Editor in Chief’s Note


The Editor in Chief in this issue has mentioned four points from among the judgments:
1.Rendering judgment against the apartment seller to fulfill his undertaking, concerning official transfer of the object of transaction while the mentioned object of sale should be destructed by virtue of the burden commission of Article 100 order is not correct.
2.In the periodical incapacity, the burden of proof about conclusion of contract in the insanity state is on the plaintiff.
3.To initiate proceedings for annulment of official deed of settlement, the action should be brought against all the parties drawing up the deed (grantor and grantee), and lodging the claim against those who did not intervene in drawing up the deed or transaction, is incorrect.
4.Claim for invalidation of serving a notice against the department of notification, for non-observance of the notification regulations by the process server, is not of the litigatory affairs, so it just needs application for a court order.

A Selection of Latest Legal Approvals

To enforce judgments by default in which a bank is the judgment creditor, a written undertaking by the bank is enough.
Cooperation Foundation of Disciplinary Force of the Islamic Republic of Iran is not of the governmental units.
Law for Determination of Higher Councils Status
Competence of Administrative Justice Court to hear complaints regarding the decisions made in the Board of Article 2 of Executive Bylaw of Article 187 of the Law for Economic Development Third Plan
Order of Administrative Justice Court regarding change of employment status from contractual to official
Instruction for establishment of regional judicial councils
Bylaw for Article 17 of Amendment Law for Compulsory Insurance of Civil Liability of Land Motor Vehicles Owners against Third Party Law
Order of Administrative Justice Court regarding entitlement of employees working in the deprived and remote and war areas for using one month annual leave of absence as well as paid leave of absence or collection of all the related salaries and allowances


Disciplinary Warnings

Construing lying instead of false personalization; requiring the surety to bring the accused despite of non-notification of the investigation time; Three-day respite for the surety to introduce the accused
Disciplinary violation for negligence in investigation and rendering a non-evidenced judgment
Disciplinary condemnation due to issuance of judicial order regarding the cases which are not referred, to introduce and recommend friends and acquaintances to judges, uncommon relations with sheriffs and attorneys


One Vote, One Experience

A female, aged 22, is arrested in charge of having 3.45 Kls. of Crack and another female, aged 15 in charge of assistance in the offense and the case is sent to Shahriyar Court of Revolution but the court sends the latter’s case to Tehran Province Criminal Court due to lack of jurisdiction. The Criminal Court considers the case to be beyond its competence and is of the opinion that Shahriyar Court of Revolution should investigate it. As a dispute is created between the two courts, the case is referred to the Supreme Court. The verdict of the Supreme Court: Regarding facts of the case and report of the assessor member and as Crack has not been inserted in the world list of narcotics and the Ministry of Health has not announced it officially as narcotics so the court believes that the investigation is within the competence of public courts and therefore, lack of jurisdiction order issued by Shahriyar Court of Revolution and Branch … of Tehran Province Criminal Court are overruled and while Shahriyar Public Court competence for investigation is confirmed, the case is referred to it.



Around the Table

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

404- According to the Note of Article 484 of Civil Procedure Code, when the period of arbitration is not clear or is not extended by agreement of the parties, the arbitrator(s) should issue the award within three months after notification (except in legal cases such as Article 478 of the mentioned law), otherwise the award issued is subject to Clause 4 of Article 489 of the law and is invalid. Now if some reasons, e.g. receipt of the expert’s advise or new evidences by the parties to the suit, etc. cause delay in making the award, is the award subject to Clause 4 of Article 489 and thus cancelled?

Opinion of nearly the unanimity of the members’ votes in the session dated May 22, 2008
The reasons inserted herein will not be a legal cause for delay in decision making by the arbitrator, rather he/she is bound to make his/her award on the basis of the documents in the stipulated time-limit, otherwise the mentioned award is invalid according to Clause 4 of Article 489 of the mentioned Law and will not be enforceable.

405- The court has issued the injunction requested by the plaintiff after taking appropriate security. If he/she does not file a suit according to Article 318 of Civil Procedure Code or in case of filing a suit, his/her claim is rejected, according to Articles 323 and 324 of the mentioned law, should the defendant bring an action for taking the cash security for obtaining his/her damages or mere submission of a request would be enough?

Opinion of nearly the unanimity of the members’ votes in the session dated May 22, 2008
With respect to the explicitness of Article 324 of Civil Procedure Code which reads «…if a suit is not filed for damages within one month from the date of service of the final judgment …» undoubtedly the claim of incurring the damage resulted from executing the injunction needs submission of a petition and proving the claim. But in respect to securing the relief, according to Article 120 of the mentioned law, there is no need for submission of a petition, rather by a mere request and presentation of the evidences according to the recently mentioned Article, the court will hear the case and render the appropriate decision.

406- Is the Judgments Execution Division authorized to continue executing process for collecting blood money after the death of the convicted or not?

Opinion of nearly the unanimity of the members’ votes in the session dated July 3, 2008 & Aug. 28, 2008
Continuation of executing operations using the property of the deceased convicted through Judgments Execution Division of the same Public Prosecutor’s Office causes the injured party to attain his right more quickly which removes the need for filing another suit and passing long stages for achieving his certain right which is nearer to the judicial justice, so the question is not subject to Clause 1 of Article 6 of Criminal Procedure Code which governs personal punishments such as imprisonment and whip and fine, therefore the death of the convicted does not process.

Advisory Opinions of Department General of Legal Affairs & Codifications of the Judiciary
Q: In case of sale of the property by the heirs, is the decree of heirship enough for drawing up of a deed of transfer or the inherited property should first be registered in the name of the heirs at Register of Real Estates?
R: «By attaining ownership of decedent’s legacy, action for binding the heirs to draw up an official deed can be heard.»
Q: In lease of a residential place, if the term has been expired and the lessee has evacuated the place completely but he/she has not delivered it to the lessor, can the lessor collect the rental value of this period?
R: «After expiry of the lease term, if the lessee has evacuated the object of lease but he/she has not delivered it to the lessor, he/she should pay the rental value.»
Q: In case of the death of one of the parties to a suit, does the continuation of the hearing need presentation of decree of heirship or to mention the deceased’s successor and the request by the beneficiary would be enough?
R: «In case of the death of one of the parties to a suit, mentioning the successor of the deceased does not need presentation of a decree of heirship.»
Q: What is the meaning of the phrase: «… attorneyship of the attorney will not be acceptable in any of the courts and the mentioned authorities …» in Note 1 of Article 103 of Direct Taxes Law?
R: «From the above phrase it is understood that not stamping or a deficient stamping will not be a cause for notification of deficiency, rather the mentioned power of attorney is not acceptable at all.»
Q: Is an attorney not introduced as attorney of the plaintiff authorized to participate in proceedings?
R: «The attorney whose name is inserted in the power of attorney cannot participate in the proceedings before he/she is introduced as the plaintiff’s attorney to the court.»
Q: If the attorney claims his/her fees for the appeal but the Court of Appeal does not render a judgment including the attorney’s fee, is this an instance of the cases of correction of judgment mentioned in Article 309 of Public and Revolutionary Courts Procedure Code in Civil Affairs?
R: «If the Court of Appeals has not rendered a judgment including attorney’s fee in appeals stage, this is of the instances of Article 309 of Public and Revolutionary Courts Procedure Code in Civil Affairs.»
Q: How is the amount of attorney’s fee determined and in case of dispute between the attorney and the client or objection of the third parties adjudged to pay the attorney’s fee, what is the solution?
R: «Attorney’s fee is the same inserted in the contract and if there is no contract, it is calculated as per the tariff. In the actions in rem, it is determined as per the value of the relief. If there is dispute between attorney and client regarding the attorney’s fee, the attorney’s fee is determined concerning the real price of the relief.»
Q: Do the attorney’s fee and other charges such as counseling fee and traveling expenses of attorneys need a petition or not?
R: «Claim for the attorney’s fee needs submission of a petition if it is not included in the final judgment.»
Q: Is empowering one who has bachelor’s degree in law at a Notary Public Office enough for attorneyship in Justice Administration?
R: «Attorneyship in Justice Administration is allocated to the justice administration attorneys-at-law.»
Q: Are those appointed as administrative agencies by the principal at Notary Public Offices authorized to intervene in proceedings?
R: «In Justice Administration, merely the principal party or an attorney-at-law is authorized to take part in proceedings and also the legal representative can take part in the exceptional cases as per the law.»
Q: Is observing the regulations of Article 35 of Public and Revolutionary Courts Procedure Code in Civil Affairs binding for legal representatives?
R: «With respect to the fact that legal representatives take part in bringing action or defense and following up actions, the scope of their powers should be clear as same as attorneys-at-law.»
Q: In cases that a bank has different branches in different areas, where would the related claims of each branch be heard? And if the losing party branch cannot pay judgment debt, what is the winning party to do?
R: «If the bank has different branches, claims of each branch are investigated in the court near the same branch but if the bank branch has lost the case and cannot pay the judgment debt, the wining party can collect it from other branches of the same bank.»
Q: Where would the decisions issued by the commission of first instance or the commission of appeals of Article 100 of Municipality Law and quashed in the Administrative Justice Court be referred? And what would the decision of that commission be?
R: «In case the decision of the Commission of Article 100 of Municipality Law is quashed in Administrative Justice Forum and the final judgment is rendered regarding it and is brought in the parallel commission again, the commission should follow the holding of Administrative Justice Forum.»
Q: Is the objection of a third party to the final judgments different from the objection of a third party in Articles 146 and 147 of Civil Judgments Execution Law?
R: «Objection of a third party to the final judgments is heard as per regulations of Procedural Law but third party objection concerning the attached property is brought according to Articles 146 and 147 of Civil Judgments Execution Law.»


Selection of World Legal News

1-Approval of Law for Supervision on Internet Communications in Sweden
2-The inmate who passed away in prison was acquitted.
3-Iraq officials announce reopening of Abu Ghraib prison.
4-Congo ex-militia leader Lubanga pleads not guilty at first ICC war crimes trial.
5-Malaysia seeking return of 2 Guantanamo detainees
6-Guantanamo prison closure order hailed worldwide.



Foreign Part

Compromise Outside the Court
A Brief Study of Dispute Settlement Methods in Austria
This subject deals with dispute settlement in the criminal issues in Austria so that the judicial investigations and charges are prevented and crime record is not registered and bureaucracy is hindered and the solution is appointment of arbitrator whose duty is determination of the content of compromise between the criminal and the victim. This method was begun regarding teenagers in Austria since 1985 and as it was successful, compromise outside the court was approved as a legal method in 1988. This method was suggested to be applied regarding adults in 1990 and it was welcomed and 3/4 of cases were settled in this manner.


Article


Some Remarks Concerning the Law for Dispute Settlement Councils 2008
Rezvani – Judicial Deputy of General Director of Public & Revolutionary Courts of Tehran & Head of Shahid Sadr Judicial Complex

Law for Dispute Settlement Councils was recently approved. In the law, approval of some bylaws has been prescribed. Some of the judges of Shahid Sadr Judicial Complex have studied the articles of the mentioned law and set forth their recommendations in 31 clauses. It is hopped that they are considered in drawing up the bylaw. Competence of Dispute Settlement Councils include civil and criminal affairs.


The Month’s Guest

Lecture of Mr. Azmayesh, L.L.D.

The following questions were asked from Mr. Azmayesh, who is one of the prominent professors of criminal law and he answered them in detail:
1. Ineffectiveness of the force majeure factors in the correctness of arbitrator’s opinion, 2. Agreement of the Chief of the Judicial District with the writ of temporary detention ordered by the courts, 3. Simulation in forgery, 4. Applying Article 2 of the Law for Pecuniary Convictions about judges, needs suspension of office, 5. Governments international liability, 6. Blood money description, 7. How to treat with the offense of transpiring another’s property in case of repudiation of the conveyance by the owner.



Article

Governments Judicial Immunity and Their Property
Azim Sohrabi – Assistant to the Public Prosecutor General of Public Prosecutor’s Office, District 18
Second Part
The continuation of the last part about «Governments judicial immunity and their property».
Section Two – General Principles
Subject One- Basis for Governments Judicial Immunity
Subject Two- Methods for Putting Judicial Immunity into Effect
Clause One – Methods of Brining Action against Governments
Subject Three – Methods for Consent Expression Regarding Exercise of Judicial Competence
Clause One – Effect of Explicit Declaration of Consent
Clause Two- Effective Partnership in an Action before the Court
Subject Four – Counterclaims
Section Three – Possibility of Relying on Immunity in Special Actions
Subject One – Commercial Transactions
Clause Two – Exceptions of Non-Immunity Rule in Commercial Aid
Clause Three – Status of Independent Governmental Economic Institutes
Subject Two –Contracts of Employment
Clause One – Impossibility of Judicial Immunity in Contracts of Employment
Clause Two – Impossibility of Relying on Immunity in Special Cases
Clause Three – Inflicting Physical Injures & Damage to Property by the Government



Article

Effect of Death of the Convicted on the Prescribed Punishment in the Judgment
Ahmad Rafiei – Ph.D. Student in Law of Shahid Beheshti University & Deputy to the Public Prosecutor & Head of Public Prosecutor’s Office, Dist. 5 in Tehran

In this article, about the effect of death of the convict on collection of monetary punishment, the writer believes that as the punishment is imposed on the convicted himself/herself and not on his/her property so in case of non-payment, it changes into the imprisonment and imposing the alternative punishment on the heirs, it is not lawful; therefore if the convicted dies, his/her heirs are not liable to pay the alternative.



Article

Iran & France Civil Law on Advance Sale of Under-Construction or Unconstructed Apartments
Parviz Novin, Ph.D.

In this article, the writer mentions the lack of modern regulations about advance sale of apartments in Iran which has caused a remarkable volume of cases all around the country. He suggests that we are to pattern from France law and make a modern law in this field. As a result, it is recommended that for advance sale of the non-constructed apartments, by conclusion of contract, if the seller himself is the owner of the land, he shall transfer all his rights of the land and whatever is available from the constructed apartment to the purchaser and the purchaser is liable to pay its price gradually. In this type of sale, although transfer of the ownership takes place gradually, but the contract is considered as a possessive contract from beginning of its making. The seller should be owner of the land so that he can make such a contract or he may transfer the land rights and ownership to the purchaser of the apartment as an agent of the land main owner. So it can be said that in the first type contract, transfer of ownership begins by presentation of construction completion license and in the second type sale, transfer of gradual ownership is completed by presentation of construction completion license. It is evident that in the second type sale, there is no possibility of seller’s abuse of the situation such as transfer of apartment to the third party and if the seller stops the work for any reason (voluntary or involuntary), no loss is incurred by the purchaser because he has paid part of the total price and becomes the owner of whatever is available.


Crime Analysis
Presenting Plan & Secrets Related to State Domestic or Foreign Policy to Incompetent People
1.Mohammad Jafar Habibzadeh
2.Mahdi Houshyar

Crime of presenting plans, secrets, documents and decisions regarding the state domestic or foreign policy is of the instances of espionage which is provided in Article 501 of Islamic Criminal Law by the legislator. In this research carried out in analytical, descriptive method, the writers have dealt with this crime by common method of criminal law. First of all, the actus reus and its elements have been studied. Criminal conduct in this crime is a complex one (collection and presenting the information) which is in form of physical positive act and is done through presentation of plans, secrets, documents and decisions regarding the state domestic or foreign policy to the incompetent people or informing them of contents of the documents and decisions. Concerning the criminal result, the mentioned crime is an absolute offense and by mere committing the criminal conduct (collection and presentation of information), the crime is accomplished. Regarding the mens rea, the perpetrator has basic intention (collection of information and presenting them to incompetent people) and is aware of the fact that the documents and decisions are confidential and those who become informed of the contents of documents are incompetent.