نشریه نقد و تحلیل آرای قضایی
پیاپی 1 (تابستان 1401)

There are several years that we discuss, in Iran, the issue of reviewing or critisism of courts judgements. The situation looks so critical that we have to convene the meetings to express the objections and to write the books on the matter. Anyway, regardless of these circumstance, reviewing and analyzing court decisions is not only desirable but also necessary. Interpretations of courts decisions and jurisprudence are the basis for the natural evolution of legal knowledge. The courts enliven the so-called dry and soulless Acts of legislator in the body of cases. Law is not the only the Acts of legislator; Judicial practice and the practice of the courts are also sources of law. The courts are the testing ground for laws and their conformity with the realities of society, and of course this testing ground has its own rules, it is not a place of trial and error, nor a hotbed of dirt road desires and fantasies.

In the current situation of the country, economic issues and problems have gained high priority.Solving these problems should be pursued through the country's development programs.These programs must be drafted and approved in the form of 5-year laws. Draft of development plans is mainly done by individuals and institutions with economic and social expertise in the country.Usually, the legal and judicial aspects are not taken seriously in the development in the national development plans, and at most a chapter or a few articles of the National Development plan Act are dedicated to "legal and judicial affairs". While many "develop builder indicators" or "measuring developments" have a completely legal and judicial nature or function.For example, "protection of individual liberties" or "property rights" or "rule of law" and the like are significant indicators that are embodied in all national development plan or have an impact on them.These indicators are improved and promoted when the necessary legal enforcement mechanisms are foreseen. Handling more than 5 million unique cases and nearly 15 million cases that have usually been closed by issuance of a single judicial decision shows the existence of an enormous potencial for the impact of legal and judicial indicators in national development.Therefore, the role and the function of the judicial decision in realization of the developmental programs of the country, requires proper attention which will be referred to in here.

The present study aimed to criticize, examine, and analyze the binding precedent No. 652 of the General Board of the Iranian Supreme Court. According to this decision, since Article 529 of the Code of Civil Procedure of General and Revolutionary Courts repeals Article 690 of the Civil Procedure Code concerning the state's exemption from paying legal costs, the National Bank of Iran, as a government institution, is obliged to pay the court costs.In this article, the said decision has been examined and analyzed in terms of procedural and substantive rules.The objections and criticisms that can be raised in regard to this decision concerning adherence to procedural points in its writing have been listed and presented in seven sections.The substantive points and criticisms of the said decision have also been analyzed in eight sections.

The court’s judgment as a result of the judicial process, which reflects the arguments for the defense of the parties and the reasoning and argumentative efforts of a judge, should be analyzed and reviewed in depth in the context of legal theories and judicial precedent so that the strengths and weaknesses of each judgment are shown and the reasoning and inference processes of the judicial body of the country is strengthened.This critique and analysis can be performed by judges, lawyers and jurists, taking into account the legal basis, the related articles on statutes and legal principles and refer to both the form and style of making a judgment and the merits, theme and foundation of an argument. Critique and analysis can be in a position of rejection, nullification and negation of the procedural structure or a substantive theme of a judgment or they can be in a position of its approval and confirmation. In other words, criticism and analysis taking into account the judgment subject to review can have positive or negative aspect, as the case may be. Critique and analysis regarding judicial precedent can be related to a judgment handed down by a court or, on a higher level to a case where a judge insists on the validity of his previous decision despite the opinion of the Supreme Court, or even to a binding precedent; it is also possible that the subject matter of critique and analysis be judgments made by judicial or administrative authorities. What is of importance is that critique and analysis regarding judicial precedent, whether with the rejection and negation approach or that of the approval and affirmation, there is a view based on the reform and construction of the judicial procedure.Sometimes critique regarding judicial precedent arises out of criticizing the law; this criticism can eventually lead to the amendment of the law.

Researcher in the Iranian Law and Canon Research Centre, Head of the First Branch of Salehabad General Court and Head of the Salehabad Jurisdiction (Khorasan Razavi)In this regard, there are two general views on relevant articles in the Islamic Penal Code adopted in 2013, regarding the payment of blood money from the National Treasury in cases where the party inflicting an injury has fled without being identified. Some have considered the payment of blood money from the National Treasury in intentional felonies to be conditional on the identification of the perpetrator, while others hold the view that National Treasury has absolute responsibility for the mere occurrence of an intentional felony, even if the perpetrator is not identified.This disagreement in the courts led to two different inferences from the Act, finally leading the General board of the Supreme Court to get involved in this dispute and to practically end the existing conflict by making the binding precedent No. 790 dated 10/04/1399, and creating a uniform procedure in this regard.In this article, we shall review and evaluate the existing views and that of the binding precedent.

The correct interpretation of a relief sought has a significant role in the judicial process and the issuance of a judgment. In this note, an example of the civil judgment is examined from this perspective.In the decision in question, the relief sought is to establish the right of easement and remove an obstruction to an easement. In his judgment, the judge in his judgment considered the dispute as one over ownership. In addition, he wrote that the party who initiates a lawsuit regarding establishment of an ownership, not only in the same lawsuit, but thereafter, cannot file a claim regarding trespass and obstruction to an easement. Thus, relying on relevant articles of the Civil Procedure Code, the judge entered an order of dismissal. In this article, the court’ judgment has been examined in terms of procedure and substance.

The division of crimes in terms of the length of time of committing the crime is one of the topics discussed among legal scholars and judges, and there have always been differences of opinion in determining the examples of this division.This difference of opinion in practice has caused different judgments to be made by different branches of the courts, an example of this, which at the time of the writing of this article is a hot topic of discussion in legal circles, is determination of the instant or continuous nature of the crime of "making unauthorized change in agricultural land use mentioned in Article 3 of the Preservation of the Use of Agricultural Lands and Gardens Act".The General Board of the Supreme Court on June 21, 2022, while issuing a binding precedent in this regard, put an end to these differences of opinion among courts by considering unauthorized change in land use as an instantaneous offence.In this article, the said decision has been examined and analyzed from different points of view and certain criticisms have been made. According to the results of this research, although the result of the binding precedent handed down by the General Board of the Supreme Court to include the regulations regarding lapse of time from the date of the end of change in land use operation is acceptable, but there is a serious objection to a part of the decision in which it considers that crime as an instantaneous offence. One of the most important grounds for this objection is the lack of attention of the said decision to the examples of change in land use, which is common in custom and is foreseen in the regulations. Cases of change in land use are actions that cannot be carried out instantly and require a period of time no matter how short. In this article, while providing a definition of the types of crimes in terms of the time of their duraton, different points of view regarding the application of the crime of making change in land use - the subject of the binding precedent of the Supreme Court – are raised and discussed in regard to each of these crimes. In sum, it can be said that the crime of change in land use is a continuous and occurs over time, and from the date of discontinuity (the end of changing land use operation) is subject to lapse of time

The purpose of writing this article is to analyze and evaluate the decision of April 9, 2022 of the General Board of the Administrative Court of Justice regarding the annulment of a condition regarding "written commitment of 10 years of doing service without any condition" mentioned in the manual for the registration of the recruitment exam held by executive bodies.After summarizing the evidence and legal grounds used in the decision of General Board, the aforementioned decision has been analyzed by criticizing evidence on three levels of doctrine, laws and judicial precedents.

The binding precedent No. 794-99 handed down by the Supreme Court indicates that taking more than legal regulations by the bank as a condition contrary to public policy is not acceptable even in the form of Article 10 of the Civil Code.What is inferred from this decision is that the contract remains in force but the condition of charging extra interest is invalid.In this case, is it possible to conclude that on the assumption that the mortgage in question remains in force the rest of the effects of the contract, i.e. the issued writ of execution, the holding of an auction and the sale of collateral property is considered to be valid. Or is it the case that the above-mentioned condition annuls the writ of execution, and invalidate holding an auction in case it has taken place, and even the transference of the collateral property to the winner of the auction?This article pursues the examination of this issue by looking at some decisions issued.

There is as much discussion concerning implementation of regulations set forth in the Code of Civil Procedure regarding recusal of a judge during the enforcement of judgments as there is about the nature of orders and executive measures.In the aforementioned judgment, Branch 14 of the Supreme Court applies the rules of recusal of a judge both in the stage of enforcement of judgments and the establishment of the auction process, which is considered as one of the cases of expressing a previous opinion.According to the authors, the review of the judgment made by Branch 14 of the Supreme Court shows that although these orders and measures should not be considered as an expression of substantive opinion of a judge that prevents him from dealing with other claims about the same enforcement measures, this part of the judgment made by Branch 14, that correctly demonstrates the nature of entering an order of recusal, is affirmable.

Judgment is the most important output of a judicial system. It is the most valuable document and the most complete proof, reflecting the truth hidden in the case in question, especially if a decision is expressed in the form of a” judgment on the merits” on the case, decisively ends the dispute and expresses the judge's final opinion regarding the nature of the case (Article 299 of the Iranian Civil Procedure Code).This task has been given to the courts and it is the real mission and the main project of the Judiciary. Review of a judgment, delineating its strengths and sometimes its shortcomings and inadequacies, is the best assistance one can render the administration of justice.Based on this belief, I have gone to a judgment that is highly worthy of criticism. Non-existences, deficiencies, shortcomings and inadequacies are evident in this judgment.A Judgment that ends a dispute relying the efforts of multiple people through several original and ancillary claims, but fails in its main mission.In this short research, first the text of a judgment, then its writing inadequacies and substantive challenges are mentioned. In the midst of this discussion, the essential elements in making a magnificent, useful and worthy judgment shall be set forth.

The philosophy of the judiciary can be considered as providing justice, possibility of achieving it and the realization of rights in the light of correct and timely implementation of ratified law.This philosophy can be reached by proper proceedings and realized in the form of strong decisions in conformity with the law.A correct and proper judgment is one that it is based on evidence, supported by law and in compliance with procedural principles and rules.Accordingly, in this article, the judgment made by Branch 23 of the Tehran Islamic Revolutionary Court with the aforementioned characteristics has been analyzed with a critical eye and regardless of positive aspects.Not addressing the positive aspects of the report is because, firstly, it is outside the analytical and critical approach of the article, and secondly, it is in line with what is expected.The result of the above analysis indicates the existence of six structural problems, sixteen substantial problems, and several procedural and writing problems.Examination of the above problems requires the necessity of strengthening the system of in-service training and supervision of judicial authorities.