Editor in Chief"s Note

In this issue, the editor in chief congratulates the New Year and wishes a good year for the dear readers, and then mentions the spring message of head of justice administration of Tehran Province:  The justice administration head thinks that there are 12 notes that are the important principles which shall be observed by the judges. Hereby 2 of them are mentioned as the most important ones: First - Honesty and fair behavior of the directors with the other colleagues Second - Independence and bravery in decision-making

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Selection of Latest Legal Approvals

By-Law of Judicial Register

Law for accession of a Clause and a Note to the Article (1) of Penal Code of saboteurs in the state economic system approved in 1990 and amendment of Note 1 of Article 2 of it

Law for Market of Negotiable instruments of the Islamic Republic of Iran... 

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One Vote, One Experience

Judgment No. 222 dated Aug. 27, 2005, drawn up by Branch 35 of High Court in the position of dispute settlement in competence between branch 8 of Court of Appeals of Tehran Province and Branch 3 of Court of Appeals of Isfahan Province:

- Revision of the issued verdicts in the geographical realm of one province is performed in the court of appeals of the same province. 1. Judgment No. 640 dated Aug. 4, 2001, drawn up by branch No. 217 of Tehran Public Court regarding condemnation of the accused on the charge of breach of trust

2. The amended judgment No. 244 dated May 18, 2002 in relation with Judgment No. 640, drawn up by Branch No. 217 of Tehran Public Court

3. Judgment No. 1625 dated Sept. 15, 2002, drawn up by branch No. 8 of Court of Appeals of Tehran Province; ÒIssuance of writ of incompetence of Khomeinishahr Public Courts« 4. Judgment No. 3843 dated Dec. 28, 2002, drawn up by Branch No. 1 of Khomeinishahr Public Court: ÒIssuance of order of discharge of the accused regarding the accusation of breach of trust« 5. Judgment No. 2358 dated Feb. 27, 2005, drawn up by Branch No. 3 of Court of Appeals of Isfahan Province: ÒIssuance of writ of incompetence of Branch No. 8 of Court of Appeals of Tehran Province«  6. Judgment No. 35/141 dated July 4, 2005, drawn up by branch No. 35 of High Court: ÒConcerning non-realization of dispute in the current status «7. Verdict No. 674 dated Aug. 3, 2005, drawn up by Branch No. 8 of Court of Appeals of Tehran Province: Òconcerning dispute in competence with Branch No. 3 of Court of Appeals of Tehran Province«

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Article

Banglor Principles about Judicial Behavior,

Approved in 2002,

ÒDraft of Banglor Rules of 2001 about Judicial Behavior,

Approved by the Judicial Group of Strengthening of Judicial Integration,

Amended by Sessions of Heads of the Judicial Systems, Peace Palace, The Hague, Nov. 25-26, 2002«

At the first session which was held by invitation of Center for International Prevention of crimes of the U.N. in Vienna and simultaneous with the 10th session of the U.N. Congress concerning prevention of crime and misdemeanants treatment, necessity of a law by which the judicial authorities behavior can be evaluated, was recognized and confirmed. ÒAnyone has right to enjoy fair investigation in an independent and neutral court« is of the fundamental rights of the individuals announced by the Universal Declaration of Human Rights.

ÒAll the people shall be equal before the courts and in decision making anyone has right to enjoy a fair investigation without any unjustified delay in an independent and neutral court convened by virtue of lawÓ: International Agreement of Civil and Political Law. The above principles and constitutional law were inserted in the documents of regional human rights, domestic constitutional laws including objective law and common law and in the judicial treaties and traditions.

The importance of competent, independent and neutral judicial system in the support of human rights is emphasized in the direction of this fact that exercising other laws depends to correct execution of justice.  If the courts want to play their role in the support of constitutional law and sovereignty of law, existence of one competent, independent and neutral judicial system will be necessary.  The six principles are: 1. Independence, 2. Neutrality, 3. Integration, 4. Correct Behavior, 5. Equality, 6. Ability and Perseverance   

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Writing Criticism of One Verdict

Mohammadreza Khosravi

In this issue, the writer sets forth a verdict inserted in the newspaper due to unknown address of one of the accused persons on Sept. 25, 2005 and then criticizes it. Some of the critic points are as follows:

- The word Òhonored« in the phrase of Òthe honored bus company« is not correct because in the verdict, using the word Òhonored« for any party to the case is not fair and we are entitled to use the official name of the legal entity and the word ÒMr.« or ÒMs.« for the natural entity.  

- Phrases of ÒIslamic Government Fund« and ÒIslamic Government Treasury Fund« are not sound. Are there really such funds?

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Historical

Dear Mr. Golshaeian!

In spit of the fact that you do not believe in propaganda and the press and the public opinions É.but accept that the press has had an effective role in your victoryÉ..it is appropriate that from now on you permit the press that they give opinion concerning the amendmentsÉToday people wait for your appointments more than anything else and there are many gossips regarding dismissal of a number of people and appointment of the other group and this is the important subject your attention shall be drawnÉ

Mr. Golshaeian, believe that the judicial personnel of this blooming justice administration are inclusive of the experienced and informed judges, 95% of which are naturally fair, honest and informed of the judicial affairs and as they become sure that the minister of justice wants the judges to be honest and fair not execute order of discrimination and exercise influence, the ones who deviate due to influence of position and money will be led to the honesty and truthÉ

So we think that you shall not be influenced by pessimism and optimism in the appointments and dismissals of the justice administrationÉ

We do not want to defend the judges but we believe that the environment and manner of work, especially process of the ministers of justice have been effective in the work status of the justice administration judges.

Dear readers, I hope you forgive us for the publication of erroneously historical in the last issue of the magazine that hereby the historical of last issue is corrected and submitted:         

This part is inclusive of two memories that are narrated by Mr. Hashem and are about the judgeÕs dignity and law-centered system, one of them was occurred before Islamic Revolution of Iran regarding the deceased Mr. Abdolali Lotfi, Minister of Justice of the deceased Mr. Dr. Mosaddegh, and the other one was occurred  at the beginning of the Victory of the Islamic Revolution of Iran concerning Mr. Ayatollah Dr. Beheshti, the highest Judicial Authority and Head of Supreme Court.

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Around the Table

The following questions were discussed in the around table, the commission majority or unanimity of votes are as follows:

334- With respect to the provisions of Article 10, repeated, of law for the apartments ownership, can director or board of directors of the building take measure regarding demand of the common charges directly by submission of the petition? 

Opinion of majority of votes of the members of the current commission in the session dated June 23, 2005

Director or board of directors of the building for collection of the common claims can take measure even without sending declaration, directly or by submission of petition because Article 10, repeated, of law for the apartments is a legal privilege and this legal privilege does not negate the ordinary method of collection of the common claims which is the same submission of petition.    

335- Is purpose of Note 3 of Article 6 of Law for quality for taking attorneyship (advocateÕs) license is that trainees lawyer have no right for acceptance of actions which their revision authority is supreme court or prohibition provides for non-practical interference in the court, how about the acting head attorney?

Opinion of unanimity of votes of members of the current commission in the session dated June 23, 2005

With respect to the provisions of Article 233 of criminal procedure code, new, it is no doubt that trainees lawyer have no right for acceptance of attorneyship and interference regarding the crimes which their revision authority is supreme court but in the legal affairs, concerning the procedural law of public and revolutionary courts approved in 2000, though by approval of the mentioned law, the competence of the courts of appeals has been expanded in the civil affairs but it can be said that prohibition and limitation of attorneyship acceptance by the trainees lawyer remain in force.

336-Where is the authority for submission of claim for damages and interest when the case is under investigation in the public prosecutorÕs office?

Opinion of unanimity of votes of members of the current commission in the session dated June 23, 2005

First of all - by virtue of the recent parts of Article 11 of criminal procedure code, new, claim for damages and interest needs observance of civil procedure formalities and as per Article 48 of the recent law, the claim shall be submitted to the office of the competent court. Second- by approval of law for amended of law for establishment of public and revolutionary courts approved in 2002, duties and powers of public and revolutionary prosecutorÕs office were mentioned and in the said law, it was not mentioned that this judicial unit is liable to accept the claim for damages and interest. Therefore, in case of issuance of bill of indictment and sending the case to the criminal court, the private plaintiff can submit the claim for damages and interest to the concerned court or takes action in a separate manner through the competent court.

337- Is objection to intensification of writ of penal attachment, in case of acceptance, subject to change in type of the said writ or does it include mitigation in the rate of the same issued writ?

Opinion of unanimity of votes of members of the current commission in the session dated July 28, 2005

By virtue of Clause 2 (N) of Article 3 of Law for establishment of public and revolutionary courts approved in 2002 from types of the mentioned writs of attachment, only writ of temporary detention can be objected from beginning of issuance and the other writs can be objected in case of intensification. But in case of objection concerning intensification of penal writ of attachment and its release in the court, public prosecutorÕs office can change the rate or type of the writ to the first rate or type. In the meantime, if the court specifies type or rate of penal writ of attachment directly, public prosecutorÕs office is liable to follow the courtÕs opinion.

338- Does regulations of Article 9 of law concerning the brokers approved on Feb. 27, 1938 remain in force regarding approval of the next laws?

Opinion of unanimity of votes of members of the current commission in the session dated July 28, 2005 With respect to the discussion and exchange of views of the colleagues and presented evidence (as described above), regulations of Article 9 of law concerning brokers approved on Feb. 27, 1938 remain in force.

339- In case proving signature to a blank document, is the next insertions in this document absolutely binding?

Opinion of unanimity of votes of members of the current commission in the session dated July 28, 2005

Signature to a blank document, is accepted in our law for example the one who signs a blank text and gives it to the other one so that he completes and uses it that is the first party empowers the second one so that he completes it so it can be said that the mentioned text is valid unless the signatory claims for its misuse. In this case proving the claim is undertaken by the signatory and in case of proving, the said document has no legal value.

340- Is importing (or exporting) satellite equipment, liquors, gambling instruments and the said goods in Article 640 of the Islamic penal code considered as contraband?

Opinion of majority of votes of the members of the current commission in the session dated Aug. 25, 2005

Importing or exporting the goods subject of question is not considered as contraband because the legislator specifies punishment for each of the said acts in a separate manner that these regulations are later than punishment law for the contrabandists therefore in case of a crime commitment in relation with the subject of question, public and revolutionary prosecutorÕs office and public (penal) courts are competent for investigation. 

341- What is the obligation of the accused person that for example is convicted to 6 months of uncertain imprisonment and is passing in the prison and has requested for revision concerning the said judgment which is under investigation and in the meantime, term of his conviction is completed?

Opinion of unanimity of votes of members of the current commission in the session dated Aug. 25, 2005

With respect to the discussion and exchange of views of the colleagues and reasoning and the presented documents as described above, the case object of question in any authority (court of first instance or court of appeals), due to the fact that the case has prisoner, the said authority should control the completion of the conviction period of the convicted person so that as soon as his conviction period is completed, he immediately issues the freedom verdict of him.

342- Which law shall include the ones who announce their identity unreal (especially the ones who have bad record) in case of being crime?

Opinion of unanimity of votes of members of the current commission in the session dated Sept. 29, 2005

Announcement of unreal identity is merely considered as crime by virtue of some the special laws discussed in subject at issue in detail but concerning the subject of question which may be occurred at the judicial authorities, it can be said that for this subject, no crime has been determined at penal law so regarding the doctrine of NULLUM CRIMEN SINE LEGE, in case of commitment, due to non-existence of law, it cannot be punished.

343- Pursuant to judgment by default in absence based on Note 2 of Article 306 of civil procedure code First of all - who is the valid surety? Second- how long the taken security shall be under execution? Third- In case the written judgment or execution writ has not actually notified to the absent judgment debtor but he participates at the time of (auction) judgment execution, is his appearance considered as actual notice and if he does not protest, can the security deposited by the judgment creditor be nullified or not?

Opinion of unanimity of votes of members of the current commission in the session dated Sept. 29, 2005

First of all - There is no certain rule about the fact that who the valid surety is but the credit of such a surety shall be proved. Proving the credit of the said surety is undertaken by the concerned judicial authority. Second - In Note 2 of Article 306 of civil procedure code, term of guarantee is not obvious so up to the time that the judgment by default in absence is not actually notified to the absent judgment debtor as a result term of protesting and revision is not passed, the taken security remains in force. Third - although the appearance of absent judgment debtor at the auction day indicates his information about execution of judgment by default in absence issued against him and there is no doubt that he is aware of the contents of the said judgment and quality of the executive measures in the same day and also he has right to receive the copy of the relevant paper therefore regarding the Article 83 of civil procedure code, this affair is considered as the actual notification of judgment by default in absence to him and if within the prescribed time limit he does not protest or revise, the security deposited will be nullified.

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Disciplinary Warnings

Issuance of writ of attachment of vehicle carrying goods until further notice and also subsequent to rendering judgment, not suggesting the proper course to pursue regarding the said vehicle is disciplinary violation. - Judgment No. 528 dated Dec. 11, 2005, drawn up by branchÉ. of Judges' Disciplinary High Court

Disciplinary condemnation because of rendering judgment in a matter adjudged and verdict No. 624 dated Nov. 26, 2005 of Judges Disciplinary Appeals Supreme Board in dismissal of rehearing request

Not having device for judgment execution of amputation does not eliminate the responsibility of the judge for lack of the necessary policy in acceleration of its execution. - Judgment No. 612 dated Oct. 15, 2005 of Judges Disciplinary Appeals Supreme Board 

To convene a court session of Public (Penal) Court without opinion of public prosecutor or his representative is disciplinary violation. - Judgment No. 382 to 384 dated Nov. 21, 2005, drawn up by branchÉ. of Judges' Disciplinary High Court 

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Business Law

By Dr. Akhlaghi,

First Session,

Commercial papers are not considered as official or ordinary deeds. Commercial papers have two concepts in our business law. In general, it includes any deed or paper that indicates commercial commitments. In this sense, any deed which has a title, credibility and application in business, can be considered as commercial paper such as draft, promissory note, check, bond, treasury bonds, shares instrument, bill of lading, bank credit instruments etc. In a strict sense, the commercial papers are deeds with their definition, role, specifications and special regulations based on the mentioned definition. Specifications of commercial papers in a strict sense can be presented as follows:

1. They can be transferred.

2. They are guarantee for payment of a certain amount of money.

3. Payment of their amount is at sight or in a short time due date.

4. They follow special legal regulations.

The great legal systems have unanimous vote in the rules and regulations governing the commercial papers but they have some difference of opinion too. In 1930, the jurists consult tried to create coordination in commercial papers at the international level. So Geneva treaty was concluded in 1930 and most of the world countries joined it.

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Cyber Crimes

Written & Prepared by Mohammad Hassan Deziani-Forth Part

An Introduction to Cyber Terrorism

The purpose of this article is basic acquaintance with cyber terrorism as a group of crimes under cyber crimes group. Then 15 notes have been inserted regarding the cyber attacks. At the end 6 notes can be mentioned as beginning of penal issue of cyber terrorism. In the next issue, cyber terrorism issue will be set forth.

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Foreign Part

Report of Travel to Singapore

This is a report of travel to Singapore. The mission visited Family and Juvenile Court at the first day. Of the important issues set forth are:

The 4 patterns of justice, real goal of the Juvenile, Civil, Family and Penal Courts are:

1. To administer justice

2. To observe doctrine of rule of law

3. To increase the judgeÕs access

4. To make public confidence

The judges' role before and after proceedings has 4 types of management:

1. File Management

2. Time Management

3. Acceptable Management

4. IT Management

The mission visited Shariat Court, which is a court for the Moslems and investigates the Moslem actions, at the second day.

The mission visited civil Court at the third day.