Editor in Chief’s Note

The judiciary gathering of the year 2007 was hold this year, it should be expected from these types of sessions for using in proportion of place and duration but in this year’s session, some changes were obvious in comparison with the similar sessions which shall be remarkable.
1. Partnership of all the powers
2. Titling the meeting
3. Emphasis on act of the Judiciary
4. Inadvisable interpretation of the Minister
5. New view to issue of “ Human Rights”
5-1- Dividing the human rights in general and particular meaning
5-2- Nuisance of individual rights with public rights
5-3- Necessity of institutionalizing of human rights
5-4- Quality of drawing up the regulations and formalities
5-5- Goal of making sovereignty
5-6- Scope of powers of the governors
5-7- Justice and security
5-8- Methods for keeping the social order
5-9- Main manifestation of the human rights
5-10- The powers, servant of the people and keeper of the human rights
Result

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A Selection of Latest Legal Approvals
• To wounding oneself with a poniard, an insulting and unreasonable attitude
• Establishment of Department General of Industrial Ownership
• Presentation of power of attorney for applying Article 18 is not necessary.
• Instruction for establishment of High Council of Supervision and Investigation
• Instruction of Law for Manner of Compensation of the Troubles and Losses of Employees of Environment Protection Organization in relation with the environmental crimes

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Disciplinary Warning
q Judgment No. 27 dated Apr. 29, 2007, drawn up by Branch … of Judges’ Disciplinary High Court: “ Issuance of order of ejectment from the property, subject of illegal possession instead of issuance of order of stopping the offensive operations etc. is disciplinary violation.”
q Judgment No 20 dated Apr. 25, 2007, drawn up by branch …of Judges’ Disciplinary High Court: “Deduction of 1/5 of the monthly salary in 6 months for four disciplinary violations.”
q Judgment No 21 to 24 dated Apr. 25, 2007, drawn up by branch…of Judges’ Disciplinary High Court: “Disciplinary violation for non-observance of Note 6 of Article 3 of Law for Establishment of Public and Revolutionary Courts”
q Judgment No. 19 dated Apr. 24, 2007, drawn up by branch… of Judges’ Disciplinary High Court: “Rendering judgment for the plaintiff with entitlement of the sum for loss of non-performance of the overtime work is considered as evidences of interest damage and is disciplinary violation.”
q Judgment No 2 dated Apr. 4, 2004, drawn up by branch …of Judges’ Disciplinary High Court: “Investigation of the plaintiffs’ petition without insertion of name and specifications of all the defendants (heirs) is disciplinary violation.”
q Judgment No. 2 dated Apr. 6, 2004, drawn up by branch…of Judges’ Disciplinary High Court: “ By virtue of Article 2 of Legal Bill of the authority for revision and rehearing regarding the judgments of Judges’ Disciplinary High Court approved in 1979, the rendered judgments by the Judges’ Disciplinary High Court about judges of the justice administration is without the condemnation degree, which can be reheard, in the judges disciplinary board of appeals.”

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One Vote, One Experience
Hemophilia (Fifth Part)
Judgment for Obligation of Financing & Payment of Tangible and Intangible Damages
Mohammadkhani – Judicial Deputy of Head of Tehran Public & Revolutionary Courts
Issued by Branch 1060 of Tehran Public & Revolutionary Courts

Plaintiffs: 71 of those who have caught Hemophilia due to use of the contaminated blood products of the blood transfusion organization.
Defendants: 1- Ministry of Health & Medical Education, 2- Iran Blood Transfusion Organization, 3- Iran Blood Research & Refinery Company.
Relief Judgment: Claim for tangible and intangible damages as well as the treatment charges of past, now and future and other damages.
After initiating proceedings by the plaintiffs, the court concluded, by the initial summary survey, that “the filed claims are a part of law that despite of their remarkable importance and the fact that they are the society subjects of today and has transferred to Iran through a process, are concealed from viewpoint of the legislators and there are not many remarkable judicial and university records in this regard” so in this direction, the expanded studies about the fundamentals of the subject, including jural and legal and comparative and technical special issues and other related aspects were began and continued. The court had to study exactly about the disease and its types and conditions as well as its transmission and prevention methods by the experienced experts and specialists. Therefore, from judicial viewpoint, the responsibility causes in this case were defined.
-Definition of the Civil Liability of the Government:
- Fundamentals of Civil Liability of the Government:
1- Liability based on Offense
2- Liability based o Direct Offense of the Government
- In this case, mentioning two issues is important:
- First: is based on supply of the damage by the plaintiffs
- Second: Proving causality relation by using the jural rules
1- Warning Jural Rule
2- Division Jural Rule
- Place of Civil Liability of the Government in Law
A: Constitutional Law & Civil Liability of the Government & Human Rights
B: Government Liability or Unjust Exercise of Right
C: Theory of Risk & Liability without Condition and Principles of Proportion
D: Theorem of Negation of other Causes
E: Theory of Right Guarantee

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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:
378- If someone enters to Iran by a forged passport related to the other country, does the crime of using forged document become complete or not? Can the forgery of the said passport in Iran be investigated or not?

Opinion of Unanimity of votes of members of the current commission in the session dated Apr. 26, 2007
With respect to the question, the said passport has been forged outside Iran and its forgery is made certain, for this reason we are not about to prove forgery, in this manner, if the person, subject of question, himself has committed the passport forgery or the other one has forged it and given it to him and used it by awareness of the forgery, regarding the fact that he is foreigner or Iranian, the following cases will be investigated in Iran: 1- If he is foreigner and the forgery has been made by him, as per article 5 of Islamic Penal Law, the said crime will not be investigated in Iran unless concerning the crimes, that by virtue of the special law or international treaties, the perpetrator in any country that he has been arrested is tried, if he is arrested in Iran, he is tried and will be punished as per laws of the Islamic Republic of Iran. (Article 8 of Islamic Penal Law) 2- But if he has used the forged passport, subject of question, in Iran by full awareness, he will be punished as per clause 1 of article 15 of the law about entrance and residing the foreign nationals in Iran otherwise, his entrance and residing in Iran is not permissible, he can be prosecutable as impermissible entrance and residing. 3- If the mentioned person is Iranian and forgery has been made by him, by virtue of article 7 of the Islamic Penal Law, he will be prosecutable regarding the forgery and also using the forged document. But if he has not committed the forgery, but by awareness, he has used the forged passport, subject of question, he will be prosecuted under the same title.

379- With respect to the penal regulations of articles 174 onwards of the Labor Act (and regardless of the article 173 of the same act) regarding rate of cash fine, when the minimum of the daily wage of a worker can be basis for action? Date of judgment issuance, date of payment or…

Opinion of votes of members of the current commission in the session dated Apr. 26, 2007
Majority: Basis for calculation of cash fine in Article 174 of Labor Act shall be the minimum daily wage of a worker at the time of misdemeanor commitment not at the time of judgment issuance because as per doctrine of NULLUM CRIMEN SINE LEGE and NULLA PAENA SINE LEGE, determination of punishment for the criminal should be by virtue of legal explicitness and no one should be punished by doubt, unity and inductive reasoning so in reply to the said question, it shall be said that Article 173 of Labor Act has determined explicitly the calculation basis of cash fine for the offending employer to payment of cash fine from 70 to 150 times as much of the least official daily wage of a worker at the time of judgment issuance but in Article 174, no point has been mentioned about issuance date of judgment and the correct judgment has been that regardless of the calculation basis in Article 173, the question is answered therefore by proving doubt concerning the punishment basis in Article 174, the principal interpretation should be used for the accused and interest of the accused is that his punishment is determined at the date of the crime commitment that is slighter than the punishment determination at the judgment issuance date.

380- In Article 183 of Labor Act, in issuance of judgment for payment of all the rights belonging to the worker (employer share), when can be basis for execution? Should the rate of the employer share and payment to the account of social security organization based on time of crime commitment, that is date of non-insuring or date of judgment issuing or date of execution and payment by the employer be computed?

Opinion of votes of members of the current commission in the session dated Apr. 26, 2007
Majority: Reply to this question (380) is the same that has been presented by the majority in question 379 about Article 174 of Labor Law, that is basis for calculation of cash fine should be time of crime commitment.

381- In the misdemeanor of telephone nuisance, which judicial authority can investigate? The one at the location of the contactor or the addressee’s?

Opinion of votes of members of the current commission in the session dated Apr. 26, 2007
Majority: The principal is that the accused is tried in the court that the crime is committed in its judicial area therefore in reply to the question; we shall make clear the location of committing misdemeanor (telephone nuisance). In this case the competent judicial area for investigation of the said misdemeanor will be obvious. From the contents of the question, it is inferred that the judicial area, location of the contactor (with telephone or mobile) and the judicial area, location of the addressee, are different. So where is the location of misdemeanor’s occurrence? The majority believes that wherever the contact is made, no crime is committed because the contactor takes action regarding nuisance of the addressee, that is the time that the addressee answers the phone and some words are transferred or saved in the answering system and this contact makes the addressee upset because he does not intend for such a contact. So the physical element of the crime is achieved at the location of the addressee and nuisance is made. As a result, the competent judicial area for investigation of the misdemeanor, subject of question, is the judicial area at the location of the addressee in which the crime is committed.

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Writing Criticism of One Verdict
Criticism of the Writing Criticism

Seyed Ahmad Mirbabaei,

I read “writing criticism of one verdict” in the monthly many times and as I knew the writing is not only an art but also a taste which any one could enjoy it, I considered the criticisms as an art and a taste which could be creative and persuading in direction of correct writing up to the time that the last writing criticism changed my idea and caused my taste to be excited for criticism and this was not only for the fact that the recent criticism was not creative and it might remove its negative effect but also I intended to criticize the unfair criticism and correct the writing. Because unfortunately this criticism had many writing errors and it was better that the criticizer edited his criticism with the considerable sensitiveness that he had toward correcting and criticizing the courts judgments writing.
Now please pay attention to some of the writing and non-writing errors of the recent criticism of him.

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Article
Investigation Procedure of Debt Exceptions in Iran and Comparative Laws
Reza Shahhosseini – Chief Justice of Branch 2 of Varamin Court of Law
Third Part
In this part, we read:
Section Two – Decision of competent authority, ability of complaint of the decision, effects of the decision
Part One – Decision of the competent authority in the different stages of the investigation
Chapter One – Decision of judicial authority
Clause One – Iran Law
Clause Two – Comparative Law
A- Jordan Law
B- Lebanon Law
C- America Law
Chapter Two – Non-Judicial Authority
Clause One – Department of Registration
Clause Two – Department of Finance
Part Two – Ability of complaint of decision of the competent authority
Chapter One – Judicial authority
Clause One – Iran Law
Clause Two – Comparative Law
A- Egypt Law
B- Iraq Law
Chapter Two – Non-Judicial Authority
Clause One – Department of Registration
Clause Two – Department of Finance
Part Three – Effects of decision of competent authority
Chapter One – Effects of decision of judicial authority regarding acceptance of claims of the debt exceptions
Clause One – Iran Law
A- Direct effects of decision of judicial authority on the execution proceedings
First – Stay of execution proceedings and prohibition of continuation of the execution proceedings concerning property, object of complaint
Second – Stay of the execution proceedings and release of attachment of property
Third- Cancellation of execution proceedings and bid
B- Indirect effects of decision of judicial authority
Clause Two – Comparative Law
A- Jordan Law
B- Egypt Law
C- Iraq Law
Chapter Two – Non-Judicial Authority
Clause One – Department of Registration
Clause Two – Department of Finance
Conclusion

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Letter of Intent
Dr.kashani (Fourth Part)
As it is mentioned, in the letter of intent, there is a mutual connection between the parties’ commitments. Result of this connection is that if one person does not perform his commitments, he cannot bind the other party for execution of his commitments…
Implicit cancellation in the civil law of France has been predicted. Article 1184 of this law states generally about the contracts: “In the contracts that the parties undertake the commitments mutually, when a party does not undertake his commitments, always there is a implicit cancellation condition for the other party, even if this condition is not mentioned in the contract...
There is a goods sale international convention that has been prepared through united nations trade law commission and presented to the different countries and we have 100 articles about goods sale and purchase which are hopped

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Article
Timesharing
Saeed shariati
The Judiciary Jural Research Center
Last Part
Second Section: Study of the similar methods
Study of contract of transfer of timesharing was completed in the last issue. Now, as complementary of the last discussion, we survey some of the similar contract methods and forms that although they differ seriously with timesharing contract regarding title and contract form, but in practice, they relatively have similar results and effects.
These methods are inclusive of A- Common sale based on division of profits, B- Conveyance of profits, C- Joint stock company, D- Time partition
Then some supplements regarding jural viewpoints about timesharing were mentioned.
Legal Department of the Judiciary
Referring to inquiry No. 5/75 dated Oct. 13, 1996, consulting opinion of the legal department is announced as follows: Sale contract as inserted in the inquiry is not achieved, that is, sale of a property for a certain period does not conform to the existing laws because when the total six shares of a property is sold, that property does not belong to the owner [seller] and belongs to the customer [buyer] and this affair does not have limitation and is for ever.

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Thesis
Doctrine of a Penal Matter Adjudged in Civil Action
Prepared by: Patoul Ahani
Second Part

Chapter Two – Explanation of the doctrine based on the legal fundamentals
The Issues division
A) Difference of the courts duty and idea of competence of theory of Obri & Rou
Criticism of the competences theory
B) Difference of investigation methods
Guarantees of special correctness in proceedings in penal matters
Theory criticism
C) Public Order
Validity of penal judgment due to superiority of its mission
Validity of penal judgment due to safeguarding the prestige of the penal courts
Validity of penal judgment due to avoidance of conflict of the judgments
Result

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A Selection of World Legal News

1- Jordan names woman to head court for first time.
2- Former Chinese drug commissioner sentenced to death for taking bribes.
3- French court convicts Chirac associates in housing kickbacks scandal.
4- Ethiopia seeking death penalty for former dictator convicted of genocide.
5- Gonzales outlines new DOJ efforts to counter violent crime.
6- Oregon ecoterrorist sentenced to 7 years in prison for arson.
7- US congressman indicted on bribery, money laundering charges.

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Foreign Part
Gradual Development of Intellectual Ownership
Technology Rights Bulletin

A) Patent
B) Trade Marks
C) Copyright
D) Invention & Technology
E) Unfair Competition
1. Measures which cause puzzlement in any manner, whether by making goods or industrial or commercial activities of a competitor
2. Mistake claims in the commercial cases which cause doubt in the goods or commercial or industrial activities of a competitor
3. Responsibility for news or claims used in the trade course, so that nature, manufacturing stages, specifications, correct goals or quantity of the goods mislead the public opinions
Also 12 other judicial precedents as unfair competition have been specified in description of the legal method of the developing countries in the marks, trade names and unfair measures of the competition that have been inserted.

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The Month’s Guest

- Children Status of Being Victim
Najafi Abrandabadi, Ph.D.

Whereas children and youngsters are growing mentally and physically and their personality is forming and are not yet matured, are damaging in the society, especially against guiltiness more than the adults and can recognize their supreme interests less than the adults. For this reason, the laws and regulations of guiltiness and status of being victim regarding the children have separate aspect.
In the penal law of the children, we encounter with three concepts. Children Guiltiness, Children Status of Being Victim, Children at Risk. Children guiltiness includes all the crimes, which the children commit. Children Status of being victim is all the committed crimes against children. Children at Risk, is a middle concept. When a child is at threshold of a crime commitment (guiltiness) or crime endurance (status of being victim) due to his personal status and circumstances or because of his parents’ status and specifications, his friends, classmates and environment, in fact he is exposed to danger of deviation, crime and the other social damages. But our main discussion is status of being victim. From two aspects, the victim is studied: First, due to the role, which has been executed by him at the time of crime commitment. In this case, we need to mention Clause 3 of Article 22 of Islamic Penal Code. Second, due to crime endurance and its undesirable effects, in this case, we consider the person’s rights and needs in the status of being victim.
Among the international important documents about the children, Child Rights International Convention 1989 should be mentioned. Article 3 of this convention, is the most important article regarding meaning and effects for the children rights (the ones under 18 years). By virtue of this article the children supreme interest should be ever considered in the different authorities. However, it can be said that support of the children against crime in the Islamic Penal Law includes girls less than 9 years and boys less than 15 years. (Article 49 and its notes) But in article 1 of law 2002, individuals under 18 years are considered.

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Children at Risk
Ardabili, Ph.D.

By virtue of Article 1173 of Civil Law, “Children at Risk” are the children whose their physical health or moral training is at risk due to carelessness or moral degradation of the mother or father who the child is under the custody. Children in the process of growing and boasting need care and control due to their inability of supply of the necessities. Civil law recommends this duty to the parents of the child and states that the children custody is duty of the father and mother. From the provisions of the said article in the civil law, it is indicated that the moral health and care of the mother or father shall be in the manner that the child’s physical health or moral training is supplied. It is evident that if due to any reason, any weakness is created in the said obligation fulfillment, and the material and spiritual needs of the children are not supplied; risk possibility of the child is reinforced.