Editor in Chief’s Note

In a claim filled in the court, the plaintiff requested the court to confirm the revocation of the contract and the court of first instance rendered judgment for revocation but 4 pointes have not been observed in the judgment: 1- Revocation is one of the rights of the parties to the contract and the necessity for cancellation of a contract is making right of revocation and then applying it. 2. The court does not have right of cancellation of a contract but it can recognize and announce the cancellation intended by the rightful person. 3. Effect of cancellation is from the time of its announcement and has no retroactive effect. 4. The condition relied upon in the contract does not amount to a right of revocation because it has been emphasized that if delay in accomplishing the project is more than 3 months, the contract is cancelled and there is no need for declaring the intention of the beneficiary.

A Selection of Latest Legal Approvals

•Law for amendment of some articles of Islamic Criminal Law approved on May 22, 1996
• Experimental instruction of standards for investigation time of judicial cases
• Instruction for establishment of specialized branches and complexes for investigation of traffic violations and offenses
• Bylaw for determination of occupational groups and rules related to group promotion and change in judges’ position
• Circular letter to the judicial authorities throughout the country regarding Customs green sheet
• Circular letter to the judicial authorities throughout the country regarding cash fine of smuggling narcotics
• Law for Extension of Experimental Execution of Islamic Criminal Law
• Repeated change of Bylaw for Commission of Pardon and Mitigation of Punishment of the Convicted
• Circular letter to the judicial authorities throughout the country regarding establishment of specialized branches of dispute settlement councils in the existing prisons of the provinces
• Law for Suggesting the Proper Course for the Press Jury.
• Instruction for manner of establishment and commissioning itinerant courts
• If the Chief of the Judiciary recognizes that a judgment is contrary to the religious law, it will be reheard.
• Privileges of service in the deprived and remote and war areas belong to the judges too.


Disciplinary Warnings

According to Article 129 of The Law for Enforcement of Civil Judgments, at the time of bid, 10% of the total price is to be collected from the highest bidder and he should pay the remaining amount during one month.
If he does not pay the remaining amount during one month, the bid’s charges are deducted from the 10% and the remaining is forfeited for the government and another bid will be held.
In the case inserted herein, the highest bidder has paid the 10% and has not paid the remaining amount during one month, so as per Article 129, the bid should be held again but the judge has violated the Article.


One Vote, One Experience

- Object of Claim: Revocation of trademark of the first defendant and registration of statement of the plaintiff and collection of the goods marked “…” and prevention of the defendant from using it again.
- Procedural History: The plaintiff submitted a petition under the above object against the defendant that after referring to the 3rd Branch of Tehran Public Court of Law was registered, the legal formalities were performed, the court session was convened at the extraordinary time, the investigation was completed regarding the case content and the judgment was rendered.


Around the Table

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

401- The lessor has submitted the petition for adjustment of the rent-charge and compelling to draw up an official deed against the lessee and the same issued but the plaintiff (judgment creditor) has not requested for an execution writ. Can the lessee request for drawing up an official deed of lease in the same case relying on Article 9 of Lessor and Lessee Relations Law 1977?

Opinion of nearly the unanimity of votes of the members of the commission present in the session dated May 1, 2008
With respect to the above question, it shall be said that the subject of Article 9 of Lessor and Lessee Relations Law 1977 (regarding the manner of execution of final judgment) is one of the special cases inserted in the Article 4 of Civil Judgments Execution Law that reads: “ … unless another manner has been prescribed in the law…” For this reason and concerning the manner of the execution judgment inserted in Article 9 , there is no need for an execution writ for drawing up of the deed subject of the question but upon request of one of the parties, the court serves a copy of the judgment for drawing up of deed of lease to the notary public office.

402- With respect to the concept of Article 302 of Islamic Criminal Law, the grace period for payment of blood money (especially blood money for quasi intentional crimes including driving offenses) has been determined and on the other hand regarding jural fundamentals and circular letter of the Chief of the Judiciary which indicates compelling of the judgment debtor to pay at least half or one third of the blood money (in quasi intentional or simple mistake crimes) at the end of each year: 1-Can the complainant demand the judgment debtor half or one third of the blood money after finality of judgment and expiry of the grace period of one year after the accident? 2- If so, in case the judgment debtor refuses to pay it, is he considered a refusing party and can be detained in prison according to Article 2 of Financial Convictions Law and Article 696 of Islamic Criminal Law?

Opinion of the members of the commission present in the session dated May 1, 2008
Note 1 of Article 302 of Islamic Criminal Law reads: Delay from these grace periods (the periods inserted in clauses of Articles 302 for payment of blood money) is not permissible without agreement of the parties. The contents hereof indicate that the judgment debtor can take measure regarding payment of the blood money subject of the judgment up to expiry of the grace period in the mentioned Article. In the meantime, at the expiry of the deadline, the parties can agree another term for payment of the blood money. In this way, the judgment debtor cannot request for collection of blood money and in case of refusal of the judgment debtor for applying Article 696 of Islamic Criminal Law or Article 2 of Financial Convictions Execution Manner Law, regarding the above cases and concerning the text of the available law, we do not confront with silence or breach or brevity or conflict regarding the grace period of the blood money payment but regarding the jural fundamentals of Article 302 and the fact that the circular letter of Chief of the Judiciary has been issued based on the famous judicial decrees, in reply to the question, three opinions were offered: First- Judgment creditor can demand half or one third of the blood money (in quasi intentional or simple mistake offenses) one year after the killing but in case of refusal of the judgment debtor, he will not be detained. Second- In case of non-payment of half or one third of the blood money, the judgment debtor is subject to Article 696 of Islamic Criminal Law or Article 2 of the Manner for Financial Convictions Execution Law. Third – Half or one third is not applicable, the texts of the law is to be applied.

403- Does aggravation of a writ to temporary detention in the court is practiced as per Article 33 of Criminal Procedure Code?

Opinion of nearly the unanimity of votes of the members of the commission present in the session dated May 22, 2008
Objection to the temporary detention writ is a right of the accused - whether it is issued in the public prosecutor’s office or in the courts of first instance. Therefore if it is issued in the public prosecutor’s office, it is performed according to the regulations of Article 3 of Amendment Law of Law for Establishment of Public and Revolutionary Courts approved in 2002 but if this writ is issued at the court of first instance, since at present, it is performed according to Criminal Procedure Code approved in 1999 that remains in force, regarding the object of question, concerning explicitness of Article 33 of this Law, it is performed as per the regulations of the mentioned article. It shall be explained that the temporary detention writ can be objected when it is issued at public prosecutor’s office or courts of first instance.

Family Judicial Complex (1)
By Virtue of Single Article of Law related to right of custody approved on July 13, 1986, if one of the parents or another one prevents the judgment to be executed or refuses the child to be returned, the court rendering the judgment obliges him (her) not to prevent or to return the child and in case of opposing, he (she) will be convicted to custody up to the time of obeying and executing the judgment. How is the “manner of obligation” for non-prevention enforced by the court?

Opinion of the majority of votes:
What can be understood from meaning of “obligating” is completion of stage of issuance of the judgment and then finality of the judgment for custody and issuance of execution writ and beginning of stage of execution of judgment. Regarding the manner of compelling and execution of judgment, there is some differences between the courts: Some invite the judgment debtor after issuance of the execution writ and its service, in case of refusal from practicing the judgment, will invite him and explain the Single Article and serve on him, and in case of disobedience, the court orders for custody up to the judgment execution. But other courts, according to Article 2 of Executive Bylaw of Family Protection Law 1975, believe that there is no need for the repeated service and explanation of the Single Article. In the meantime, the end of the term of custody regarding the refusing person, is up to following the court’s judgment for delivery of the child or his (her) exit from custody (achieving the full age).

Public & Revolutionary Prosecutor’s Office, Dist. 6 of Tehran
How is objection of the public prosecutor to the writ of litispendencia? Can the public prosecutor object the writ of litispendencia in case of agreement?

Opinion of the majority of votes:
According to text of the law, writ of litispendencia needs approval of the public prosecutor and even if the assistant to the public prosecutor, who is expressing opinion, agrees the writ of litispendencia on behalf of the public prosecutor, the public prosecutor can object it again and approval of the assistant to the public prosecutor, who is expressing opinion, does not prevent objection of the public prosecutor. Of course this view has some opposing ones: Because the assistant to the public prosecutor, who is expressing opinion, has approved the writ in substitution of the public prosecutor and his approval is same as the approval of the public prosecutor, so the public prosecutor cannot object the writ again.


Selection of World Legal News

1- Malaysia judge frees blogger arrested under controversial security act.
2- S. Korean court grants coma patient right to die.
3- Iraq court directs US to free photographer detained for over 2 months.
4- Former Taiwan president indicted on corruption charges.
5- Mauritania authorities release arrested ex-president.
6- Khartoum struggles hard to get rid of crisis with ICC court.


Foreign Part

Criminal Proceedings
A View to International Processes & Rules

Second Part
This part is about more powers given to the public prosecutors in some countries. Initially, some powers had been given to the public prosecutors in small crimes, but then it expanded to the crimes of juveniles. In this manner, the public prosecutor can ignore the offenses of the accused and ask him to do something instead. For example he may ignore the offenses of a drug addict so that he quits his addiction. But the writer believes that these are deviational policies. Herein 3 reasons have been mentioned for this belief: 1. This power vested in the public prosecutor is violation of doctrine of presumption of innocence because the accused may be acquitted in the court. 2. Maybe if the public prosecutor does not have enough proofs, he uses his powers in this regard. 3. This manner gives the public prosecutor independence. Of course in, for example, Germany the public prosecutor is controlled through circular letters issued by superior authorities such as minister of justice.


Article

Non-Famous Opinions of the Deceased Seyed Mohammad Kazem Tabatabaei Yazdi in “Orvatolvosgha” in Comparison with “Javaherolkalam”
Students of Ph.D. of Private Law
2004-2005
Shahid Motahhari College

With respect to the common view of the deceased Seyed Mohammad Kazem Tabatabaei Yazdi in the legal and jural issues, it appears that his opinions can be compared with today’s world laws. Comparison of his views with opinions of the deceased Sheikh Mohammad Hassan Najafi (Javaher) in the subject of agency shows that Seyed Mohammad Kazem Tabatabaei, contrary to the famous opinion of the jurists who consider the agency as a contract, considers it as a unilateral contract or obligation.


The Month’s Guest

Lecture of Mr. Shahri
In this lecture Mr. Shahri sets forth two important points:
- If a deed of lease is subject to Lessor and Lessee Relations Law 1977, according to Article 9 of that law, each of the lessor or lessee can submit petition of execution of judgment for registration of a new deed.
- With respect to brevity and silence of Article 302 of Islamic Criminal Law and famous religious decree, the rightful person can demand 1/2 or 1/3 of the blood money in the cases of quasi - intentional or simple mistake at the end of year, otherwise and upon request of the judgment creditor, Article 2 of Financial Condemnations Execution Law applies.


Article

In this article written by Mr. Behrouz Javanmard, student of Ph.D. of criminal law and criminology in Shahid Beheshti University, the writer confirmed that writ of litispendencia (suspension of hearing until conflicting claims on ownership is decided) includes merely immovable property.


Article

Goods & Foreign Exchange Smuggling Judgments
Behrouz Beikverdi- Attorney at Law

“Are the Judgments rendered by Revolutionary Courts regarding crimes of goods and foreign currency smuggling objectionable and appealable?”
By virtue of Instruction for execution of Note 1 of Article 4 of the Law for Manner of Applying Governmental Punishments regarding Goods and Foreign Exchange Smuggling: “The judgments rendered concerning goods and foreign exchange smuggling cases are final and enforceable” but the mentioned instruction was amended by Chief of the Judiciary as: “The judgments rendered are same as other criminal judgments regarding finality and capability of revision and investigation authority.” The Full Bench of the Administrative Justice Court, thereafter cancelled the opinion of Chief of the Judiciary. But The Expediency Council in its interpretative opinion announced that “The Administrative Justice Court can give opinion regarding approvals of the Executive (the government) and it is not authorized to cancel orders of The Chief of the Judiciary, so the opinion of The Chief of the Judiciary remains in force.”
So it seems that the reply to the above-mentioned question is positive and …


Article

Governments Judicial Immunity and Their Property
Azim Sohrabi – Assistant to the Public Prosecutor General of Public Prosecutor’s Office, District 18

The Law for Approval of Convention of the UN Regarding Judicial Immunity of the Governments and their Property was approved in the Islamic Consultative Assembly and confirmed by the Guardian Council and published in the Gazette.
The Government Immunity is an international law concept and according to its principle a government is not dependent on another other government’s jurisdiction. The aim in approval of the above convention is bringing coordination in the governments’ measures. The goal of this article is to study how the regulations of this law, which are in part contrary to the procedural and substantive regulations that the courts are bound to observe, should be executed correctly so that the legal regulations and rules are coordinated with the world developments in exchange of goods, services and technology and prevent making international responsibility for governments for nonobservance of the convention regulations.
Section One- Introductory Issues
Subject One – Range of Inclusion of Law for Immunity from Jurisdiction
Clause One – Definition of the Court
Clause Two- Definition of the Government
Clause Three –Definition of Commercial Transactions
Subject Two- Privileges & Immunities beyond this Law
Subject Three – Law for Immunity from Jurisdiction is not Retroactive


Article

Study of the Concept of Deterrent (with a View to Lapse of Time)
Mohammad Hadi Fazlali – Interrogator of Tehran Public & Revolutionary Prosecutor’s Office

With respect to the fact that Criminal Procedure Code prescribes applying regulations of lapse of time merely regarding the crimes that their punishment are deterrent, it is important to recognize the concept of this punishment.
The divergence in the opinions and decisions of the courts regarding recognition of this concept cause of the study of process of enactment of the related legal regulations for discovery of the purpose of the legislator of this concept become the subject of this article.
In the Islamic jurisprudence, the punishments are divided into four groups: Hodoud (fixed punishments), Retaliation, Blood-Money, Tazirat (Punishment Having Maximum and Minimum Limits).
Based on this classification, three separate laws were approved: The Hodoud and Quisas Law (1982), Diat Law (1982), Tazirat Law (1983). Then The Islamic Criminal Law was approved in 1991 in which the deterrent punishment was defined.
Deterrent punishment is a punishment that is determined by the government for keeping order and observing the society interest in case of breach of the governmental regulations such as imprisonment, cash fine, closing business location, cancellation of business license and deprivation of the social rights and residing in a certain area and prohibition of residing in a certain area.”
In Article 16 of the same law, Tazir has been defined in this way: “Tazir is a punishment that its type and amount is not determined in the religious law and it depends to the judge’s opinion such as imprisonment etc.
Comparing the above two definitions, there is no substantive difference between them.
For example in imprisonment which is a example of both punishments, it is not clear that when it is an instance of Tazir and when a deterrent punishment.
Specially, the 2nd, 3rd and 4th books of the same Law were allocated to judgments of blood money, retaliation and Hodoud. The 5th book of Islamic Criminal Law was approved under the title of Tazirat and Deterrent Punishments in 1996. In 1999, New Criminal Procedure Code was approved.
This law announced “lapse of time” as one of the non-prosecution causes for the first time after the Revolution.
But it mentioned that “Applying lapse of time regulations is merely for the crimes with deterrent punishments.”
Opinion of Department General of Legal Affairs: “All crimes the type and amount of which have been determined by the legislator, not by the religious law, are deterrent punishments and as these are not determined by the religious law, are subject to title of Tazir but there are some cases in criminal laws that the judge can determine the type and amount of punishment. These are under the title of Tazir, not deterrent punishments.
So Tazir includes deterrent punishment but deterrent punishment does not include Tazir.
But the problem is the interpretation of general board of The Supreme Court from concept of Tazir that is due to inattention to the above rule and can be criticized.
According to this opinion, the criterion for distribution of Tazir punishment from deterrent punishment is “canonical prohibition” of the committed action.
Therefore, if an action is prohibited canonically, its punishment is from type of Tazir and in case it is not religiously prohibited, the punishment is from type of deterrent punishment.
This opinion can be criticized: 1) Canonical prohibition is a fact different from criminality.
It should be included in texts of law so that it can be applied. 2) According to Judicial Decree of Imam Khomeini, breach of each of the laws in the Islamic Republic of Iran system is religiously prohibited. 3) If we accept that the canonical record of an affair can be the criterion for recognition of Tazir, so its punishment record can be found in the conduct of the ancestors not the mere record of the canonical prohibition of the action.
As a result, the opinion of The General Board of the Supreme Court does not accord with the legal fundamentals and therefore the criterion for distinction of the two is the same that was mentioned before.