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Editor in Chief’s Note
The editor in chief in this issue while congratulating the New Year
mentions some points as criteria for achieving important parts of
executive plan of the year of 2007:
Special view to prison and human rights with establishment of deputy
office in prisons affairs, closing the old cases up to the end of
year of 2004, attempt for making basis of execution of plan of
automation and CMS in 20 judicial units, basis for computer network
of Lan in 43 judicial units with different percents, attention to E
archive, deduction of cases of justice administration of Tehran
Province for about 11%, specialized educations of common scientific
meetings of judges with famous professors of different law faculties
such as Messrs Amid Zanjani, Marashi, Katouzian, Azmayesh, Mousavi
Bojnordi etc., continuation of updating the mere state laws site and
online of Ghazavat and Justice Administration of Tehran Province
sites which in 2007, 2750955 pages of (sites of Ghazavat, Justice
Administration and Ghavanin) were visited by internal and foreign
individuals, separation of and notification to the unreliable
personnel in the judicial and administrative sections, prevention of
noisiness and continuation of movement to competent mastership.
The major criteria of the executive plan of the year of 2008 are:
A-Promotion of Judicial Decisions Quality
B-Satisfaction
C-Prison
D-Establishment and Activating of Development and Planning (of
Duties) Deputy Office
E-Dispute Settlement Council
F-Miscellaneous
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A Selection of Latest Legal Approvals
► Law for Money Laundering control
► No one can be prohibited from the court that he can refer by
virtue of law
► Collecting any kind of amount from the individuals depends on
explicit verdict or the previous permit of the legislator.
► Satisfaction and remission by complainant in the unpardonable
crimes do not negate the misdemeanant punishment.
► Law for extension of experimental execution respite of procedure
code of public and revolution courts (in criminal affairs)
► Electronic Banking System Bylaw
► Bylaw for quality of dispute settlement among the executive
systems through the executive internal mechanisms
► Executive bylaw of law for retirement before time-limit of the
government employees
► Instruction for development of information and relations
technology application in the judiciary and installation of software
of judicial case management
► Approval for supply of the body damages for the received cases
from public treasury blood money fund in the current year
► Instruction for operation evaluation of justice administrations,
staff areas and the affiliated organizations of the judiciary
► Law for amendment of Article (34), amended, of registration law
approved in 1972 and omission of Article (34), repeated, of it
► Amendment of bylaw of Article (18), amended, of law for
establishment of public and revolutionary courts
► Governmental punishments organization can change the employment
status of its employees to official with some conditions.
► Instruction of judicial support of the investment in the judiciary
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Disciplinary Warning
Unenforceable judgment & disciplinary violations … as described in
the report.
► “Disciplinary violation based on issuance of judgment without
obtaining attachment and hearing the last defense and declaring the
court proceedings closed in judgment No. 405 dated Nov. 30, 2004,
drawn up by branch No. … of the Judges’ Disciplinary High Court.”
► Judgment No. 265 to 268 dated Oct. 2, 2006, drawn up by Judges’
Disciplinary High Court: “ Suspending the case more than 6 months
and then issuance of writ of incompetence and declaring the verdict
is appealable that accession object of that blood money is less than
one fifth of the man complete blood money and … is disciplinary
violation.”
► Judgment No. 449 to 454 dated Dec. 21, 2004, drawn up by branch…
of Judges’ Disciplinary High Court: “While refusing the several
disciplinary violations of Judges Disciplinary Prosecutor’s Office
against the said judges inserted in the report and due to the fact
that all the mentioned cases have been recognized subject to
precedent verdict No. 581 dated Feb. 21, 1993 of General Board of
the High Court, the said judges have been acquitted.”
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One Vote, One Experience
1-Verdict of court of first instance and its confirmation in the
court of appeals: “the mere check signature (in the text and reverse
side) bears commitment for the check issuer, so writing its text by
the other one has no effect in the subject…”
2-Verdict of court of first instance in acceptance of insolvency of
the judgment debtor regarding the legal expenses of revisionism
3-Verdict of court of appeals in confirmation of judgment of
acceptance of insolvency and confirmation of conviction judgment of
issuer of bad check
4-Verdict of verification branch … of the high court in reversal of
judgment of court of appeals
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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:
388- With respect to recommendation of substantive investigation in
the verification branch of the high court, in case one of the said
branches issues writ of rejection of revisionism request or by
reversal of revision judgment issues relief of another judgment, who
will be the authority for investigation of request of granting
conditional release or applying Article 277 of Criminal Procedure
Code?
Opinion of unanimity of votes of the members of the current
commission in the session dated Sept. 6, 2007
By virtue of recommendation of substantive investigation by
verification branches of the high court and the fact that on the
strength of the legal principles, the judicial consequent authority
has no right to interfere in the verdict of the high authority, so
in the above presumption, this judgment is final and enforceable. In
this case authority for request of granting conditional release
(Article 38 of Islamic Penal Law) and also request for mitigation
applying subject of Article 277 of Criminal Procedure Code is the
same verification branch of the country high court (the one rendered
judgment).
389- Someone has been convicted to 2 years of imprisonment and
payment of 4 million Tomans of cash fine due to fraud. He passed 21
months of his imprisonment. In the next stages of investigation in
verification branch of the high court, his imprisonment term has
been decreased to 6 months from 2 years, regarding the extra prison
term passed by the judgment debtor, can the cash fine be calculated
instead of the extra prison term 15,000/- Tomans for each day?
Opinion of majority of votes of members of the current commission in
the session dated Sept. 6, 2007
It shall be mentioned that 1- Phrase of “High Court” inserted in the
said question should be amended to Verification Branch of the High
Court. 2- The least imprisonment in the misdemeanor of fraud is one
year so mentioning 6 months in the question is not correct. The
answer: According to prescription of substantive investigation by
verification branches of the high court, whereas the judgment
subject of question has been reversed in one of the verification
branch and another judgment has been issued that as a result the
prison term of the judgment debtor has been deducted so this
judgment is final and enforceable but as the said person has been at
prison more than the recent condemnation, his extra prison term
should be calculated as per Note of Article 18 of Islamic Penal Law
and Precedent Verdict No. 645 dated Oct. 2, 2001 and Article 1 of
Law for Manner of Financial Convictions Execution and Article 11 of
the said law bylaw and is deducted of the cash fine, object of
judgment (for each day of imprisonment: the sum of 15,000/- Tomans)
because as the previous detention period of the judgment debtor is
deducted from the punishments, so his extra prison term should be
deducted too and is deducted of the cash fine, object of judgment.
Received from Family Judicial Complex (1):
“Is verdict of Obligation of the wife obedience, declaratory or does
it need issuance of execution writ according to Article 4 of Law for
Judgments Execution?”
At the end, the result of vote taking has the same pros and cons
among the judicial colleagues during the two sessions of
proceedings, that is 8 of the colleagues believe in declaratory
judgment and 8 of them believe in issuance of execution writ. But
majority of the judges believe that the court should investigate
regarding preparation of preliminary steps of obedience by the
husband, such as housing, and household furniture before issuance of
obedience judgment and after proving the issue, it takes measure
concerning issuance of verdict of obligation of obedience.
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Thesis
Doctrine of a Penal Matter Adjudged in Civil Action
Sixth Part
Prepared by: Batoul Ahani
To execute the rule, it is not enough that only a penal judgment is
rendered rather it is necessary that there is a unity among the
issues investigated and the affairs which later are set forth in
civil action. This condition is logically can be divided into two
parts. First the penal judgment is rendered prior to civil decision
making and is invoked in the recent action and the other that the
issues investigated are two equal actions. These subjects are
studies in two sections.
A- Setting forth penal judgment in civil action
B- Priority of rendering penal judgment than termination of the
civil action
Result:
In result crimes acquiring the necessary result of accomplishment of
crime and naturally partial is compulsory in investigation of penal
court. The necessity which causes the court declarations are
governed in civil action regarding result. There are crimes which
their accomplishment depends on acquiring a certain result. In our
law, some cases such as organs blood money and some of the crimes
resulted from driving offenses are of these examples.
So if with respect to Islamic penal law, the one who incurred a loss
can bring a civil action against loss factor, the opinion of the
penal court about this certain result, will be a limitation on
evaluation of judges in the civil action.
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A Selection of World Legal News
1-INTERPOL chief to be charged with corruption in South Africa
2-Bangladesh ex-PM Hasina formally charged with extortion
3-Chile court sentences Pinochet police chief to 10-year prison term
4-Afghan journalism student sentenced to death for blasphemy
5-A famous China company complained to Microsoft company
6-Former Russian nuclear power minister found guilty of fraud, abuse
of office
7-UK nurse sentenced to life in prison
8-Pakistan frees Indian man after 35 years
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Foreign Part
Judicial Independence from viewpoint of
International Documents with Glance at Internal Law
Shakour Pourhossein,
Judicial Independence as a corollary principal of doctrine of
separation of powers is the logic result of this principal. Based on
doctrine of separation of powers, executive, legislative and
judicial powers are three separate branches of government which have
certain and independent scope pf powers and responsibilities. Based
on this, the judiciary independent from external supervision is as
result of legal separation from the executive and legislative
powers. This separation and result of independence is for effective
function of the Judiciary for strengthening the rule of law and the
basic human rights. Because the judicial independence is the theme
of the rule of law and without this principal there is no
understanding of the human rights. The role of the judiciary in a
society should be in direction of support of human rights by due
process of law and effective amendments.
The following subjects are studied herein:
1.Judicial independence & types of it
2.World criteria regarding judicial independence
3.Important international documents supervising on the judicial
independence
4.Regional documents supervising on judicial independence
5.Judicial independence in the internal law
6.Judicial independence in Iran legal system
7.Basic principles of the judicial independence inserted in the
above mentioned documents
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The Month’s Guest
Statements of Hazrate Ayatollah Amid Zanjani -Chancellor of Tehran
University
The judicial and legal issues- have their special complications and
on the other hand, there are some problems in our judicial system.
We shall pay attention that the main fundamental of our judicial
system is based on the jural documents invoked and we have accepted
to use human advanced experiences during the judicial history. In
fact our constitutional law in the state judicial system admitted
two principals and confirmed them.
1.Relying on the Islamic and jural principals, criterions and rules
(Fourth Principal)
2.Using human advanced experiences (Second Principal)
But the fact that how much we use the jurisprudence and human
advanced experiences (whether in procedural or substantive aspect)
in the current judicial system, requires deliberation and review.
Regarding this short introduction, there is no problem to review the
legal and judicial issues from time to time maybe we can achieve
better techniques.
Now I am going to divide the issue into three parts: 1. (Observance
of the philanthropic rights in the trials) 2. (Observance of the
philanthropic legal issues in the trials 3- Legal principals
governing on the proceedings and trials of the procedural law
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Article
Is similarity of Trade Mark and Trade Name
of the Instances of Unlawful Competition?
Elahi Manesh,
Instances of lawful and unlawful commercial competition, in some of
the cases, are close to each other in the manner that distinction
between them is very difficult and needs legal and judicial
complicated investigations.
One of the cases that can be assigned as instance of the unlawful
commercial competition is similarity of “Trade Name” and “Trade
Mark”. In many cases the rights resulted from trade names is
inconsistent with trade marks. For example, someone registers and
uses another’s trade mark as trade name for his institute or company
and this similarity causes incurring loss for the parties and
confusion of the consumers in referring or using the products or
services of the parties. In this article different opinions
regarding contradiction or inconsistency of the rights of trade
marks and trade names are studied:
-Trade Mark & Trade Name
-Codified Laws in Support of Trade Mark & Trade Name
-Inconsistency between Rights of Trade Mark & Trade Name
-Judicial Precedent about Similarity or Non-Similarity of Trade Mark
with Trade Name
-Conclusion
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Article
Writ of Litispendencia & its Place in Iran
Judicial System
Abolfazl Dankoub,
Writ of Litispendencia can be considered as one of the most
important judicial decisions in proceedings system. In this regard,
it has been tried that the important subject of issuance of writ of
Litispendencia in the penal and legal authorities is set forth. The
fact that in which cases the court and the public prosecutor’s
office can take measure regarding issuance of writ of Litispendencia
and in which cases issuance of writ of Litispendencia is prohibited
are subject of this article. Lack of legal details and a coherent
judicial precedent in this regard cause diversity of opinions among
the judges of justice administration and this case leads us to
compile the judgments and legal and judicial opinions.
However the common point of all the definitions is that whenever
investigation of an authority depends on a subject certainty which
its investigation is beyond the competence of that authority, the
investigating authority should issue writ of Litispendencia up to
attaining claim of “it depends on”.
First Part: Writ of Litispendencia & its types:
Second Part: Competent Authorities in Issuance of Writ of
Litispendencia
Third Part: Obligation of the Judicial Authority after Issuance of
Writ of Litispendencia and Objection Ability of it
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Article
Relation of Morals & Penal Law
Seyed Ali Azmayesh, Ph.D.
To develop, it should be performed contrary to the customs.
Innovation is to perform contrary to the customs. Law is a dynamic
phenomenon. Society and its governing rules are changing. In
definition, Law is the collection of regulations which regulates the
people relations in the social life…
But Morals can be studied in two aspects: one in individual aspect
and the other in social aspect. In individual aspect, morals are
based on mental and personal high fundamentals. Individual morals
are internal and are elected for each person with thought. It needs
a conscientious acceptance and its executive guarantee is the person
conscience. If the person moves contrary to this moral rule that he
has accepted, he hurts and his conscience blames him. Goal of
individual morals is to cause to reach the human to highest point…
Social morals are external rules that the average of the society
accepts it and the society supervises that morals applying. The goal
of these morals is preserving the social order. For this reason, the
morals connect the law, not the individual law but the social law.
Effects of the social morals are clear in the society. Here the
goodness and badness criterion is the individuals’ acceptance in the
society…
In relation of morals with law, the rules of social morals are
discussed.
Principally all the moral rules do not conform to legal rules
because the legal rule is an order with sanction but the moral rule
is principally an order which does not necessarily have sanction…
One of the principal goals of law is preserving public order.
The correct legislation is that to preserve the public order and
individual rights and freedoms because the law is written for the
society so it is derived from the society. If the law is rising from
the society, has acceptability. The people are preserver of the
order and law. If the law is imposed from a high rank, the people do
not accept it…
The law is successful that is based on the social morals unless in
the urgent cases such as science, technology development etc.
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