Abstract
The following questions were discussed in the round table, and the commission votes as follows:
459- With the supposition of the death of defendant after issuing absent vote and protesting by the heirs, if the protested verdict finally gets certain against the heirs, is it possible to apply article 2 of the Execution of Financial Convictions’ Law against the heirs?
Opinion of Minority of Votes of the Members in the Session
Whether the heirs accept the inheritances, according to the text of article 248 of Non-Litigious Matter Act, each one would be responsible for paying their debts regarding their shares and if in this regard, the heirs get convicted to pay the debts of their bequeather to the creditor and refuse to pay the debt upon the issuance of writ of enforcement, it would be the subject of article 2 of the rules of the Execution of Financial Convictions’ Law issued in 1998 regarding its hereunder note. According to the note following article 19 of the law of the Association of the Official Experts which states that cases in which transactions requires the assessment of the fair price by an official expert, the proposed opinion will be valid for 6 months from the date of its issuance. Whether the mentioned governmental institution refuses to pay the price to the proprietor; the expert’s opinion must be taken again and it should be performed on its basis.
Opinion of Majority of Votes of the Members in the Session
There must be 2 conditions for a person in order to apply article 2: 1- the person must be the losing party. 2- He must be responsible for the payment. Therefore, if someone is responsible for payment but unlike the heirs in case of acceptance of inheritance is not the losing party, then it would not be possible to apply article 2.
460- If in some cases the original document does not exist, is it possible to hold the charge of the document’s forgery and using the forged document?
Opinion of Majority of Votes of the Members in the Session
Only destroying the document which is object of the claim of forgery does not prevent the hearing and gathering evidences. The source of hearing must express his opinion after enough researches and attaining proofs which can be gathered for the forgery charge or using forged document. Expertise is for comparing the forged writing and signature with the writing and signature of indisputable genuineness and in the absence of original writing and signature it cannot be enforced.
461- Someone is under prosecution for forgery charge and in detention for not introducing the acting, then for the charge of using forged document the mentioned writ is aggravated and changes into bond and releases after giving security and after hearing the aforesaid person is acquitted from the charge of forgery but put in jail for other charges, does the time of detention can be counted?
Opinion of Majority of Votes of the Members in the Session
The time of detention before the issuance of verdict will be counted although the losing party is under detention for another charge in the same case but the point is that the charges must be in the same case and not in different cases.
462- Auditing the breach, subject of article 13 of amendatory of eatable and drinkable stuffs’ Law issued in 2000 is of the competence of which source?
Opinion of Majority of Votes of the Members in the Session
Before enacting article 22 of Consumers’ Protection Law, according to article 13 of the Eatable and Drinkable Stuffs’ Law, guild breaches were tried in the public prosecutor’s office but by enacting the mentioned article which is latter and special; these breaches are tried by the governmental discretionary punishment courts and are under the competence of the governmental discretionary punishments. Of course sometimes breaches, subject of article 13, are considered as threat against public hygiene, subject of article 688 of the Islamic Criminal Law which with such upposition public courts are competent for hearing.
463- Is the petition of loss and damage from crime if presented by respondent before ending the protestation hearing to public criminal court, auditable?
Opinion of Majority of Votes of the Members in the Session
Although the protesting stage is the continuation of the primary stage, but regarding the fact that according to article 11 of the Law of Public and Islamic Revolutionary Procedure in criminal matters issued in 1999, the claimant can raise the loss and damage petition before ending the trial and because the absent verdict is verbal to the claimant, then the claimant were supposed to raise his petition to the court before ending the trial, so in protestation stage which is
after ending trial in the primary stage, raising the petition of loss and damage is not acceptable.
464- In case of permitting the re-trial of a criminal verdict by the Supreme Court, is an equivalent court competent for trying the petition of loss and damage of a crime which has been issued along with the criminal verdict?
Opinion of Majority of Votes of the Members in the Session
Upon the acceptance of the request for re-trial after completing the formalities, with this condition that the Supreme
court has mentioned the re-trial without stipulating to audit the criminal matter, the court is bound to try both the civil and criminal matter together and presenting or not presenting a petition is not considered as an obstacle.
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