Editor in Chief’s Note

The editor in chief in this issue sets forth 4 points about judicial precedent regarding the contracts that have made contingent the dispute settlement upon arbitration.

Summary of these points are: 1. If one party objects the arbitrator’s opinion, he cannot refute the mutual consent of submission to arbitration. 2. Losing the original written contract about arbitration does not cause any damage the parties’ mutual consent and there is no need for writing the arbitration contract again. 3. The arbitrator is entitled to observe the arbitration regulations, he is not bound to observe the regulations of civil procedure. 4. Arbitration condition in absolute status is a binding commitment but if it is conditional, in case of achievement of condition, it is binding otherwise it is not considered as commitment.

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A Selection of Latest Legal Approvals

·        Notification of all the judicial papers such as civil and criminal is undertaken by the disciplinary force.

·        Birth of each baby born in Iran, where his (her) parents are Iranian or foreigner should be registered.

·        Application of title of smuggled goods for the vehicles having ownership deed is contrary to credibility of the official deeds.

·        Verdict No. 721 of General Board of Administrative Justice Court regarding payment of dependants and children allowance concerning their divorced daughters

·        Obligation of the government for payment of 1/10 of the least monthly salary of the government employees for purchase of the goods and needs depends on allocation of credit.

·        Law for accession of one article to Islamic Criminal Law regarding manner of supervision on the offenders with the past criminal records

·        Approval of Expediency Council about interpretation of single article of law for suggesting the proper course of lands delegated by the government and institutions

·        Current price of blood money judgments

·        Taking agreement of the trade unions is not necessary for drawing up official deeds of lease of shops and businesses.

·        Prevention of granting ambiguous, brief, general and defective delegations

·        Facilitation of execution of duties of special judicial board dispatched to the provinces for investigation of courts and prisons

·        Headquarter of narcotics control is bound to observe the law for public calculations in manner of credits spending

·        Other public and revolutionary prosecutor’s offices issue clearance certificate too.

·        Re-amendment of amended Article (73) of executive bylaw of law for investigation of administrative violations

·        Justice Administration is the competent authority for dispute settlement about measures of Ministry of Energy and the owners or possessors of river bed and limit

·        Dismissal of an employee of a certain job does not require dismissal of his service and breaking off the employment relation with the governmental unit.    

·        Payment of pension to the daughters and granddaughters of the governmental employees depends on having no husband and occupation.

·        Investigation of claims in the Customs affairs depends on final result of verdicts of Customs Disputes Investigation Commission.

·        Bylaw for manner of election of official experts

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Disciplinary Warning

q  Judgment No. 136 dated Sept. 2, 2007, drawn up by branch … of Judges' Disciplinary High Court: "Conviction of the mother for refusal of delivery of the 11 year-old daughter (to the father) in the court of first instance, quash of the mentioned judgment in the court of appeals and rendering of acquittal judgment of the mother"

q  Judgment No. 509 and 510 dated Jan. 25, 2005, drawn up by Judges’ Disciplinary High Court: "Permanent dismissal for the judicial services due to numerous disciplinary convictions records"

q  Judgment No. 134 dated Aug. 21, 2007, drawn up by branch… of Judges’ Disciplinary High Court: “Disciplinary condemnation of the prison observer assistant prosecutor due to breach of execution of articles 214 and 207 of the prisons affairs bylaw and article 145 of criminal procedure code."

q  Judgment No. 135 dated Aug. 21, 2007, drawn up by branch… of Judges’ Disciplinary High Court: “Conviction  of the owner of goods to payment of cash fine substitute of imprisonment in accusation of smuggling of the goods which has not been barred to import is violation."

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One Vote, One Experience

1-     Judgment No. 827 dated Sept. 22, 2004, drawn up by Branch No. 117, of Tehran Court of Law: "… Judgment for detaching possession of the plaintiff from 4 joint shares out of the total 6 shares of key money of the above mentioned shop for an unreal contract and reacquisition of the plaintiff…”

2-     Judgment No. 180 dated May 2, 2005, drawn up by Branch No. 8 of Court of Appeals of Tehran Province while reversal of primary judgment: "… detaching possession of the 4 joint shares out of the total 6 shares of the key money of shop in a joint partnership has no legal base…".  

3-     Judgment No. 5/1348 dated Nov. 25, 2006, drawn up by Verification Branch No. 5 of the High Court while reversal of judgment of court of appeals: "…detaching possession of the transgressors of 4 joint shares (in compliance with Article 43 of Civil Judgments Execution Law) from the joint shop has been issued as per the regulations and its breach by the court of appeals has no legal base…".

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Around the Table

The following questions were discussed in the round table, the commission’s majority or unanimity of votes is as follows:

390- Is the priority inserted in clause 1 of article 148 of the Law for Execution of Civil Judgments regarding the immovable property attached in favor of two persons at one date necessary between them? (one property in favor of two persons with two writs of attachment in Reg. Dept. in one date but with two attached Nos.)

Opinion of nearly the unanimity of votes of the members of the commission present in the session dated Nov. 1, 2007

By virtue of Article 148 of the Law for Execution of Civil Judgments in any case that numerous execution writs reaches the execution part, the bailiff should observe right of priority of each of the judgment creditors respectively (four clauses of the Article). Clause one of the Article declares: "If the immovable or movable property of the judgment debtor is under mortgage or pawn or is the object of the conditional transaction etc. or under seizure in favor of the judgment creditor, he or she will have priority for the amount of judgment debt over the other judgment creditors." With respect to the above notions and the fact that whenever the immovable property (subject of the question) has not been attached through Reg. Dept., the executive measures are not possible and attachment of this property with two relief writ of attachment in one date and under one No. is not possible, it should be registered under two Nos., in this case the guideline of action for bailiff for observance of the priority is the No. that has been registered initially (smaller No.) that is the creditor who has been succeeded to introduce the property and attach it earlier, will have the priority right for collection of his claim.

391- In case the judgment creditor that is prior regarding property attachment, does not take measure to obtain the execution writ, what option has the other judgment creditor if the property is sufficient merely for the first judgment debt?

Opinion of nearly the unanimity of votes of the members of the commission present in the session dated Nov. 1, 2007

The case reveals the judgment creditor has attached the property of the judgment debtor prior to the other judgment creditors and the value of the attached property is equal to the first judgment debt but he does not request to obtain execution writ. The question is that in such a case, can the second judgment creditor request to obtain execution writ or not?

In reply, it shall be said that we have no text of law that the judgment creditor is to request to obtain execution writ after the judgment becomes executable and in a stipulated time afterward, even with making of the writ if the execution operations are not followed up and the issued writ becomes ineffective after 5 years, the judgment creditor can request for a new writ again from the court (Article 168 of Law for Execution of Civil Judgments) Therefore in subject at hand the priority right that the first judgment creditor achieved at the attachment of the property and its value is not more than the judgment debt, as this right is not waived it will remain in force. So there is no turn for the second judgment creditor, but if the second judgment creditor claims that the claim of the first judgment creditor is fictitious, he can object the rendered judgment as third party opposition. If the claim is proved to be fictitious and the necessary decision is rendered, the attachment will be lifted. In this case the second judgment creditor can request for the executive measure concerning the property for himself.     

392- Some of the costumers of the Pawn Bank present fake or low purity and worthless gold plates (according to the evaluation) to ask for a loan and it is evident that they cannot succeed; What will be the legal measure of the bank regarding the person brought the gold plates and what the bank can do regarding the discovered fake and low purity gold plates?

Opinion of nearly the unanimity of votes of the members of the commission present in the session dated Nov. 29, 2007

By evaluation and discovery of the fake and low purity gold plates that presented to the bank by some of the customers to ask for a loan, two suppositions are reviewable: First, the customer is not aware of the fact that the gold plates are fake and of low purity: in this case no loan can be obtained and it is evident that the property should be returned to him by refusal of his request, second, he knows the fact that the gold plates are fake and of low quality and his purpose is to acquire the property fraudulently; in this case, as the bank is obliged to declare concerning their type and value by evaluating the properties, if after evaluation, it becomes clear that the presented properties are fake and of low quality, in this case no facilities belong to the person as per the bank regulations. On the other hand no offense has been occurred because the bank has performed its duty correctly and the applicant measures that is presentation of the properties even if the owner knows the fact that they are fake or of low quality, is not subject to any of the offences, because doubt cannot be a basis for crime and punishment. The measures of the applicant may be strictly subject to Note 1 of Article 41 of Islamic Criminal Law even in this case, attempting is not fulfilled while the mentioned properties may be of low quality but they are not without value, and finally if the customer succeeds to receive the facilities, he is to repay them. According to the above notions, there is no crime and the bank has no obligation to invoke Article 29 of Criminal Procedure Code but the properties should be returned and his request be rejected.  

393- Someone is adjudged to transfer and deliver an apartment from the total 20 units to the judgment creditor without determination of the unit No., if all the units (all 20 units) have been transferred to the others, is action of the judgment creditor acceptable under title of transfer of another’s property? If the answer is positive, how can returning of the property be performed?

Opinion of majority of votes of members present in the commission in the session dated Nov. 29, 2007 and Jan. 31, 2008

The subject is of the examples of Article 1 of the Criminal Law concerning transfer of another’s property in 1929 and Article 1 of Law for Aggravation of Punishment of Perpetrators of Embezzlement and Fraud and Bribery and regarding the return of the property, as in this case, it is not possible, the criminal court should render judgment for payment of the current price of the apartment according to the opinion of the expert.

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+Thesis

*Res Judicata of a Criminal Matter in a Civil Action

Seventh Part
Prepared by: Batoul Ahani

In continuation of this issue, among the conditions of effectiveness of criminal case on a civil one, is unity of subject matters, for example, study of actus reus and mens rea prepares grounds of the unity from criminal and civil viewpoint. In physical element, it has been said that the main condition and axis of the unity in the investigation of issues is that there is identity in the act surveyed in crime actus reus and the action which is fundamental for liability in a civil action. In this part, the writer discusses the mens rea and if the concepts of civil and criminal fault are the same? Some believe in civil and criminal fault unity but the writer regards its basis, illogic and its results indefensible and another opinion is differentiation and dualism between civil and criminal fault which has been studied in detail.     

* Title of the thesis was “Doctrine of a Penal Matter Adjudged in Civil Action” which has been changed to the current title by opinion of one of the law knowledgeable individuals.  

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A Selection of World Legal News

1-     Declaration of support of Malaysia Head of Supreme Court from the suggested amendments in this country judiciary  

2-     Saudi Guantanamo Bay detainee plans boycott of military commission trial

3-     UN security council should address MNF-Iraq detainee policies: HRW

4-     Spain court rules against extraditing Peron to face Argentina "Dirty War" Charges

5-     Woman extradited to Michigan after 32 years as fugitive

6-     Denmark government to propose headscarf ban for judges

7-     Studios Win $ 100 million judgment against Torrent Spy

8-     Pakistan court clears Bhutto widower of smuggling charges

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 Foreign Part

Obstacles in Joining the Islamic Republic of Iran to the Convention of Non Torture & Inhumane or Humiliating Behavior or Punishment

Tarahhom Asadian,

Commonly, the word torture is applied for the measures under which a person is put under pressure, physically or mentally for obtaining confession and as often the accused does not voluntary confess at the beginning, this method may be used against the accused.

Prohibition of Torture in the Islamic Republic of Iran Laws

In the divine law of Islam (as the human is believed to have prestige and natural greatness) physical torture is an indecent and forbidden affair and applying rights resulted from it as well as confession received in this method is not effective. In Iranian laws, torture is a criminal act and its perpetrator is entitled to punishment.

Effects of Prohibition of Torture in Iran Laws:

1.      Legal acts fulfilled with torture are ineffective.

2.      The confession resulted from torture is ineffective.

3.      Punishment of torturer

Convention of Non-Torture & the Islamic Republic of Iran’s View on it

Result

It is clear that what has been mentioned regarding necessity of non-joining of the Islamic Republic of Iran to Convention of Non-Torture does not mean the confirmation of torture and its acceptance as a lawful measure. Therefore, as described, torture is prohibited in our laws and the torturer is punished and the legal acts resulted from torture is cancelled but the reason for opposition of joining  to the Convention is that this Convention regards many of our canonical and legal punishments as torture (based on articles 1 & 16) and persistently asks for their abrogation and obliges the member governments to cancel the punishments that are inhumane and humiliating  based on the Convention’s definition as soon as possible.

As a result, it can be said that while we disagree any type of torture and regard it a criminal measure, we do not construe legal punishment as torture and consider its applying in line with the state’s criminal policy for keeping public order and reserving the society rights as a necessary affair.

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The Month’s Guest

Statements of Mr. Rabiaa Eskini, Ph.D.

Prepared by: Seyed Ebrahim Mahdiyoun

The history of check is among the most important issues which is related to the courts and public prosecutor’s offices… Check is an instrument by which the issuer collects the amount that is before the bank or transfers it to others. In Iran the regulations of check have been derived from France law.

But in practice, the individuals - whether in Iran or abroad – do not use the check as same as the law prescribes. Since the check is a mean for immediate payment, so the date of payment is not applicable for it and it has merely date of issue.

Whether in old laws (trade law and check issuance law) or in the following laws, the date of payment is not set forth. In spite of this, check is used as a credit mean – such as draft.

In case the holder and issuer agree that it is paid at the later (future) date, there is no problem legally because if the check has no date, it is null and void (that is not a check).

In our law, there is the same. The Trade law regards date of issue as one of the principal conditions of the correctness of check, and in practice the banks do not pay the checks without date. So if a check is drawn, the bank is liable to pay it. But check is the same instrument as the law accepts. If it has no date it is null and void but with an unreal date, it does not become null and void.

I believe that if check has date of issue and date of payment, its payment date should be ignored because it is null, so the holder can refer to the bank at the inserted date as date of issue.

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Article

An Introduction to International Police (INTERPOL) & NAJA INTEPOL

In this article, the following cases are studied:

Ø  History

Ø  Commissions

Ø  Organization & Institutions of Interpol

1.      General Assembly

2.      Executive Committee

3.      General Secretariat

4.      Interpol of the Member Countries

5.      Counselors

Ø  International Declarations

1-     Blue Notice – Enquiry

2-     Green Notice – Warning

3-     Yellow Notice – Missing Person

4-     Black Notice – United Ratified Body

5-     Red Notice – Wanted

5-1- Contents of Notice

5-2- Identity Particulars

5-3- Judicial Data

Ø  24-Hours Communication System

Ø  Interpol Signs & Marks

v  An Introduction to Department General of NAJA INTERPOL

A)    Commission

-         Important Duties

1)      Extradition

2)      Issuance of Absence of Criminal Record Certificate in Latin

3)      Search for International Missing Persons

-         Stages for Search of International Missing Persons

4)      Measure regarding Identification of Anonymous Dead Bodies

5)      Measure regarding Tracking and Restitution of Stolen Cultural Goods

-         Stages for Measure regarding Tracking and Restitution of Stolen Cultural Goods

-         Acquiring Permit of Measure from our Country Judicial Authorities

-         Announcement of the Case to the Interpol of the Country to which the Stolen Case Entered for its Discovery & Restitution

6)      Investigation of Offences Against Property & the Person in Abroad

7)      Information Exchange with the World Countries Police during 24 Hours

8)      Prosecution of Criminals Worldwide in the Framework of the Determined Rules

9)      Prosecution & Tracking the Foreign Criminals

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Article

Contractual & Tortious Civil Liability Regarding the Court Jurisdiction

Fereidoun Nahreini, Attorney-At-Law

In this article, the difference of two types of contractual and tortuous civil liability is studied from viewpoint of the competent court. We are going to see if the type of civil liability, contractual and non-contractual, does affect on the courts jurisdiction or not?

There is no doubt that the main discussion is within the limits of the courts’ domestic jurisdiction, otherwise this subject will not apply concerning the inherent jurisdiction except in the special cases that it may cause change according to the legal structure and type of liability which will be studied further.

First Part: Difference regarding Legal and Criminal Aspects

First Chapter: Jurisdiction of Court of Law

Second Chapter: Jurisdiction of Criminal Court

Second Part: Difference regarding the Domestic (Relative) Jurisdiction of Courts

First Chapter: Jurisdiction of Court of Residence of the Defendant

Second Chapter: Jurisdiction of Court of Place of Contract Conclusion & the Place of Carrying out of the Obligation    

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Article

A Criticism on Form of a Deed: Attorney in Signature

Written by: Parviz Rezaei

By using deed of attorney in signature, the attorney has merely right to sign the registered deed as a result this power of attorney is a work power of attorney (so it is exempted from payment of amounts which should be paid in drawing up of sale power of attorney such as tax, registration fee etc.)

This articles deals with the fact that is this deed under title of attorney in signature different from the common deed in notary public offices under title of sale power of attorney or not? Or are both naturally same regarding the registration regulations and legally?

The writer believes that in spite of apparent differences and the two different titles, both deeds have a unique nature and there is no cause for their difference at least regarding the registration regulations.