office of their Id. Card issuance location as well as other public and revolution prosecutor’s offices and they are authorized to issue the mentioned certificate and submit it to the applicants. Study of C.C.H. in the current state indicates only the applicants’ (probable) accusation(s) and there is no information about the individual’s conviction in the fingerprint records. It is evident that the study of the record of such applicants cannot be fulfilled in the city of their residence or place of birth unless the results of criminal records “such as conviction etc.” are delivered to all the state’s public prosecutor’s offices by the judiciary through a computer system same as C.C.H. If this evolution is not performed in the Judiciary simultaneously with the disciplinary force, defect in replacement of this Article, is evident for the authorities in charge.


Article
The Doctrine of NULLA POENA SINE LEGE
(No punishment except in accordance with the law)
Mostafa Mohaghegh Damad, Ph.D., Professor of Law Department of Shahid Beheshti University

In this article, the writer has compared the NULLA POENA SINE LEGE (There is no punishment in Islamic jurisprudence and modern law except in accordance with law) and mentioned that both of them are the same, the first one being a jural rule and the latter a legal principle. The meaning is that: if an act is not predicted to be a crime, the act is not considered as crime and has no punishment but if the legislator decides it to be a crime and a penalty is considered for it, and the appropriate law is approved and published, the perpetrator cannot say that I have not known that it is a crime, it cannot be accepted from him (her) and his (her) act will be considered as a crime.



The Month’s Guest
Subject: Forward Sale of Apartments

Lecture of Mr. Katouzian, Ph.D.

Subject of this session is forward sale of apartments. Purchase and sale today do not have the previous manner. The traditional forms have been changed and some of the transactions have the specifications that cannot be solved with the general and traditional rules and there is need for changing the laws or the judicial precedents is subjects such as sale of key money, commercial papers, purchase and sale with credit cards and electronic devices the rule of which do not exist in The Civil Law.
But our major subject is “non-constructed apartments” and the reason for the election is the Bill about the forward sale of apartments submitted to the Parliament by the government. This Bill has some positive points and an introduction to its draft clarifies the defects and it may be revised in the Judiciary.
Article 361 of The Civil Law states: “At the time of transaction, if the object of sale is not available, the transaction is void.” But it does not include the property which can become available in the future. It is as same as will. As per the Civil Law, the legacy should be available and it may become available in the future. Why? The reason is that the transfer fulfills from the date of death of the testator or acceptance of the beneficiary, so the property which is not available at the date of the testament but it becomes available at the date of conveyance, can be transferred.
There are two conditions for forward sale of apartments: 1. The apartment should be transferred by an official deed. 2. The apartment’s specifications should be completely clear.
There are two important defects in the mentioned Bill: 1. Maybe after completion of the apartment construction, the seller has some creditors and they may take possession of the apartment which has been sold before. 2. The prices may change (maybe there is increase or decrease in the prices).
But as one of the goals of the Judiciary in the Constitutional Law is justice enforcement, so the events should be divided into two categories: 1. Predictable events: they should not have effect on the price. 2. Unpredictable events: They may have effect on the price.



Koran Gathering


2000 Participants in the 8th Koran Gathering of Justice Administration of Tehran Province

The 8th Koran Gathering of Justice Administration of Tehran Province was held by endeavor of Deputy in Education of Justice Administration of Tehran Province in the fields of meaning, memorizing, reading, calligraphy and reading Koran completely by appearance of the judicial and administrative colleagues and their families and international readers of Koran with 22% growth of participants and variety of more subjects comparing the last year at Education Department located at corner of 17th Alley, Sanaei Ave. in Sept. of this year simultaneous with birth of Imam Hassan. At the end of the gathering before granting presents, The Head of Justice Administration of Tehran Province, Mr. Avaei, gave a speech.