In The Name Of God
Review of the new wage tariff decision of the official experts of the judiciary
By: Kioumars Sepehri
Introduction:
With the development of societies and industrialization and population growth, various issues in social relations are raised, many of these issues are complex and specialized, disputes or crimes related to these matters will be complex and technical due to the principle of the issue, on the other hand. Although many of the issues and disputes that arise in litigation are clear from the point of view of jurisprudence and the verdict of the case, it requires the expertise and experience of an expert to determine the extent of the right or time of its occurrence or the validity of a party's claim. This person is an "expert", the importance of the role of the expert in cases, both in civil and criminal matters, is increasing day by day, so that sometimes in a case, the death and life of a person may depend on the opinion of an expert (for example, in Murder cases) Or that the honor and dignity of a person for several decades with the opinion of an expert is preserved or destroyed or a personal property is given to someone else and so on.
Of course, in the past, "jurists have long recognized the importance of expertise, because sometimes judges were forced to use it to investigate the reasons given and to know the actual statistics and even to understand the will and defense of both parties to the lawsuit." For example, ask a language expert to translate the claimant or defender, or ask an architectural expert to determine the area or price of the land, or to extract and draw conclusions about the allocation or sharing of the wall between the two properties. The expert's contribution to the purification of the right and the flow of research goes beyond that, science and experience are overshadowed by the manifestations of life. He is also a thinker and a servant of justice.
Therefore, it seems that the importance of expertise is not hidden from anyone, and in fact, science and experience are at the service of justice, so that the right is easier to determine, so that in many cases it is the expert who judges and the core of the ruling is the expert's theory. It can be said that the expert judges indirectly.
On the other hand, out of the cases of the judiciary and judicial authorities, in some important matters such as buying, selling, renting, renting, the fate of important government and public transactions is somehow in the hands of an expert.
Considering the above, considering the role of the expert and their observance and his status seems to be one of the necessities of today's society in our developing country. And the salary tariff of the official experts indicates the level of attention of the esteemed judiciary to the role of the expert, and by examining and reflecting on it, it is determined whether their judiciary has respected the status of the expert or not!! .
Topic 1: Legal and formal objections to how to approve tariffs and some of the issues raised in the Charter of General Regulations There are cases that are contrary to current regulations:
A: The need to review and approve the proposal of the High Council
As stated in Article 29 of the Law on the Association of Official Experts of the Judiciary: "The salary of an official expert is in accordance with the tariff proposed by the Supreme Council of Official Experts to be approved by the head of the judiciary and can be appealed for both years."
Therefore, what the law stipulates and has been done so far is that the proposed tariff will be considered by the esteemed head of the judiciary, who will either approve it or, for some reason, consider it invalid. What has happened with the new tariff does not seem to have happened, and it seems that the proposed tariff of the Supreme Council has been first amended in the organs of the judiciary and then has reached the opinion of the esteemed head of the judiciary. Has been handed over to the head of the judiciary, and the same has happened in this case. In response, although the authority to approve is with the head of the judiciary, the law states that the proposal of the High Council of Experts will be approved, not the proposed amendment of the High Council. On the other hand, it seems that if the esteemed head of the judiciary considers the proposal of the Supreme Council to be presumed to have objections and problems, considering the context of the provisions of the law and considering the background of the cases in some cases Similarly, given that the tariffs are related to the experts of the High Council, headed by their organizational and trade union organizations, and taking into account the laws and regulations that have allowed the regulation of working conditions such as the present case, it should be amended. He would reconsider his advice to the Supreme Council, and the Supreme Council would make the right decision.
Obviously, if we have any other interpretation, no effect on Article 29 would be borne by the Supreme Council of Experts, and in fact there was no reason for the legislature to enact Article 29 of the law in this way, for example, to impose expert fees at tariffs. It is the one determined by the judiciary or according to the tariff set by the judiciary after obtaining the opinion of the Supreme Council.
In addition, in terms of the interpretation of the sentences and words of the law, it should be said that anything other than the proposal of the Supreme Council should be reviewed and approved by the esteemed head of the judiciary.
Another important issue is that the legislator has demanded that the organizational and trade union issues of the experts be in the hands of their highest trade union body, and that the control role of the judiciary should be maintained, not that everything is in the hands of the judiciary.
Therefore, with the strictest interpretation of this case, at least it can be said that the judiciary should not have made a fundamental change in the proposal of the High Council, and if the opinion was to change, the proposal should have been returned to the High Council, because something That is to say, the proposal of the High Council should be made, not the issues that are fundamentally different from the proposal.
This is similar to Article 91 of the Constitution.
B: The authority of the judicial authorities in how to determine the salary
Pursuant to Article 29 of the Law on the Law of the Center for Official Experts of the Judiciary, judicial authorities will act on the basis of expertise in accordance with Article 264 of the Code of Civil Procedure of the General and Revolutionary Courts. The article also stipulates: "The court shall determine the expert's remuneration by observing the quantity, quality and value of the work. Whenever it becomes clear after the expert's comment that the determined remuneration has not been proportionate, its amount shall be determined and "He orders it to be collected."
Therefore, it is not in accordance with the law to bring judicial authorities to the ranks of ministries and government agencies, and in Article 2 of the Resolution and their obligation to determine wages based on tariffs, unless we consider this article only as a recommendation and proposal for judicial authorities. This is also true of Article 3 of the resolution.
He adds that although in practice the judicial authorities consider the tariff approved by the esteemed head of the judiciary as a criterion for their work, this does not mean that they are required by law. The same article also existed in the previous tariff resolution. However, in 1993, the President of the Judiciary paid attention to this point in implementing Article 19 of the bill of independence of the Association of Official Experts, and in Article 2 of the tariff, it was stated: "They determine the law, and if necessary, the tariff rules can be used as a criterion for calculating it."
It may also be argued that Article 2 of the Decree refers to judicial authorities, but Article 29 of the Law defines "judges of the courts", so the address of Article 2 is different from that of judges of the courts. It did not, and since all matters were handled by the courts, for this reason Article 29 referred to the judges of the courts, and this could not justify the case.
C: Expert salary in group work
Article 5 of the decree stipulates: "In cases where the subject of expertise is done by several official experts, each of the experts will be paid a part of the full expert's salary in one case, provided that it is not less than the minimum expert's salary for one person." It seems to have no legal basis, and it is the exact opposite of what was proposed by the High Council, and in the previous resolution it was what the High Council proposed, that is, each of the experts was entitled to a full salary, because in this case. Experts, each expert alone actually does the whole thing, albeit in one in order to avoid problems, experts say that this does not mean dividing the work and dividing the work between them, so that it is approved that because each of them does a part of the work, then a wage between They are divided. Therefore, given that each expert is responsible for his or her own actions and responding to the consequences of the theory, and given that the Muslim's actions are respectable and that everyone deserves to be rewarded for their actions, there is no reason to do anything. A portion of the wage and the wages to be paid. It may be said that in group expertise, a job is done, and in some cases one of the experts does the work and effort, and issues of Like this .... In response, it should be said that, first of all, although in appearance it is a work, but in fact this is done by each of the experts and the work is not part of the work (except in special and rare cases where the ruling is different). Second, assuming that there are cases in which a number of experts violate and actually delegate their duties to one of the experts, this does not mean that the principled and correct work of the general experts is ignored, and with the correct experts, such as experts. Violators of moral, trade union and legal duties.
D: Unpaid or reduced expertise
The second and third notes of Article 2, which oblige experts to perform free or reduced expertise, do not appear to be documented in law, although such a regulation is necessary given the state of society, and in practice its own experts generally do. They do the same thing. But for a legal requirement, it seems that it requires the adoption of other rules for which a framework and criteria will be determined, such as that if the applicant succeeds in the lawsuit, he must pay the costs and ... After the execution of the sentence, he pays the expert's fee. He adds that it seems that the Supreme Council can and will Give its duties and powers and the goals and objectives of the centers, it determined or proposed rules in this regard, and experts, given that the systems determined by the council are necessary to advance the goals and perform their duties, follow the rules. It is necessary for them. However, this is not taken into account in the proposal of the High Council, and on the other hand, the amounts considered in the tariff in a significant number of cases are such that the fee is practically spent on preliminary expenses. Expertise such as travel, preparation of documents, telephone communication, etc.
E: Distribution of expert work and dispute resolution
In order to distribute expert affairs and resolve disputes over how to calculate and interpret tariff materials and adjust the amount of expert's fees with the amount and type of work, the resolution has been considered as repeated by Article 10 (2) and commissions under Article 15 (3). It is not documented by law or regulations. The distribution of expert work is not a matter for the government to intervene. Be one of the representatives of the government. In addition, if the purpose of distributing work among the official experts of the Association of Experts and Experts is the subject. According to Article 187 of the Third Plan, this is not in accordance with Article 18 of the Law on the Association of Official Experts and other current regulations (although the expertise of the judiciary is another issue that will be used by both groups). A part such as the difference in the method of calculating the salary and the Rials issues of the tariff should be left to the Article 13 Commission (which is of high dignity and has high duties). The law of the Association of Official Experts seems to be in addition to its dignity. Capturing that commission is one of its highest duties and goals. In addition, trade union and professional affairs should be The people have left the same profession and class, and there is no need to leave it to high-ranking officials and judges who must perform and perform the high duties and interests of the government, and the dignity of these officials should not be underestimated and entangled in these unimportant matters. However, if the commission determines the amount, the applicant (usually the executive branch) or the expert is dissatisfied, he can apply through the judiciary and it is unlikely that the judiciary will be able to review the nature of this case. To refrain from commenting on the commission's case, however, these matters are not so important that they need to be investigated. It should be the pillars of government and, in principle, logically and rationally, it is in the competence of the organizational and trade union organizations of experts.
F: The provisions of the decree, in the current situation, cause a sharp decrease in the income of the centers of experts and the Supreme Council, and in practice make the centers and the Supreme Council in trouble, because the income of the centers is from 5% of the experts' salaries. However, the centers and the Supreme Council, with a reasonable income, will be better able to perform their duties, which are ultimately to advance the set goals (including the scientific and practical progress of experts through education and control, etc.). Determining a reasonable tariff also generates revenue for the government (through expert taxation).
Topic 2: Corresponding to the unrealistic nature of some tariffs
According to Article 29 of the Law on the Association of Experts, the tariff for experts will be approved by the Supreme Council of the Judiciary upon the proposal of the Supreme Council of Official Experts. Both years can be reconsidered. It has not been, attention to the realities of society and the state of the economy and inflation and the devaluation of money and the value of specialized services of experts and the great impact and determining role of expertise in many cases and ... has certainly been considered by the legislature. It is related to the year 1999 that due to inflation and the value of the Rials and other aspects, it was necessary that very soon It should be reconsidered. Apparently, due to the changes and developments resulting from the adoption of the new law and some of the existing problems, no official proposal will be sent to the judiciary until Jun 7, 2005 and the proposed minimum tariffs will be included in the proposed tariff. The tariff for 1999 will be almost doubled, for example, the extraordinary mission for each day, which was 125,000 Rials, will increase by 250,000 Rials, or at least the fees of many undergraduate courses, which amounted to 200,000 Rials. / 500 Rials increases, and this is fair and reasonable considering the amount of inflation and purchasing power of Rials, although in real terms this increase is less than m Inflation rate and the amount is intended at least in terms of purchasing power was equivalent to the amount in 1378. Nevertheless, the relevant authorities respected the judiciary, the increase is reasonable and fair, and at least ignored and The smallest increase has not been allowed even in the case of insignificant minimums, and even the extraordinary daily mission has been set at the same amount of 125,000, or the equivalent of the amount received by a skilled worker under normal circumstances (not in high-wage areas). In addition, from another point of view, when the law explicitly considers the tariff to be revised every two years, it seems that the minimum change and increase is a kind of obligation and an appeal that has been done after about five years. And the changes that have been made, it has been necessary to increase it, although the increase is very small, and if the review of the change is made by the force. The honorable judge denied that he was more defensible in any way than to make changes, but that there should be no increase in the amounts.
However, although the main goal and motivation of the relevant officials of the judiciary has been to approve the existing decree, serve the people and facilitate judicial and legal services and help the people, and this goal and idea can be defended and appreciated. Probably another aspect has been the idea that experts' salaries are disproportionate and their income is high through expertise, but considering the following, more facts will be identified and the above assumptions will be debatable:
A: Expert position in cases and the importance of the role of the expert and creating the ground for justice
Needless to say, a significant proportion of cases and rulings revolve around the expert's point of view, and in fact the core of the case, and even the verdict, is what the expert presents to the court or the investigating authority as an expert theory, for example. : Cases such as forgery, embezzlement and abuse, identification of the registration plate and its limits, determining the culprit in accidents and accidents caused by work, proverbial compensation, determining damages, violating the obligation, adjusting the rent, etc., therefore, can be He said that in such cases, judging and judging the case is with the expert, and based on this, paying attention to the role of the expert is very necessary and even in some cases. His role is more prominent than that of a judge, so to have an ideal judicial system in accordance with Islamic justice, one of the most important and effective cases is the use of the services of specialized, technical, fair and accountable experts, and therefore it is necessary. The judiciary needs to take steps in this direction, and there is no need to explain that determining the appropriate wages and paying the real requirement of knowledge and experience of experts is one of the important components to attract specialized and fair experts and should be done in such a way that Expert work and justice should be maintained more, and experts in the world should be more interested in expert affairs, not now. Action so that good people turn away and use and abuse and provide work unhealthy and indifference.
However, despite the selection of judges and the strictness of recruiting committed and responsible individuals as judges, the judiciary has taken into account the rights of judges to ensure their fairness and the administration of fair (and fair) justice, and to ensure the minimum. Their needs have been met (although there is still little fit between their responsible work and their hard work with the benefits paid to them). There is an expert's work with the amount of salary paid to him. It is obvious that the expert may have other income. However, the requirement of justice and rational axioms is that everyone receive their wages and this has
nothing to do with other issues, just as the rule of sanctity of Muslim practice confirms this.
B: The effect of proportional wages on shortening the proceedings
Although at first glance, it is thought that the low salary of the expert is in favor of the plaintiff or the plaintiff or the other party, but this is not always the case, because the low salary is one of the factors that make the expert careless in doing the job. As a result, the adjournment of proceedings will not be ineffective, nor will it be ineffective in the quality of work, and this is one of the issues and grounds that will refer the matter to various expert committees. His wages are paid fairly, he certainly spends more time, and perhaps in order to justify the parties and convince Anna. It reserves the right, in its sole discretion, to refrain from continuing the dispute and to refrain from repeated skirmishes (which take up the time and money of the parties and the court). Instruction No. 1 of the Comprehensive Judicial Amendment Plan approved by the Judiciary (Official Gazette No. 17687 dated November 22, 2005) to resolve disputes through experts and ultimately the efforts of experts to agree and resolve disputes on issues that are specialized. Is.
C: The need to create economic and judicial security and reduce justice cases
To create the context of economic security (which leads to more employment and economic prosperity and ultimately reduces social problems such as poverty, etc.), is certainly one of the grounds and causes of judicial security. Judicial security by administering justice in all fields. The adoption of regulations is based on the situation of the society and those covered by the regulations, and with the correct and deliberate implementation of laws and the elimination of grounds for violation and breach of covenant, therefore, a method must be adopted that economically violates commitment or contract and non-implementation of rights. It should not be cost-effective for a person who thinks of violating and deviating from his duties, and accordingly, a person who has violated the covenant should do so. It pays for its violations, and one of these costs is usually the cost of expertise. Encouraging them to file a lawsuit and ultimately delay the realization of the right and the density of cases and increase government spending, in addition to condemning the violator to pay damages, including expert and attorney's fees, as well as damages for delay or failure to fulfill an obligation. And the damages caused by the delay in the payment and the devaluation of money due to inflation are part of the claims of the plaintiff, whose claim was justified. One of the consequences of this is the reduction of lawsuits and the standardization of the volume of cases and the opportunity of the authorities to handle the lawsuits and disputes more accurately. Another and….
D: Low income of experts
One of the reasons why the judiciary does not increase the amount of experts' wage tariffs may be the assumption of high incomes of some experts. One hand is honest. Secondly, very, very few experts in these fields may find this situation. Thirdly, a small number of people who are also in a few specific fields can do this in several large cities (Tehran and some provincial centers). However, this revenue is generally through the executive branch, and there is no reason for that revenue to be transferred to the judiciary and the like.
Therefore, the restriction and non-payment of real salaries of a few thousand people due to a maximum of a few tens of people, and the comparison of all experts with that small number, cannot be fair and it was very appropriate for the judiciary to think of better solutions. The ceiling for referral of work by government and public authorities to any expert, such as that the justice desired by the judiciary was realized.
E: The need to match wages with experience and expertise and type of work
Some of the amounts set in the tariff are not very low and even comparable to job services that do not require any education or training, for example: the fee for determining the cause of the accident is set at 150,000 Rials, let's say in the city. Tehran is an expert resident of Ekbatan town and the accident took place in the police station located in Hakimiyeh town of Tehran Pars, how much time should be spent on commuting and examining the case (and special police problems and wasting time there) and considering the vehicles and Examining the scene of the accident and listening to the statements of the parties, witnesses, informants, etc. يك is a matter, and requests and bribes and Possible advice and other issues that waste the time and experience of the expert's mental and psychological well-being are another matter. If the expert uses a telephone taxi car, a large part of the salary should be allocated to this, of course, legal deductions (taxes). And there is also the share of the experts' association. Now compare this amount to a simple repairman. Certainly, in a city like Tehran, a repairman with such a salary will never be willing to move from his job with this situation for a simple job. However, this person may not have a technical or educational education for even a few months. Therefore, it is clear that the amount set as expert minimums (which in most cases is the criterion for the work of the reviewing authority) and the amount set to provide a reason or super daily is in no way commensurate with the education, expertise and experience of experts. That the evaluation of science and expertise and experience is the obvious and the best ground for doing the right thing and regulating social relations.
The custom of judicial authorities in determining wages may be that the amount specified in the decree has a minimum and maximum, and the judicial authorities, depending on the employment situation and the subject of expertise, determine the appropriate amount, in response to which this case, although from In theory, it is completely incorrect and inviolable, but in practice this is not the case, and certainly everyone (whether the esteemed officials of the judiciary or respected experts and judges in various authorities) knows that, together with the judiciary, at least consider and In a significant number of experts, the minimum wage is set at a minimum or the same minimum. Yin or with a slight increase in the minimum, they issue an expert order. It is inferred that the esteemed judges think that these minimums are determined based on real and economic criteria and expertise. Therefore, they use it as a criterion for their work. Therefore, the most important issue in the tariff decree is the fairness of the minimum wage, which is currently not commensurate with the economic situation and the real value of the work and expertise and experience of experts.
The end point
In view of the above, it is appropriate for the esteemed authorities to take action as soon as possible to amend the resolution so that one of the grounds and aspects of the expansion of justice and the implementation of the right can be realized more and better. It should not be overlooked that in addition to the fact that the standard of living and well-being of the people has been constantly improving and income has risen and our dear country has progressed, many specialized issues have become unresolved, so everything related to the judiciary must be done. It should be seen as more specialized and part of the whole society to provide more security and social order, and to make it easier to assert its rights, and ultimately as a factor in progress in a world that is counting on moments and has become a global competition. We did not fall behind as much as we could in our country.
And God knows best
PS:
This article was written in early 2006 for the journal Karshenas.
(1) Journal of the Faculty of Law and Political Science, University of Tehran, No. 62, Winter 2003, Dr. Nasser Katozian, Professor of the Faculty of Law and Political Science, University of Tehran
(2) Repeated Article 10: In order to do justice to the Commission's expertise consisting of 3 members: 1- Representative of the Center of Official Experts of Justice 2- Representative of the Center for Legal Advisers, Lawyers, Judges Experts Distribute referrals.
(3) Article 10: In case of disagreement on how to calculate wages, interpretation of articles of this tariff and also in order to adjust and create a fit between the amount and type of work of the expert with the fee, is determined if the legal fee of the expert according to the regulations and tariff More than ten million Rials. The matter should be raised in the commission provided for in Article 13 of the Law of the Center of Official Experts of Justice, approved in 2002, to comment on the amount of expert fees. The esteemed judiciary will be definite and for the applicant to perform the selected expert and expert It is binding. Government agencies, organizations, government-affiliated companies, municipalities, institutions, and public institutions will not be allowed to pay more than what is specified in the said commission, and violators will be dealt with in accordance with legal standards. (Quoted from the official newspaper No. 17626, dated September 30, 2005).