ghazavat -
No.46
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AGU , 2007
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Editor in Chief’s Note In this issue, the editor mentions the following: Three Points about action of ejection 1. Hearing of action of ejection from beneficial owner is not justified because… 2. Action of ejection of the joint owner of two shares out of total six shares against other partners can be brought and … 3.Eviction and eradication of building is sequel of ownership,… _____________________________________ A Selection of Latest Legal Approvals
► Interpretive Opinions
of Guardian Council
_____________________________________ Disciplinary Warning Judgment No. 93 to 96, drawn up by Branch … of Judges’ Disciplinary High Court: “Approval with injunction regarding prevention of the defendant marriage and exit from the country in the civil case is disciplinary violation.” Judgment No 74 to 76 dated May 12, 2004, drawn up by branch …of Judges’ Disciplinary High Court: “Taking proper security in offense by negligence mentioning the accused status, position and prestige especially guarantee for payment by the insured party should be performed with recognition of the investigating judge.” Judgment No. 119 dated June 17, 2004, drawn up by branch…of Judges’ Disciplinary High Court: “...Cancellation of power of attorney subject of claim depends on the judicial opinion.” Judgment No. 49 dated Apr. 28, 2004, drawn up by branch… of Judges’ Disciplinary High Court: “Non-attention to the witnesses wound and...” is disciplinary violation. Judgment No. 138-139 dated June 27, 2004, drawn up by branch …of Judges’ Disciplinary High Court: “Disciplinary Violation due to non-announcement of the accused not final conviction at the date of issue of the judgment to the prison for notification to the judgment debtor...”
_____________________________________ One Vote, One Experience Hemophilia Mohammadkhani – Judicial Deputy of Head of Tehran Public & Revolutionary Courts We were supposed to set forth the summary of case of the hemophilia for ones who follow it. In this part the second and last part of it is set forth: • International Fundamentals of Civil Liability & Comparative Studies of the Court in the Similar Cases - International Fundamentals of Civil Liability of the Government Liability without Fault Final Opinion of the Court regarding Causality Relation Jural & Legal Fundamentals of Supply of Blood Money and Damage & Loss from the Public Treasury The Extra Loss of the Liability Blood Money of the Public Treasury Necessity of Supply of Intangible Damages Judicial Liability & its Legal Fundamentals Joint & Several Liability & its Legal Fundamentals Result: The court concluded that the elements of the liability of the defendants No. 1 and 2 were confirmed. In relation with the defendants No. 1 and No. 2, it issued judgment for obligation of payment of tangible and intangible damage of the previous treatment to the plaintiffs in form of joint and several, based on the following list and their future treatment charge as described in the judgment next lines. In relation with the defendant No. 3, the court’s opinion was provided, so it announced that there were no legal conditions for achievement of civil liability in relation with Iran Blood Research & Refinery Company and the court rendered judgment for dismissal of action of the plaintiffs concerning defendant No. 3. _____________________________________ Around the Table The following questions were discussed in the around table, the commission majority or unanimity of votes are as follows: 382- In execution of Article 9 of Legal Bill of Manner of purchase and ownership of the lands and properties for execution of public, civil and military programs of government, does have the participation of public prosecutor or his representative merely the formalities aspect or can he give opinion in the nature of the affair (urgency or non-urgency of plan execution)? Opinion of majority of votes of members of the current commission in the session dated June 21, 2007 In reply to the question, it shall be said that recognition of plan urgency is undertaken by the said concerned ministry and the public prosecutor cannot give opinion in this regard because even though interference and possession in the individual(s) properties should be made by canonical and legal authorization or judicial authority decision but concerning text of subject of question (Article 9 of law for manner of purchase and ownership of the lands and properties for execution of the public, civil and military programs of the government) the executive system can take measure regarding possession and execution of the plan in compliance with contents of the said article and the inserted clauses of it before performance of the final transaction by drawing up process-verbal of the present status of the property with appearance of the owner or his representative and in his absence, the representative of the public prosecutor and the official expert, of course regarding the quality of writing of that part of the said article in which it has been inserted that “with appearance of the owner or his representative and in his absence, representative of the public prosecutor…”. It seems that appearance of the representative of the public prosecutor is necessary when the owner or his representative is not present because appearance of representative of the public prosecutor will be merely for reserving the rights of the owner and supervision on the correct execution of the law. 383- Article 282 of Civil Law states that: “If someone has numerous debts to the another one, the fact that payment is for which debt, is recognized by the debtor.” Do the regulations of the said article apply to the commercial papers too? That is, if someone has numerous debts to another one and claims the sum paid is for the check which is at the possession of the plaintiff, is this claim accepted or not? Opinion of majority of votes of members of the current commission in the session dated June 21, 2007 The principles inserted in the commercial papers are different from civil issue, these principles prevent the civil regulations to supervise them because the commercial papers have the privileges that civil debts do not have, for example, joint and several liability can be made in the commercial papers or writ of attachment of relief without payment of the possible damage may be issued and other particular is that the court can not give respite for payment of the amount to debtor without satisfaction of the creditor (on the contrary to the civil debt) moreover regarding the question, existence of check before the holder means the debt existence unless its contrary is proved and that the check has the civil and penal liability too. However if we give the right to the debtor, stability in the commercial relations and acceleration in the said operations are cancelled. Based on these regulations, Article 282 of civil law will not be enforceable regarding the commercial papers.
_____________________________________ Pakistan 2 Decisive Fridays for Chief Justice of the Supreme Court of Pakistan Zakiyeh Ezzati This article represents the events from Friday, Mar. 9, 2007, that is time of suspending activity of the judge Iftikhar Mohammad Chaudhry, Chief Justice of the Supreme Court of Parkistan by Parviz Mosharraf, President of this country, to Friday, July 20, 2007, that is time of issuance of judgment of the supreme court regarding returning of Chaudhry to his position. Apparently he was suspended due to misuse of the authority. The interesting point is that he was suspended by the one who is popular for misuse of his authority in the world. Chaudhry has become popular among the people of this country due to desire for investigation of the cases about indecent measures of the government such as kidnapping and false imprisonment of the political activists of Pakistan. At the last year, he prevented of the government measure for sale of 75% of capital of steel manufacturing factories (belonging to the government) to a private company. Chaudhry measures such as the mentioned ones was not pleasing an for the government and the president himself, Parviz Mosharraf and at last, on Mar. 9, 2007, he suspended Chaudhry for this excuse that there are many complaints against Chaudhry about bad behavior, misuse of the authority and measures inconsistent with dignity and rank of the Supreme Court. Root of the charges against Chaudhry was originated from the open and clamorous letter of Naeim Bukhari, one of the attorneys of the Supreme Court and Member of the Punjab bar association. In fact the inserted charges in the said letter against Chaudhry were unfounded and funny. Generally, the charges against Chaudhry have not been very serious and his measures are considered as ordinary affairs. Some of the attorneys and opposed parties believe that Mosharraf has tried to dismiss an autonomous judge with conspiracy so that he can use the legal challenges for improvement of his plan for request from the legislators for remaining in his position for 5 years at the threshold of elections of presidency. According to the B.B.C. report, Chaudhry has many criticizers but even they accept that he has been very effective… Now we draw your attention to the proceedings of this case and the political and legal evolutions of it…
_____________________________________ Letter of Intent Dr. Kashani (Fifth Part) This part is about contrary letter of intent. Sometimes a seller signs a letter of intent and undertakes in it that if the purchaser undertakes his obligation during the prescribed time, he will appear in the notary public office in the due date and signs the transfer deed in the name of the purchaser but instead of doing that, he transacts the same property with the other one in the later date and then signs the transfer deed in the name of the second purchaser in the notary public office. In this case there is contradiction between the obligations of the seller with the first and second purchasers, now if both letters of intent remain as the ordinary deed and the purchasers bring the action of obligation for drawing up deed in the court, definitely the one takes concurring opinion whose date of letter of intent is prior. But the matter is that the owner has agreed with the second purchaser and drawn up the transfer deed in his name and in this case we have a prior ordinary letter of intent and a posterior letter of intent of drawing up the official deed which have contradiction with each other…
_____________________________________ Timesharing Dr. Parviz Novin, University Professor I have studied the valuable article of Mr. Saeed Shariati in Ghezavat, the educational monthly of justice administration of Tehran province carefully. It has been set forth under title of timesharing. As this legal issue is taught and described by me and some of my colleagues as one of the legal new issues in Bachelor’s Degree in the faculty of law, so I have decided to add some pages following to his article. Part One – Introduction Part Two – A comparative study Mohayat Rule (Division of the profits to the elements or based on time) Part Three – Particulars & effects of timesharing contract Contract particulars: 1- Timesharing contract is a binding contract 2- It is a contract for a valuable consideration 3-It is a contract for vesting possession rights 4- Ownership stability 5-Application of Contract 6-Object of sale is property 7- Power on the submission 8- Contract is conditional 9-Non-commanding regulations in the said contract 10-Transferability 11-Possession 12-Type of contract Contract Definition Part Four – Result of the inserted issues Timesharing
_____________________________________ Thesis Doctrine of a Penal Matter Adjudged in Civil Action Third Part Prepared by: Patoul Ahan Part Two - Nature and condition of the rule Chapter One: Nature of Rule A- Setting forth the issue B- Viewpoints Chapter Two – Condition of rule A- Setting forth the issue B- Legal opinions C- Position of the Judicial precedent _____________________________________ A Selection of World Legal News 1- Guantanamo cell is better than freedom, says inmate fighting against release. 2- Bangladesh court suspends trial of former PM. 3- Bangladesh ex-official jailed for aiding militants who killed judges. 4- Thailand to investigate Thaksin anti-drug campaign. 5- Rwanda signs extradition treaties after abolishing death penalty. 6- Russia brings new embezzlement charges against exiled tycoon. 7- Bulgaria defends pardon of HIV medics. ____________________________________ Foreign Part Electronics Trade Law & Regulations of Trademarks Support Translated by Badamchi Nowadays increasing development and expansion of computer and Internet and generally information technology in all over the world and Iran cause many changes in economic structure of the societies, trading, banking, mass media etc. and by this expansion and development, new horizons have been opened in the laws related to the individuals relation with each other through Internet and finally, there is need for approval of the laws related for disputes settlement and determination of crimes in the Internet space. As an example of international practice, decision of the World Intellectual Property Organization is inserted regarding domain name of google.ir: World Intellectual Property Organization WIPO Arbitration and Mediation Center Administrative Panel Decision Google, Inc. v. M. J. Case No. DIR2005-0001 1-The Parties The Complainant is Google, Inc, Mountain View, California, of United States of America, represented by Rose A. Hagan, United States of America. The Respondent is M. J., Rafsanjan of Islamic Republic of Iran. 2. The Domain Name and Registrar 3- Procedural History 4. Factual Background 5. Parties’ Contentions 6. Discussion and Findings 7. Decision
_____________________________________ Acquisition of Unlawful Property Mr. Azmayesh, Ph.D Mr. Azmayesh gave a lecture in a seminar regarding issue of acquisition of unlawful property. Herein we set forth an abstract of that seminar issues. First condition of life in the society is non-negating of the others life, legal rule is extracted from the society and is indication of needs of a society. If you execute France law in Iran, problems of Iran are not solved. Because they conforms to the coexistence needs in France and are not related to Iran. For example, the society nature does not accept imprisonment of the individual due to blood money. You execute check law with severity but mass media announces that some persons are in prison for checks with low figures, the charitable individuals may help. Because check law is not proportionate to Iran social life… Crime is an action, which breaks the public order, not an action that is predicted in the law. The criterion for an action to be a crime is not prediction of law, that is its form. Law knows this action “contrary to the public order” if the law knows reverse of it as crime, this law is illegitimate… _____________________________________ Rule of Lo’s (Doubt Near to Certainty) & Compurgation 41 Compurgation Comparative Points Dr. Mohammadreza Zandi First Part From the subjects which has been inserted in the Islamic Penal Code and is considered as the explicit jural rules, is subject of “Compurgation”, that is the said rule is based on the narration and is not considered as the explicit rules and regarding applying the said rule, there are different opinions among the jurists. (The writer sets forth different subjects while comparing the opinions in form of 40 points) First Point: Method for proving crime in the Islamic jurisprudence is though two ways: 1. General Method 2. Particular Method Second Point: Method for proving crime in Shiite jurisprudence Third Point: Theoretical results of the jural rules can be studied in two fields. Fourth Point: In the practical results of the jural rules issue, several points should be considered. Fifth Point: Compurgation word Sixth Point: Definition of compurgation from Hanafite viewpoint Seventh Point: Definition of compurgation from other sects of Sunnites viewpoint Eighth Point: Popular order of the Shiites jurists Ninth Point: Narrative document of compurgation Tenth Point: Hanafite justification Eleventh Point: Documented lawfulness of compurgation regarding the five-religions viewpoint Twelfth Point: The opposed of compurgation Thirteenth Point: Opposing reasons of compurgation Fourteenth Point: Compurgation applying cases regarding the five-religions viewpoint Fifteenth Point: Lo’s oral definition Sixteenth Point: Lo’s from viewpoint of Malekiyeh Seventeenth Point: Lo’s from viewpoint of Shafiite Eighteenth Point: Lo’s in Hanabalite custom Nineteenth Point: Lo’s from Hanafite viewpoint Twentieth Point: Lo’s from viewpoint of Shiite |