Editor in Chief’s Note

Some of Ever-Lasting Orders from Ayatollah Bahjat:
- The single way for salvation in this and the next world, is slavery to God, the Almighty; and slavery is renouncing sin.
- One who knows if he remembers God, the God is his companion, needs no sermon, he knows what to do and what not to do; he knows he should do what he knows and should use caution in what he does not know.
- There is no better praise than «praise in practice», there is no better praise in practice than renouncing sin.
- You should say your five prayers on time and you should pay attention to God completely; in this way you will enjoy prosperity.

A Selection of Latest Legal Approvals

- Law for the manner of deciding claims that there are issues including defamation and libel or unreal matters against one in the IRIB programs. (Gazette No. 18752 dated July 21, 2009)
- Recommendations about how to strike against satellite channels opposed to the government in the circular letter of the Chief of the Judiciary (Gazette No. 18740 dated July 5, 2009)
- Law of Cyber Crimes (Gazette No. 18742 dated July 8, 2009)
- A Final holding regarding recognition of ownership by the court is considered as an official deed (Verdict No. 6 of General Board of Administrative Justice Court) (Gazette No. 18684 dated Apr. 28, 2009)
- Amendment Law for Law of Judicial Supporting from the Government Employees and Armed Forces Personnel (Gazette No. 18705 dated May 23, 2009)
- Bylaw for Supreme Council of Supervision and Inspection of the Judiciary (Gazette No. 18713 dated June 2, 2009)
- In case there is a judicial order for dispossession or eradication of constructions in real properties taken possession by the governmental organizations, the mentioned organization can pay the price of the properties upon request of an order for stop of judgment execution within 6 months. (Approval of the Legislative) (Gazette No. 18721 dated June 13, 2009)
- Amending the Criminal Law 1996 regarding making, carrying and keeping the fake samples of Iranian and foreign cultural and historical works are considered as an offense. (Approval of the Legislative) (Gazette No. 18763 dated Aug. 3, 2009)
- Six-Month Stay of the Execution of Bylaw for Legal Bill of Bar Association Independence June 17, 2009 (Gazette No. 18753 dated July 22, 2009)
- The decedent’s wife inherits the price of both land building.(Approval of the Legislative) (Gazette No. 18651 dated Mar. 11, 2009)
- Amendment of Executive Bylaw of Clause 1 of Article 131 of Law for 4th Plan of Economic, Social and Cultural Development of the Islamic Republic of Iran regarding quality of change of documents and papers of judicial cases, keeping of which is necessary and conditions for cases obliteration. (Gazette No. 18766 dated Aug. 6, 2009)


Disciplinary Warnings

in the Judgments of Judges’
Disciplinary Courts & Public Prosecutor’s Office
- Quashing the decision of dispute settlement council without rendering a judgment by the court judge (If the court quashes the decision of dispute settlement council, it should render a judgment instead.)
- Using the word of «Without Effect» instead of «Null» is regarded as a judicial opinion.
- Repeated Summoning of the accused and not beginning of investigations by the interrogator
- Severe writ despite of insufficiency of reasons of accusations
- Indefinite release of the accused despite of judicial committing for attachment of the introduced surety
- Informing the appellant by his (her) appearance in the branch office is enough for service of process.


One Vote, One Experience

Rejection of complaint of the Head of Justice Administration and public prosecutor of city of …by Court of Appeals
Summary: This judgment is set forth because despite of the fact that in the mentioned case, one party to the suit are the high judicial authorities of an area and the defendant is a lay one, the court of appeals investigated the objection of the accused who had been convicted in the initial stage, and announced his objection justified and acquitted him from the accusation filed by the Head of Justice Administration and public prosecutor.



Around the Table

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

412- How much is procedural law binding in the quasi judicial commissions such as Commission of Article 100 of Municipality?

Opinion of nearly the unanimity of the members in the session dated Oct. 30, 2008
First: No judicial or non-judicial authority is entitled to ignore laws predicting rights. Second: According to Article 1 of Civil Procedure Code: «This law is a collection of principles and regulations that applies regarding investigation of the probate matters and all civil and commercial claims in the public and revolutionary courts, courts of appeals, supreme courts and other authorities which are to observe that by virtue of law.»
Accordingly, it should be said that since for investigation of the cases within competence of quasi-judicial commissions such as Commission of Article 100 of Municipality, some special procedural rules have been predicted, so first of all these regulations should be considered and obeyed, and in case of non-prediction, Civil Procedure Code can be used as the basic law. And if investigation of the whole case or part of it in a quasi-judicial commission has been referred to Civil Procedure Code or Criminal Procedure Code, its observance is inevitable.

413- Is the municipality allowed to refuse executing the verdicts of Article 100 Commission which has been finalized and compromise with the transgressor in another way?

Opinion of nearly the unanimity of the members in the session dated Dec. 25, 2008
The municipality is bound to execute laws and regulations related to municipalities law, hence before the subject of infringement is set forth in the Commission of Article 100, the case can be negotiated due to regulations and the offender’s request and in case of necessity, another measure could be taken, but after the case is set forth in the Commission, the subject will certainly be investigated and the decision be rendered by finalizing which the municipality is bound to execute it since the decision helps the stabilization of the municipality regulations, specially in the section of urban development, technical and health principles and does not have merely private aspects, to allow the municipality as the complainant compromise with the offender and as a result the mentioned decision is frustrated. In the meantime, such a compromise contradicts with philosophy of establishing the mentioned commission.

414- Is the purpose of beneficiary in Notes 1, 2 and 3 of Article 100 of Municipality Law the same owner or his legal representative?

Opinion of nearly the unanimity of the members in the session Dec. 25, 2008
The «beneficiary» in the mentioned notes in Article 100 of Municipality Law is not merely the owner of the property because the representative title has been used as well as the owner. The wording also includes the beneficial owner, which is of the obvious instances of the «beneficiary».

Selection of World Legal News

• Cancer patient commits physician-assisted suicide under Washington law
• Iraq PM creates prison abuse investigatory committee
• PA lawyer to plead guilty in $ 2.5 M corruption case
• 2008 Annual Report on Internet Crime from the FBI and National White Collar Crime Center (NW3C)



Foreign Part

Judicial Education Status in India
Educational Status of Employees in the judicial system of India: This is a part of an English book under title of «First National Judicial Pay Commission». The collection has 26 chapters, in which, all issues related to status of macrosystem of management of human resources of judicial system in India have been described in detail. In other words, a set of microsystems related to the management of human resources has been fully inserted in this collection. These systems in India include: judicial administrative structure/ judicial occupations classification/ employment and selection in the judicial system/ promotion, appointment and evaluation of function in the judicial system/ education system/ system of payment, welfare and retirement. On the basis of the above-mentioned, this article is allocated to chapter 13 of the book of «Status of Education and Training, Organizations, Needs and Judicial Strategies». This source has been searched through Internet and the book was published by Mr. Jaganata Sheti, P.K. Bahri, Judge and Mr. A.B. Mourgad, Judge.
The Important Issues and Applications of The Article: If we would like to summarize the content of this collection, supervising its applications, it can be said that this collection can reply the following questions: A- How have the duties of judges in India been defined and what are the abilities needed for performance of these duties? How are the duties and the required abilities related? B- How have the educational needs of the judges and the judicial trainees been defined? C- What are the educational programs of the trainees and judges in India concerning goals, resources and minimum requirements? D- How the educational methods and examination and evaluation of the judicial trainees in India are implemented? E- What system do the organization and supporting service of education enjoy? F- How is the relation of professional educational institution of judges with other academies and universities? G- What are the qualifications of the professors and instructors of judicial employees? How are they employed? And how are they promoted? H- How the content and course materials of educational courses for employees of the judicial system are prepared? And what are their features? I – What are the topical titles and educational contents of the courses of the employees of the judicial system in India?


The
Month’s Guest

Lecture of Mr. Azmayesh, Ph.D.

The subject of Mr. Azmayesh’s lecture in this session is impunity: The factors that cause someone not to be punished despite of the fact that he/she may have committed a crime and the law determines a punishment for the crime. Its origin may be national or international. If it is national: 1- The legislator may predict immunity such as immunity of the Islamic Consultative Assembly members regarding their statements in performance of their duties, 2. General amnesty may be announced, 3. Special amnesty may be announced. If it is international: ICC has been established to prevent impunity, when a crime such as 1. genocide, 2. war crimes, 3. crimes against humanity and 4. aggression are occurred and the offender cannot be punished in his/her own country due to his position or he/she is tried and consequently is acquitted or he/she is convicted to a lenient punishment, ICC has jurisdiction to investigate it.



Article

Legal Study of the Request of Public Prosecutor of International Criminal Court for Rendering Arrest Warrant of the Sudan President
Jural Studies & Legal Deputy Office

On July 14, 2008, public prosecutor of ICC requested rendering warrant of arrest of the Sudan president from 1st initial branch of the Court after study of Sudan Darfur status. This request was made on the basis of referral of status from Security Council of the UN and investigations made by the public prosecutor.
Request for arrest warrant of the Sudan president has caused different viewpoints of the jurists of different countries. Some believe a dominance of political look in the case and others think this process is resulted from an attention of the international society on following up the trial of war criminals and development of jurisdiction of ICC. Although Islamic Republic of Iran has not approved the Court charter yet, but has signed it.
On the other hand, serious and thoughtful appearance in the international fields and to express opinion concerning international subjects cause such an important subject to be considered. So the jural and legal deputy of the strategic research center decided to hold a scientific meeting with different professors and knowledgeable regarding the subject and the current article is the summary of the meeting which finally presents some strategies in this relation.



Article

Comparative Study of Accessoryship to a Crime in Iran, France & Lebanon Laws
Alireza Saeid
Abstract
Accessoryship is assistance with a principal in any of the predicted forms in the law, without any direct intervention in the physical element of that crime, and this cooperation should be before or simultaneous with the incidence of the main crime.
Proof of the triple elements of crime is necessary in accessoryship and the physical element of accessory should be commission (not omission). In this article, the author has tried to comparatively study the elements and instances of accessoryship as well as its punishment in Iran, France and Lebanon laws in summary, and at the end the perpetrator of mental element of a crime its difference with aids and abetting have been dealt with.

Disclosure & Theft of A Trade Mark

(Legal Effects of Using one Mark Before Its Registration)
Shirzad Eslami, attorney at law
1) In the past two centuries, implementing the theory of free trade (without borders) and improvement of communicational technologies has caused a fast exchange of information and simple turnover of goods. Commercial competition became more complicated and difficult, and commercial fraudulent competitions were developed in different manners too.
Accordingly for many centuries the businessmen use trade marks and names for introducing their commercial personality or distinguish their goods and services from other competitors and nowadays it is the most important subject in competition and marketing area.
On the other hand, due to the fact that legal support of trade marks and names is directly related with economic development and growth of creativity, in all the countries, some regulations have been passed in this regard on the basis of national law systems.
In Iran, the first law in relation with registration of trade marks was enacted in 1925 after which another law was replaced in 1931. Internal and international evolutions of the last century in trade area in one hand and a movement for support of intellectual property and obligations resulted from adjunction to world conventions in another hand, leaded the Iranian legislator to enact a new law under the title of «Design Rights and Trade Marks and Patent Law» on Oct. 29, 2007 which will be executed experimentally for 5 years.
This article is trying to discuss one of the issues which is the subject at issue of the jurists of the country by enactment of the new law.
2) According to the custom of business, usually the people use their trade marks before their registration and disclose them. According to Articles 20 and 22 of Trade Marks and Patent Law 1931, if a person delayed in registration of a mark and another registered the same mark in his/her name, the main owner of the mark could object the registration in a maximum term of three years and ask the court to annul the registered mark and apply for its registration in his/her name. In some cases it could be possible to file a claim by proving conditions even after three years.
According to Articles 30 and 31 of the new Law of Trade Marks Registration approved on Oct. 29, 2007:
«Trade mark is any visible sign that can distinguish goods or services of natural or legal entities from each other and the right of exclusive use of a mark is allocated to the one that registers that mark as per regulations of this law.»
Unfortunately in the recent enacted law, no ruling has been made positively or negatively, concerning the acquired right of one who has used a mark before registration and another one registers the same.
According to the silence of the new law, some questions are the subject of this article.
In its several chapters, the article is trying to answer these questions and the subject to be clarified despite of the new law’s silence, resorting to dominant principles of patent rights and regulations of Paris treaty.


Suggestion


Mahdi Kamali – Assistant Prosecutor of Public Prosecutor’s Office of District 6 in Tehran
Dear Head of Justice Administration of Tehran Province
The cases by correct observing and execution of which many crimes are prevented and confront professional criminals and abusers, briefly include the followings:
1) It is suggested that banks are required that before opening any type of accounts, the authenticity of specifications and documents of the applicant are proved. (Conformity of the photo of the applicant with his/her particulars seen to be necessary.)
2) To register companies, the authenticity of identity certificate and documents of the founder or the board of directors and managing director should initially be inquired and verified.
3) A solution should be designed for registration of transfers of the credit SIM cards.
4) Informing the citizens through I.R.I.B., schools and public centers
5) Establishment of a workgroup or (judicial-police) board in the Justice Administration of Tehran
6) To hold specialized gatherings in the field of some certain crimes prevention.


Nullity of
Partition

Hossein
Ghorbanian
When the properties of a deceased are divided, one of the heirs may claim that 1) a mistake is made in the partition or 2) a defect is occurred or 3) a third party may be found who is applicant for nullity of the partition of the estate.
Procedural Discussion
Before 2000, according to Article 33, if there was any request for nullity of partition, the applicant might refer to a court in which the partition had been ordered. Also in another Article of the same law it was mentioned that for nullity of partition, a measure could be taken through ordinary appeal, extraordinary appeal (if the limitation was expired) or on the objection of a third party. These two articles contradicted each other, but after 2000, Article 33 was omitted and now merely through ordinary appeal, extraordinary appeal or objection of a third party, the reverse of the decision can be applied.