In The Name Of God
The structure and organizational structure of the Bar Association in the Bar Law
By: Kioumars Sepehri
Introduction:
With the publication of the power of attorney bill in the information base of the National Union of Iranian Bar Associations (ESCODA), which has not yet been determined, this bill has been prepared by the Ministry of Justice or the judiciary and at what stage of the preparation process. And it is legislation, and apart from the fact that such a bill must be drafted and drafted by the Bar Associations or at least a delegation of representatives of the Centers together with the representatives of the Judiciary, various criticisms and opinions have been written about it. It is in this direction.
Organizational structure of any legal entity:
The organizational structure of any legal entity can play an effective role in the continuation of its dynamic life. Given the role and importance of the judiciary in the implementation and generalization of justice in today's world, at least in principle and theory, both from an international perspective and from the point of view of domestic law of most countries, the independence of lawyers and the Bar Association is recognized as independent. The legitimacy of the Bar Association depends on what legal and executive solutions it provides, and how governments provide it, or how they limit this independence, and such discussions have been widely discussed and numerous articles have been written. Has been removed. But it is less common to discuss the guarantee of the independence of the center and the lawyer with an intra-organizational perspective and through the dynamism of its organs and more internal supervision and control. In this regard, considering the increase in the number of centers and their members and the cultural and social developments in the country and consequently the advocacy community, in the new advocacy bill, it is necessary to design and predict the organizations and pillars of the centers and their powers and duties. The greater the dynamism and health of the centers and the profession of advocacy, the greater will certainly play a significant role in maintaining the position of lawyers and their impact on the justice system. There is no doubt that one of the demands of the society is to represent them by lawyers in charge of the affairs of lawyers, as well as its members, both scientifically and practically, as well as morally and spiritually. The realization of this depends largely on the organizational structure and the anticipation of the necessary mechanisms in this field in the relevant regulations.
On the other hand, when the independence of the lawyer is rightly emphasized, one of its necessities is to provide and guarantee the independence of the equipment and conditions (such as science, experience, accuracy of practice, professional justice, observance of professional etiquette and ethics). Professional assignments and non-abuse of professional rights, etc., so how much better for the centers to guarantee these conditions themselves.
One of the necessary pillars in an independent organization is the existence of strategies for reviewing and monitoring the performance of the board of directors or the executive body of the legal entity. Inspection is envisaged, so the selection of inspectors along with the board of directors should be considered as one of the strengths of the bill and its benefits should be considered and discussed. Of course, it is necessary to specify the duties in the law in a precise manner and in accordance with the needs and wants and problems of the Iranian bar association, although the bill is silent in this regard. These tasks include:
A- Taking care of financial statements and verifying their accuracy and submitting reports to the General Assembly.
B- Examining the performance of the Board of Directors in terms of performing legal duties or leaving them, as well as the duties assigned to them in the General Assembly.
C- Commenting on possible violations and abuses of position and position by the members of the board of directors as well as their discriminatory actions.
D- Examining and supervising the resolutions of the Board of Directors and announcing its compliance or non-compliance with the legal standards to the General Assembly.
E- Reporting any misconduct in the center.
F- Reporting any action that would damage the reputation and credibility of the association and lawyers.
G- Examining the offices of lawyers in terms of observing legal duties and providing services and other legal matters.
It should be noted that in the current regulations and according to Article 5 of the Independence Bill, one of the members of the Board of Directors is selected as an inspector, it is not possible to achieve the objectives set for the inspection because this will be effective when measures are taken. And the implementation of the executive and powerful pillar of the board of directors should be examined and reviewed by another independent pillar in order to easily identify its strengths and weaknesses. In addition, the principle is that no one reports against himself or herself to his detriment, so there is no doubt that the existence of an independent board of directors is useful in every way, while with an inspector, the board is always self-sufficient. He is critical of his performance and feels more responsible than being a ruler, so he will be more law-abiding than authoritarian, which is one of the areas of growth and excellence of the center.
Another issue that needs to be considered in professional organization is the existence of a prosecutor's office and a disciplinary court. But what matters is the quality of the selection of the prosecutor and the members of the court, as well as the conditions for their election. Prosecutors and prosecutors and members of the disciplinary tribunal shall be elected by the Board of Directors in accordance with the current regulations. The prosecutor of the central association must be forty years of age and fifteen years of experience in law, and in addition to the center of the center, the prosecutor must have at least 35 years of age and five years of experience in law. With this quality, the prosecutor does not have real independence and is under the supervision of the board of directors, because his selection and dismissal is in the hands of the board of directors, which is not logical and is not correct in terms of democratic principles, because if the Bar Association Let's compare the government, the board of directors is the executive branch, and the prosecutor's office and the court are similar to the judiciary, which must have relative independence. On the other hand, the prosecutor and the prosecutor's office can have full success when they are not concerned with dismissal and installation by the board of directors and the execution of their orders. Therefore, it is necessary for the prosecutor to be elected by the members themselves. With this method, firstly, the issue of dismissal and installation is eliminated. Secondly, the prosecutor will be completely independent and will not neglect the decisions of the board members. Lawyers will be more qualified and their actions and decisions will be backed by their votes. Further: Most importantly, with this method, the prosecutor at least At the same time, he cannot be a candidate for the board of directors and will not be affected by the election issues and the votes of the members, and he will choose the deputies and the judges himself. In addition, by guaranteeing the independence of the prosecutor and having the support of the members 'votes, there will certainly be more authority and ability to prosecute violators and protect the rights of the members of the association, which will benefit both the advocacy community and the clients' rights. More reassurance that a lawyer selected as a prosecutor should be barred from membership on the board for a certain period of time in order to maintain greater occupational health. It is worth mentioning that Article 151 of the Bar Code states that the selection of the prosecutor by the board of directors is not an appropriate procedure. It should be noted that in some professional organizations, the prosecutor is elected by the above-mentioned method. For example, according to Article 21 of the Law on the Association of Official Experts of Justice, approved by the Islamic Consultative Assembly in 2002, the disciplinary prosecutor is directly elected by the members (General Assembly). Eligible candidates (such as the board of directors) are selected for four years.
In view of the above, Article 7 of the bill, which is in the position of determining the pillars of the center, has completely omitted and omitted one of the important pillars of the center, which is the prosecutor's office and the disciplinary court.
In addition, given that each independent society needs solutions that meet all its needs in terms of management and survival in a correct and principled way (in accordance with the goals, tasks and ideals of that society), in order to ensure each What's more, given the objectives set out in Article 6 of the bill, it is clear that Article 7 should refer to the Assistance and Training and Research Offices (or similar titles) as other pillars of each law, because important matters such as internships, probation, Holding training and specialized courses, scientific and practical conferences, educational workshops and lectures, preparing a plan The bills and bills for the board of directors and finally the referral to the National Center, cooperation with the parliamentary commissions and the representatives in the technical study of the plans and bills, etc. can be assigned to the Department of Education and Research. Also important are the management of matters related to the defense of persons in need in criminal and civil cases, as well as legal matters outside the courts (in which a significant number of people are not able to exercise their right, given that the complexity of the case is increasing). The main tasks of the Office of Judicial Assistance are: One of the important tasks of this office can also be to defend the rights of member lawyers in the relevant authorities, which may be violated in various ways or be prosecuted on wrong charges.
He adds that according to Article 34 of the Code of Advocacy, the organization of assistance is provided for in the organization of the Bar Association.
In addition to the above, in order to complete the duties and expectations that exist from the Bar Associations, it is necessary to add the following clauses to Article 6 of the bill:
A: Protecting the rights of member lawyers and defending members (if required and requested) by the relevant authorities.
B: Maintenance and management of the property and rights of the center.
It seems that another necessary mechanism for the independence of the center is the formation of the Supreme Court and the Supreme Disciplinary Court in the National Center, which deals with disciplinary violations of members of the disciplinary courts of provincial centers, as well as violations of prosecutors and prosecutors, as well as inspectors and members. The boards of directors of the centers and members of the General Assembly and the Executive Council of the National Center can be assigned to this prosecutor's office and court, and special conditions for the prosecutor and its members (in terms of the number of members and their records) can be considered. The appeals of the disciplinary courts of the centers are also among the duties of this Courts should be. In this case, the investigation of the violations of the prosecutor of the National Center and his deputies and the members of the disciplinary court of the National Center is with the Supreme Disciplinary Court of Judges. In this way, both the work of the prosecutor's office and the Supreme Disciplinary Court of Judges are reduced, and the principled and logical order of the disciplinary authorities of the Bar Associations is maintained. It is worth mentioning that in other professional and trade union organizations, there is a system of law enforcement authorities similar to the one mentioned above. Also, the jurisdiction of the lawyer (subject to Article 179 of the bill) can be assigned to the Supreme Disciplinary Court of the National Center.
Also, considering the nature of the work of Bar Associations and the experiences and expertise of many of its members, other duties of Bar Associations include establishing and managing arbitration institutions and encouraging lawyers to judge. This can be done in line with other sectors in order to privatize, decentralize, expand non-governmental governance and reduce the burden on the judiciary, the elaboration of which will prolong the speech.
Another important point in order to observe the principles of democracy and prevent the problems caused by individual authoritarianism is that, as far as possible, the duties of the board of directors should be performed collectively and in groups, so that in some materials of the bill, All the duties and powers of the board of directors have been delegated to the head of the association, and will not have the desired results. In addition, in group management, the principle is to perform the task collectively. Of course, in the bylaws, the necessary mechanism and details of the case should be determined so that both the interaction of each member with the group is clear and the level of his activity, creativity and initiative in the board of directors. Other issues that can play a role in the development of lawyers' promotion and excellence are the discussion of grading lawyers (according to the history of advocacy, education, experience and work records, etc.), the correct implementation of which can be a positive point. This is the bill. In this regard, it is more appropriate to consider the necessary tests and issues such as this in order to be promoted to a higher level, to be tested or during training courses and to participate in retraining classes and to obtain the required points. In addition to the above, the presentation of correct performance and adherence to professional and ethical principles should not be forgotten, but the relevant rules and regulations (so that it can be recognized in practice) should be specified in the regulations.
What has been said above is only about some of the issues raised in the bill, which are very brief. It is hoped that experts will explain all aspects of the case.