Editor in Chief’s Note


In this issue, the editor in chief’s note is allocated to description of the outstanding particulars of the deceased Professor Ayatollah Marashi written by one of his students. Of his specifications his observing to justice and his belief in modernism in the jural issues are important. One of the cases that the professor believed, was “In analysis of the judicial issues, the subject should not accept without any reason merely due to belief of the majority of the intellectuals but sometimes consideration to the minority’s opinion is solution of our current society.”



A Selection of Latest Legal Approvals

Some points about formalities of applying Article 18 of Amendment Law of Establishment of Public & Revolutionary Courts Law approved in 2006 (Authority of Chief of the Judiciary for Rehearing)
Public courts of justice administration are competent for investigation of the objection of non-profit making schools founder(s) regarding the decision of supervision council.
In case of omission of the worker in discharge of the assigned duties, the employer can cancel the work contract only after the positive opinion of the Labor Islamic Council.
Acquisition of lands and buildings excessive to extent approved in the public, civil and military projects is subject to Civil Law rulings. (Taking satisfaction of the owner is necessary)
Disciplinary violations of Experts Association are not subject to limitation of actions.
Three-month respite for investigation of the cases remaining from before 2007
Construction of building excessive to the authorized density is not permitted by claim of oral agreement of the municipality.
Coordination with International Affairs Department of the Judiciary regarding correspondence and measures related to diplomatic and consulate officials
Amendment of Some Articles of Bylaw for Incidental Attorneyship
1) Obligation of the Public Prosecutor to claim damages and losses of the governmental properties
2) Acceptance of request of the organization concerning the employee’s temporary suspension
3) Non-report of misconduct to the State Inspectorate General Organization by administrative departments is an offense.
4) Permit to use the retired experts in the organization
Calculation of the difference price of Diah after taking permission
Law for Amendment of some Articles of Law for the 4th Plan of Economic, Social and Cultural Development of the Islamic Republic of Iran and Execution of General Polices of Principle 44 of the Constitute
-Law for Execution of General Policies of Principle 44 of the Constitute was at last approved by the Islamic Consultative Assembly and confirmed by Expediency Council in 10 Chapters, 92 Articles and 90 Notes. Of the specifications of the mentioned Articles is establishment of different institutions such as Delegation Board, Competition Council, Supreme Council of Policy Making of Principle 44, Appeals Board, Competition National Center, and among all, judicial task of Competition Council with certain competences and possibility of investigation can be mentioned. Before expressing its selected Articles, parts of the Law will be mentioned:
* Parts of the Law for Execution of General Policies of Principle 44:
-Non delegating the telecommunications mother networks, main network of post basic services distribution, military, disciplinary, security confidential or necessary products, National Iranian Oil Company and Gas Company, oil and gas mines, Central Bank, Melli Bank, Sepah Bank, Sanat Va Madan Bank, Toseeye Saderat Bank, Keshavarzi Bank, Maskan Bank, Toseeye Taavon, Central Insurance, Iran Insurance Company, electricity transfer major networks, State Aviation Organization, The Ports and Shipping Organization, dams, water supply great network, IRIB.
-The Judiciary’s obligation in determination of exclusive branches for investigation of the offenses and crimes resulted from execution of this Law and Law for Stock Market approved in 2005
-Obligation of the Judiciary for drawing up a bill for investigation of offenses and crimes, subject of the Law (6 months from date of Law approval)
-Competition council including 3 members of the parliament who are members of economics, plan and budget and industries and mines commission, 2 judges of Supreme Court by election and order of Chief of the Judiciary, on the full-time basis, 2 outstanding knowledgeable economists, 1 outstanding jurist consult and conversant in economic law, 2 knowledgeable members in trade, 1 knowledgeable member in industry, 1 knowledgeable member in infrastructure services, 1 expert in financial affairs, 1 member from Chamber of Commerce, 1 member from Cooperation Chamber.
-Not having substantial condemnation is one of the conditions for election of the members for achievement goals of 9th Chapter of Law for Competition Facilitation and Prohibition of the monopoly
-Competition National Center in form of Independent Governmental Institute under supervision of the President
-Decisions of Competition Council are valid if verdict of at least a judge is registered in it.
-Authority of the Competition Council is investigation and entrance to the places, storerooms, vehicles, computers and research and summoning witnesses and defendants by permit of the member judge or one of the five judges determined by the Chief of the Judiciary for discovery of Anti-competitive processes.
-Offenses, subject of Chapter 8 of Trade System Law, are within the competence of the competition council if disturb the competition.
-Publication of decisions of Competition Council or Appeals Board in the newspapers in case of having public aspect.
-Obligation of the bailiffs to cooperate with the Council, Appeals Board and Competition National Center
-Obligation of the Judiciary for encouragement of referring the economic cases to the arbitration and using the expertise capacities of the nongovernmental sector
Dispute Settlement Councils Law
By-Law of Commission of Amnesty, Mitigation of Penalty & Commuting the Sentence



Disciplinary Warning


Judgment No. 500 to 502 dated Jan. 17, 2005, drawn up by branch … of Judges’ Disciplinary High Court: “Measure of the Court of Appeals for recognition of rate of blood money is according to law.”
Carelessness of the Court of First Instance and Court of Appeals (Rejection of the petition due to the ownership of the land by the plaintiff himself)
A judge delivered the organizational house, that was transferred to him for his own residence, to one of his relatives to reside in.
Inattention to change of address of the defendant and serving the papers on the former address


One Vote, One Experience


1-Judgment No. 436 dated June 21, 2004, drawn up by Branch No. … of Tehran Public Court of Law
2-Judgment No. 1165 dated Dec. 6, 2004, drawn up by Branch No. … of Court of Appeals of Tehran Province
* Two persons agreed that one share of the total 6 shares of a real estate belonging to the first one to be transferred to the latter. The purchaser paid part of the price in cash and the remaining through check. Before due date, the seller took the check to bank and bounced it and issued the title deed in his name despite of the fact that the seller did not have right of cancellation before the second installment. The purchaser filed a suit. The court rendered judgment for cancellation of the ownership of the defendant and his obligation for transfer of the one share to the plaintiff.
Court of appeals rendered judgment that “the judgment of the court of first instance regarding cancellation of ownership of the defendant and his obligation for drawing up the official deed of the said property in the name of the plaintiff are not enforceable because as the ownership of the defendant is cancelled, he cannot transfer that share to the plaintiff and rather the seller should be enforced to transfer that one share to the purchaser.”



Around the Table


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

394- Having informed of the fact that a devisor had transferred the property to the third person, the heirs took a duplicate deed of the real estate from Reg. Dept., Does have this act, a criminal title?

Opinion of nearly the unanimity of votes of the members of the commission present in the session dated Jan. 3, 2008

It shall be said that if the transfer of the mentioned property had been through an official deed and the heirs took measure regarding taking a duplicate deed, then their act is not a crime and it is the Reg. Dept. which has committed a violence, but if the transfer had been through an ordinary document and the heirs refused to draw up the official deed in the name of the assignee, in this case it makes no difference that the heirs have the original deed or the duplicate one, the assignee can ask for their obligation to draw up the official deed by submission of petition. However, the mere measure of the heirs for taking duplicate deed, concerning the question, is not considered as a crime.

395- Pursuant to Article 12 of Urban Land Law, a company’s land has been announced as waste land. The company has requested for cancellation of opinion of commission of Article 12. After investigation, the court held for cancellation of the said opinion and transfer of title deed in the name of the company. After Finality of the judgment, it became clear that the mentioned company had been dissolved and the liquidation operations terminated too and its legal entity had been removed. How the judgment can be executed in these circumstances?

Opinion of nearly the unanimity of votes of the members of the commission present in the session dated Jan. 3, 2008

If the liquidation process has been performed correctly, and the creditors have collected their claims and other properties of the company have been divided among the shareholders, in this case, the names of the final shareholders of the company and number of their shares should be inquired from the Company Reg. Dept. and the real property, subject of question, should be divided among them according to their shares.

396- Is payment of blood money from public treasury regarding the person who committed intentional or unintentional bodily assault and battery, permissible if he is not identified?

Opinion of majority of votes of the members of the commission present in the session dated Jan. 3, 2008
According to Chapter of Responsible for Payment of Blood Money from Islamic Criminal Law and regarding to Article 313 of the mentioned law, the quasi intentional and international crimes, in case of having the inserted conditions of the mentioned Article, are subject to payment of blood money from the public treasury. With respect to this fact and the mentioned Article and philosophy of prescription of public treasury and necessity of compensation of the damage incurred by the injured party, by virtue of the conditions inserted in the mentioned Article and the concerned Law, it shall be said that assault and battery, subject of the question, as well as murder are subject to payment of blood money from public treasury.

Report of Scientific Meeting of the Judges of Public Prosecutor’s Office, Dist. 6 in Tehran on May 13, 2008

- Is attachment of the key money permissible in execution of Article 696 of Islamic Criminal Law or Article 2 of Law for Manner of Execution of Financial Convictions?

Opinion of majority of votes of members:
As customarily, the key money has financial value and the law has accepted it as a property, so its attachment will not face any problem but as there is a third party’s (the landlord’s) right regarding the key money and as its transfer depends on satisfaction of the landlord, its sale is not possible without satisfaction of the owner or the ones who have any right.

Report of Scientific Meeting of the Judges of Public Prosecutor’s Office, Dist. 6 in Tehran on Apr. 29, 2008

- A person complains against another under title of usury. The court of appeal acquits the accused in the final judgment because the issued checks by the complainant are not collected and the crime of usury has not been proved. After rendering judgment, the accused refers to the Execution Department of the Registration Organization and attaches the complainant’s property and collects the amount of some of the checks. Again the complainant objects under title of usury. 1. Does the theory of res judicata prevent the repeated investigation of usury? 2. If the theory of res judicata prevents investigation of the subject, can the subject be investigated under title of unlawful acquisition of property?

1. After discussion and taking vote, 14 participants had opinion for prosecution of the accused and 14 participants had opinion against prosecution of the accused due to the fact that it is subject to the theory of res judicata.
Opinion of majority of the members:
2. As description of a criminal act is by the judge, when a court has investigated an act under a particular title (such as usury) and rendered the judgment, the criminal cannot be prosecuted again by changing the criminal act description. In the meantime, crime of unlawful acquisition of property is a general crime, and we can use it when the act is not under title of any of other criminal titles.

Report of Scientific Meeting of the Judges of Public Prosecutor’s Office, Dist. 6 in Tehran on Apr. 22, 2008
- A person presents a check to the bank, which has been issued to the order of “A” and has not been endorsed, and by order of the bank manager, the amount is paid to the bearer. “A” objects against the bank manager and the one who collects the check amount. Is there any charge for the bank manager and the one who collects the check amount? If yes, what is their accusation title?

Opinion of majority of the members:
The one who collects the check amount can be prosecuted under title of unlawful acquisition of property. Because by Article 2 of Law for Aggravation of Penalty of the Receivers of Bribe and Perpetrators of Robbery and Fraud approved in 1988: “Anyone who acquires generally an amount by a method that has no legal legitimacy, it is considered as criminal and will be convicted.” In this issue, while someone finds a check, he has no right for its collection, and if he collects it, he acquires a property that he is not entitled to it, so the one who collects the check can be prosecuted under the title of unlawful acquisition of property and the bank manager under the title of accessory thereto.

Report of Scientific Meeting of the Judges of Family (No. 1) Judicial Complex

- What does the law mean by the word “Court” in Article 14 of Law for Family Support in attaining breach of each of the parties of performance of the duties related to custody right or prohibition of the visit of child and determination of the conviction amount, Rls. 1,000 to 10,000?

Opinion of majority of the members:
By the word “Court” in Article 14 of Law for Family Support in 1973, it is meant the same court rendering the verdict of custody and visit, that is the Family Court, and the legislator has permitted the family court, that is court of law for execution of visit and its sanction. In the meantime, the subject of Article 14, is proving the breach and is a separate affair from penal investigation in case of proving crime and at the time of approval of Article 14 (1974), the public prosecutor’s office system was governing but regarding visit, the legislator has made such a sanction for the rightful person practically.


Thesis
Res Judicata of a Criminal Matter in a Civil Action
Last Part
Prepared by: Batoul Ahani

In continuation of this issue “Does result of criminal actions affect the civil actions?”, in this part, the writer states that this result does not affect every where. She believes in separation. She sets forth two factors for clarifying the issue: 1. Physical factor, 2. Mental factor.
In mental factors, such as minor and insane, there is no responsibility because they have no mens rea but they have liability.
In physical factors, such as satisfaction, force majeure, law, superior order, self-defense, she believes in separation.
In all of them, there is no responsibility. In Law and superior order and self-defense, there is no liability. In force majeure, there is liability but in satisfaction, she believes in separation. If it is disturbing public order, it has liability otherwise it has no liability.



Selection of World Legal News

1-Iraq Criminal Appeals Court Judge Assassinated
2-ICC Holds Confirmation of Charges Hearings on Congo Militia Leaders
3-Afghanistan Juvenile Justice System Must Be Reformed.
4-Ohio Supreme Court Disbars County Judge
5-Court Tosses $ 785,000 Award Over Cancer Death
6-Italy High Court Decides No Trial for US soldier Accused in Iraq
7-Florida Prison Still Beset by Contaminated Water


Foreign Part
Alternative Punishments for Delinquent Juveniles in Europe
Now juvenile delinquency control has caused public concern in the European Countries judicial system. For this reason, this study is going to show that how do these counties treat this problem? And as a result, the recent amendments in the systems of two countries of Holland and England are analyzed.
England and Holland have made many policies for juvenile delinquency control while these amendments have been not predicted in the other countries.
1)English & Dutch Amendments
-Expansion of New Sanctions
-Decrease of Proceedings Term
2)Alternative Punishments
-Reprimand & Control
-Order for Damage Compensation
-Punishments of Public Utility
3)Correctional Measures
4)Deterrent & Preventing (Persecuting) Policies
-Conditional Release for Short Punishments by Compulsory Carrying of Electronic Handcuff
-To Assign the Parents as Responsible
-Cooperation of all the Affiliated Institutions


Article
Forty Amending Recommendations

Mohammadreza Khosravi
The writer has recommended forty points regarding the judiciary, 2 of which are in Legislation Section, 2 of them in Academic Educations Section, 10 of them in Staff Selection Section, 4 in Complementary Educations Section and 22 are General Recommendations, 5 of which we set forth herein.
-Information supply through numerous and specialized legal periodicals is recommended. This is the cheapest, simplest and more lasting method for transfer of up-to-date knowledge to the judges and employees of justice administration. Reinforcement of the legal publications and distributing them among the justice administration employees should be observed.
-Public education of laws and regulations through radio and TV and other mass media should be undertaken by the judiciary. In the advanced communication era, the available possibilities should be used for making people acquainted with citizenship responsibilities.
-The judiciary should prevent any discrimination in delegation of the judicial and administrative positions and measurement for change of the mission location and any other privilege.
-The judge should be prevented from purchasing and building and selling and any other occupations same as these. This prohibition is not to be legal rather supervision of the authorities and the judicial custom is enough.
-Appointing the judge to superior judicial positions should depend on passing the lower positions or at least it is in conformity with his working background in the judicial system. For example, no judge should be assigned as a judge of the court of appeal before passing ten years and assigned as judge of the Supreme Court before passing twenty years and such policies should be observed in the occupational promotion so that the judges obtain their position competence during the years.


Article
Criticism
Mansour Dehnamaki, Attorney at Law
In this article, the writer presents a criticism to article of Writ of Litispendencia and its Place in Iran Judicial System by Abolfazl Dankoub which was published at Ghazavat Magazine No. 49. It seems that there are errors in understanding and interpretation of Article 13 of Criminal Procedure Code and judgment No. 529 dated Oct. 24, 1989 of General Board of Supreme Court and this interpretation is contrary to the available regulations. It is important to know that the legislator has made principal changes as described in Article 13 in 1999 regarding concept of writ of litispendencia as described in Article 17 of Criminal Procedure Code, amended, approved in 1956 and even has overshadowed purport of precedent verdict of General Board of the Supreme Court. With respect to clear text and concept of Article 13 of Criminal Procedure Code, extent of litispendencia regarding the opinion of the investigating judicial authority is not limited to immovable property and special authority and its extent includes immovable and movable properties etc.

Article
Social Punishments in the Court of Appeals of Tehran Province

Speech of Mr. Najafi Abrandabadi, Ph.D.
Prepared by Reza Iranmehr

Sanctions of the criminal law due to its penal forcible specifications, usually transmit to the other fields of the law. Among the legal sanctions including administrative, legal, civil, trade and criminal ones, sanction of the Criminal Law is the last weapon of the state legal system. In moral issues, sanction has social aspects more and has no effects, that is, the individual should pay for it himself, which is the bad reputation that is brought for him and following to it, some problems will be made in the individual’s practical life. But in the criminal sanction, many consequences are undertaken by the criminal and the government. History of criminal law can be divided into four periods regarding the punishments:
1.Period of bodily punishments, 2. Period of deprivation of freedom, 3. Period of financial punishments, 4. Period of social punishments
Types of Social Punishments: 1. Control, 2. Public Services, 3. Deprivation of the Social Rights



The Month’s Guest

Statements of Mr. Kashani, Ph.D.
Prepared by: Seyed Ebrahim Mahdiyoun

Irrevocable agency is an issue which the courts are encountered with. Agency means empowering someone, that is named representation in the civil law “It is given on the basis of trust. The agency is a contract that the agent’s personality is the main reason for the contract, whether in agency in the contracts or in the claims. On this basis, the agency is a revocable contract and whenever the principal divest trust from the agent or he (she) decides the agent stops his (her) task, the agency is cancelled. What is the philosophy of irrevocability in the agencies which have the condition of irrevocability?
For example, suppose that someone refers to hospital in the emergency conditions and is become bedridden to save his/her life and he is being operated. If he has no cash money but he has been insured (treatment services or complementary insurance), the hospital can use this insurance, so the hospital is empowered by the patient, with an irrevocable condition so that the hospital charges are paid through insurance. If we pay attention to this example, we understand that in this agency, the attorney is the beneficiary but in the other kinds of the agency, the principal is the beneficiary. But there are the other types of agencies that given by way of sale. Most of the vehicles are transferred by power of attorney, with an irrevocable condition because a long time is needed for police plate registration, payment of charges etc. but the parties agree regarding the object of sale and price, that is named “sale by agency” in our custom.
Some believe that we cannot determine condition for the contract while it is revocable but the others say if we would like to make condition for the revocable contract, we should conclude another irrevocable contract. The courts should not pay attention to the existence or nonexistence of an original irrevocable contract. The argument is that the principal undersigns the deed and admits the existence of an irrevocable contract, and his denial after admission is not hearable. There is no special prediction in this regard in the civil law, except that the principal can dismiss the agent unless he is deprived of this right through an irrevocable contract.
The contracts of agency with a condition of irrevocability, create some problems for the society, courts, agent and principal. For example, if the vehicle which is the subject of irrevocable agency, is used for carrying narcotics and the vehicle is confiscated, is this confiscation considered against the principal or the attorney?


Article
Investigation of Cyber Crimes

Zakiyeh Ezzati,
In this issue, this part is allocated to the investigation of cyber crimes.
Introduction: Quantity of using Internet has been progressively increased during the last years. Some of the research shows that number of Internet users in comparison with users of radio and computer has been increased intensely.
Parallel with increasing number of Internet users, quantity of purchase and sale of goods and services through Internet or electronic trade are adding.
Unfortunately, parallel with increasing use of Internet and electronic trade, we witness a special increasing in rate of cyber crimes.
Cyber crime is a penal crime that is possible by appearance of computer technology that is, it can be said that in fact, cyber crime is a traditional crime that has been changed by help of application of computer remarkably in the manner that the law executive officers need basis understanding and identification of computers for discovery and investigation of this crime. Some of the scientists believe that other information technology systems such as mobile and some of electronic appliances are involved in cyber crimes too.
At the end, a short history and types of cyber crimes are mentioned: 1. Crimes in which the computer itself are targeted or “computer crimes”. 2. Crimes in which the computer is used as a mean for committing a traditional crime or “computer related crimes”. Then preliminary investigations and crime discovery and process of updating cyber laws in the countries explanations are inserted.

Foreign Part
An Introduction to Legal-Judicial System of India

Mohammad Javad Shariat Bagheri
India has one of the oldest legal systems of the world. Its legal and judicial history traces back many centuries ago and has a live custom which has been mixed with the life and dynamism of its variable people. India is an independent democratic republic. This republic has a federal system with a government in form of parliament in the states and unions, an independent judiciary, guaranteed constitutional law and government policy principles with the goals which are not compulsory in the law but are basical in governing the nation.
In this article, the following titles are described: Law Sources, Law Execution, Law Application, the Judiciary, Supreme Court Charter, Supreme Court Office, Public Prosecutor General, Supreme Court Advisors: A- Senior Advisors, B- Advisor’s Assistant, C- Other Advisors, Supreme Court Competence, Actions Related to Public Interests, Judicial Assistance Regulations, Court’s Advisor (Court’s Friend), High Courts, Counselor, Voluntary Agencies, Supporting Human Rights.



Article

Dear Mr. Dr. Behzad Poursiah,
Deputy in Research of Islamic Consultative Assembly Research Center
In the current world, in most of the countries, procedural laws have been separated from the substantive laws. This separation which is customary in our country from about 90 years ago, has many practical and theoretical results and effects including: procedural laws are not retroactive, they are interpreted extensively, they have no overseas effect and they are executed promptly, while substantive criminal laws are not retroactive and that they may have overseas aspect and even foreign substantive criminal laws are executed in national laws territory, the method which is prohibited in the procedural criminal laws territory. To apply the specifications of each of these two types of laws precisely, each one is written in separate law collections so that the judicial authorities can recognize them easily and each one is interpreted and executed concerning its nature. To separate “Substantive Criminal Laws” from “Procedural Criminal Laws”, there are several scientific rules, on which the separation is based. For example, two important rules can be mentioned: A- “Goal” of Criminal Laws, B- “Subject” of Criminal Laws. In the current study, it has been tried that by using each of the above rules and the other recognized criteria, separation of the procedural and irrelevant articles of punishment in the Islamic Criminal Law is presented precisely so that a Legal Bill without the procedural regulations is submitted to the members of the Islamic Consultative Assembly.
At the end, it can be mentioned that the separation, has been performed merely about first chapter of the bill (generalities). Concerning Islamic punishment, retaliation and blood-money, no measure has been taken in spite of the fact that there is possibility for separation in this territory. Maybe some of the jurisprudents do not approve this separation and believe it is contrary to the Islamic jurisprudence. But I think that this separation is not contrary to the Islamic jurisprudence; rather it presents the traditional jurisprudence in the modern and favorable method.
In case of confirmation of the above cases, the Islamic punishment, retaliation and blood-money can be discussed and contrary to the existing traditions in the present jural-legal literature, each one can be discussed in one of the followings: 1. Substantive Regulations, 2. Procedural Regulations, 3. Executive Regulations.
Dr. Mahmoud Akhoundi