Hassan Mohseni
Abstract
The notion of jurisdiction depends to the nature of judicial acts; because two powers called Executive and Judicial in each government are administrator body in regard of Legislative power. In Iranian legal system, in the other word, the situation of Adjudication institutes is less discussed and their ...
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The notion of jurisdiction depends to the nature of judicial acts; because two powers called Executive and Judicial in each government are administrator body in regard of Legislative power. In Iranian legal system, in the other word, the situation of Adjudication institutes is less discussed and their classifications have not been studied exactly as should be. In this legal system we can see day by day the increase of institutions’ numbers such as Commissions, Councils and Boards between Adjudication institutes but it is not clearly shown that if Legislator seeks to create a Court or Tribunal by they or its intention merely is creation of some institutions for administration of law in strict sense. Many Substantive and Formal criteria have been suggested for distinguishing judicial acts which foundation of legal system to each one can disorder its supposed order. In this research, after studding and evaluating these criteria, we have endeavored to introduce Adjudication institutes orderly. The result of this article can be summarized in these phrases: “a jurisdiction is a third or an impartial institution that decides about a juridical conflict decisively and certainly by applying substantive and formal rules”.
Mehdi Shahabi; Maryam Jalali
Abstract
The basis, the source and the goal of a legal rule may be considered as the three main bodies of each legal system. Undoubtedly, for the formation of the concept of a legal system, a sort of relation and cohesion between the said bodies deems necessary. The source of a legal rule, or instrument of the ...
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The basis, the source and the goal of a legal rule may be considered as the three main bodies of each legal system. Undoubtedly, for the formation of the concept of a legal system, a sort of relation and cohesion between the said bodies deems necessary. The source of a legal rule, or instrument of the expression of a legal rule, and also the goal of the rules and the legal institutions, in any legal system, are influenced by the basis and the source of binding force of the rules in the legal system, in question. In other words, any answer as to the source of binding character of a legal rule, either a metaphysical or realistic one, would affect the type of sources of the legal rule and even their functions, whether subjective role of the law or its objective one. The type of interaction and the relation between sources and the horizontal or hierarchical link between them, are both in religious and non-religious legal systems dependent on the nature and concept of basis as well as binding source of legal rules.
Mostafa Elsan
Abdollah Khodabakhshi
Abstract
Accidents resulting from driving and motor vehicle’s incumbency are considered as the most prevalent accidents during the last years. In Iran, its statistics is more than standard limit, too. Recently, a law was enacted in Iran and it caused the civil liability system and the remedy of losing party ...
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Accidents resulting from driving and motor vehicle’s incumbency are considered as the most prevalent accidents during the last years. In Iran, its statistics is more than standard limit, too. Recently, a law was enacted in Iran and it caused the civil liability system and the remedy of losing party in such accidents are developed. This also affects on compensation insurance system. Herein, we want to answer this question whether these developments were transformed the liability basis and sent it away from the jurisprudence guarantee topics, or no change was made in these fundamentals. Consequently, the theory of “unlimited compensation of the losing party”, subject of article 26 of Accidents Vetting Act, is not consistent with Iranian legal system. In fact, with due regard to the theory of “Religious Jurisprudence Relation”, we can achieve a reasonable interpretation.
Hamed Rahmaniyan; Mohammad jafar Habibzadeh
Abstract
The phrase “Hodood that are not mentioned in this code” in Article 220 of Islamic Penal Code of 2013 and “Shar’i definite Tazir” in Article 115 of this code are ambiguous from Figh and legal viewpoint, then we have to resort to interpretation for recognizing their instances, ...
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The phrase “Hodood that are not mentioned in this code” in Article 220 of Islamic Penal Code of 2013 and “Shar’i definite Tazir” in Article 115 of this code are ambiguous from Figh and legal viewpoint, then we have to resort to interpretation for recognizing their instances, In this regard, three interpretations are possible, First, restricting “Hodood” to six famous types and allocating definite Ta’zir to punishments with definitive cause, kind and amount, Second, allocating Hodood to punishments with definite kind and amount and cause and allocating definite Ta’zir to punishments with definite cause and indefinite kind and amount, Third, allocating Hodood to punishments with definite cause and kind and amount of certain definite punishment and allocating definite Ta’zir to certain indefinite cause and kind and amount, In this article we consider different views and finally choose third interpretation as a non-instrumentalist one that has the highest moral acceptance, This accepted interpretation is consistent with rule of law and other certain legal principles,
Farokhzad Jahani
Abstract
The passing of oil and gas natural resources from marine delimitation lines and subscription of these resources among two or many countries and/or their establishments in zones without marine delimitation may cause to emerge the international disputes and peace and stability threat. Convention ...
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The passing of oil and gas natural resources from marine delimitation lines and subscription of these resources among two or many countries and/or their establishments in zones without marine delimitation may cause to emerge the international disputes and peace and stability threat. Convention Law of the sea, 1982, asks the governments to temporarily apply the practical measures, if delimitation is not agreed with. Further, according to the principle of necessity of peaceful international disputes settlement, the governments should settle the aforesaid disputes, on the basis of the political or legal rituals. Though, the judicial precedent of the international court of justice and international arbitrations shall deal with the settlements of such disputes as to the delimitation, regarding the international judicial precedent, we conclude that the appropriate principle in operation of these resources is to cooperate among governments & avoidance of the unilateral actions.
Ali Akbar Gorji Aznadreyani; Morteza Rezaei
Abstract
In the legal- political system of Iran, resolving dispute and regulation of the powers relations, especially on thirty five years of the Islamic Republic history that led into the revision and modification of the Constitution, is special and unique issue that derived from the power distribution type ...
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In the legal- political system of Iran, resolving dispute and regulation of the powers relations, especially on thirty five years of the Islamic Republic history that led into the revision and modification of the Constitution, is special and unique issue that derived from the power distribution type in governance system of this country. Disputes and conflict jurisdictions problems sometimes results in unprecedented disputations that indicates different explanations from law. In recent years, this problem, despite some apparently regards again brought back into the political arena, thus it seriously required to be redesigned and fixed. The Leader created "Supreme institution of resolving dispute and regulation of the threefold powers relation" in the political arena of country based on paragraph 7 of Article 110 of the Constitution, in culmination of disputes between the threefold powers. Research in this newly established institution and review of paragraph 7 of article 110 of the Constitution as basic system of the resolving dispute and regulation of the powers relations in Iran make the main subject in this essay.
Ali Ghasemi; Victor Barin Chaharbakhsh
Abstract
A cyber attack represents a novel weapon that has the potential to alter the way state and non-state actors conduct modern war. The unique nature of the threat and the ability for cyberwar practitioners to inflict injury, death, and physical destruction via cyberspace strains traditional definitions ...
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A cyber attack represents a novel weapon that has the potential to alter the way state and non-state actors conduct modern war. The unique nature of the threat and the ability for cyberwar practitioners to inflict injury, death, and physical destruction via cyberspace strains traditional definitions of the use of force.
In this article, cyber attacks conducted by non-state actors will be discussed only for the purpose of determining when they can be attributed to a state.
The main question is whether a cyber attack is an action below the threshold of the use of force, or a use of force, or a use of force amounting to an armed attack. This article has concluded that cyber force, can be qualified as a use of “armed” force in the sense of Article 2 para.4. On the other hand, only large scale cyber attacks on critical infrastructures that result in significant physical damage or human losses comparable to those of an armed attack with conventional weapons would entitle the victim state to invoke self-defense under Article 51of the UN charter. Self-defense would also be possible against a cyber attack that does not reach the threshold of an armed attack but which prepares an imminent armed attack with conventional weapons.
Seyyed Ali Kazemi
Abdollah Khodabakhshi
Abstract
When contract entering into criminal law, both rules are skeptical. To say that they are not linked and unable to live together. criminal lawyer objected that civil analysis should not be enter the field criminal and civil lawyer believes that the contract is the basic relation, and when not supporting ...
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When contract entering into criminal law, both rules are skeptical. To say that they are not linked and unable to live together. criminal lawyer objected that civil analysis should not be enter the field criminal and civil lawyer believes that the contract is the basic relation, and when not supporting the right and obligation, criminal law also will not interfere. To eliminate this dispute, it will be accepted the arbitrator and accept his award. This arbitrator is the “principle of criminal law independence” and his attraction and repulsion. the principle that on the one hand, prohibits excessive development of criminal law and on the other hand, to invoke the presumption of innocence irregulary. Perhaps, it will be say that the rules of contract will not follow in criminal law, even as the principle and only should be interpreted with regard to the objectives, features and special foundations of criminal law. This paper shows some results about relation between contract and criminal law.
Mehrdad Rayejian Asli
Gholamhossein Oftadeh
Volume 66, Issue 39 , March 2002, , Pages 153-180
Public Law
ALI DEHGHAN BANADAKI; alimohammad fallahzadeh
Abstract
Universities and higher education institutions are considered as one of the most important centers of science, knowledge and theoretical support for social, legal, political, economic, etc. actions. The quality of the administration and the regulations governing them is one of the most important issues. ...
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Universities and higher education institutions are considered as one of the most important centers of science, knowledge and theoretical support for social, legal, political, economic, etc. actions. The quality of the administration and the regulations governing them is one of the most important issues. For this reason, the legislator has recognized the quality of regulation in universities through the many ups and downs based on the constitution by approving Article (1) of the Law on Permanent Decrees of the Development Programs of the country. But The scope of competence of the Boards of Trustees of universities and research centers as one of the key pillars in setting the rules governing universities has been accompanied by ambiguities and shortcomings.In the meantime, the judicial interpretation tool and the way of dealing with administrative proceedings (administrative justice court) with the performance of the university trustees' boards are the way to evaluate, resolve ambiguities and legal gaps.This article answer the question, "What are the legal requirements governing the board of trustees of universities and higher education institutions in the framework of the decisions of the general board of the Administrative Court of Justice?"
This research has reached this conclusion by using the descriptive-analytical method, documenting the opinions of the general assembly of the Administrative Court of Justice; while maintaining the independence of the university and higher education centers in order to prevent the limited interpretation of the authority of the boards of trustees, the general rules and framework governing the approvals of the board of trustees should be established in a precise and transparent manner. The requirements governing the approvals of the board of trustees include compliance with the "principles of the constitution and higher documents", "special laws", "incompetence of delegation", "prohibition of sale of immovable property" and "laws of land use change".
Private Law
Abdolvahid Zahedi; samira sargezi
Abstract
Abstract In the current legal system, despite the fact that for many years has been found the importance of procedure of proceedings to be in the strict sense of the law; But the legislator has not yet accepted that these two types of law have the same significance. On the basis of this refusal, Violations ...
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Abstract In the current legal system, despite the fact that for many years has been found the importance of procedure of proceedings to be in the strict sense of the law; But the legislator has not yet accepted that these two types of law have the same significance. On the basis of this refusal, Violations of the substantive rights always invalidate the verdict of the court, but violations of the procedural rights invalidate the verdict of the court when they are of such importance as to invalidate the vote. But there is a question, what are these high-ranking ceremonies? can be used Various criteria to identify these principles. However, the criterion of effective criminal procedure is more consistent with the current law and the former laws, while the criterion of the basic principles of the proceedings is more in line with the objectives of the criminal procedure.Key words: Principles of procedure, procedural procedures, Principles with high degree of importance, effective criminal procedure
Criminal Law
afsaneh zamani jabbari; mahmood saber; mohammad farajiha
Abstract
The application of preventive measures against activities involving the occurrence of criminal and harmful results in the public interest, in accordance with Article 114 of the Criminal procedure code, faces fundamental challenges in three categories: legislative, judicial, and executive. The purpose ...
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The application of preventive measures against activities involving the occurrence of criminal and harmful results in the public interest, in accordance with Article 114 of the Criminal procedure code, faces fundamental challenges in three categories: legislative, judicial, and executive. The purpose of this study is to provide solutions and express the necessities for overcoming these challenges. The approach of this research is qualitative-exploratory. The article concludes that the admission of an immediate trial and an interim injunction in criminal matters, the provision of an approving Supervision by the prosecutor, the inclusion of precautionary measures, and the need for periodic review can compensate for the Deficienciesof a fair trial. Determining criteria instead of defining concepts, risk assessment based on prerequisites, identifying the principle of good faith, adhering to the criteria of fitness and necessity, balancing preventive measures, and economic development are among the solutions and necessities that are provided to address other challenges. Also, in order to enrich the results, in some cases, the experience of other criminal systems has been used.
human rights
Mahnaz Rashidi
Abstract
Nowadays, right to water, increasingly has recognized in international documents as one of the human rights that is inextricably linked to other instances of human rights, such as the right to life, the right to health, and the right to adequate standard of the living. Recognizing this right in human ...
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Nowadays, right to water, increasingly has recognized in international documents as one of the human rights that is inextricably linked to other instances of human rights, such as the right to life, the right to health, and the right to adequate standard of the living. Recognizing this right in human rights discourse, on the one hand, obliges States not to interfere in the free access of human beings to water, and on the other hand, it rests the responsibility of providing the arrangements of water supply and access to this vital substance for them. Although the main commitment of fulfilling the obligations of the right to water is the executive bodies of a country, but the legislative and judicial institutions also have responsibilities for the full realization of this right. The question that this study has been written in order to answer it, is: what role does the judiciary of the Islamic Republic of Iran play in ensuring the right of Iranian citizens to water? The result of descriptive-analytical studies in this paper, which is obtained using library studies and review of international documents and domestic laws, is that judiciary with the main task of establishing rights and justice and reviving public rights, can guarantee the right to water in three general areas: prevention, monitoring and litigation. However, the lack of explicit recognition of the right to water in domestic law is the most important shortcoming, which has largely limited the scope of action of this body to guarantee of right to water
Criminal Law
Ali Rahmati; Hossein M. M. Sadeghi
Abstract
According to reports from international institutions and organizations, including Human Rights Watch, High Commissioner for Human Rights and Amnesty International, Myanmar Muslims, and in particular the ethnic and religious minority of Rohingya Muslims, have been pursuing discriminatory policies and ...
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According to reports from international institutions and organizations, including Human Rights Watch, High Commissioner for Human Rights and Amnesty International, Myanmar Muslims, and in particular the ethnic and religious minority of Rohingya Muslims, have been pursuing discriminatory policies and the criminal acts of the Myanmar government and its Buddhist residents since decades. Meanwhile, the recent human tragedy and the terrible crimes committed against the Rohingya Muslims, which have been accompanied by the government of Myanmar and the military regime of the country, have more and more been faced with the response of the international community. Given the correspondence of these crimes with actus reus and mens rea of the crime of genocide and crimes against humanity, prosecution of those perpetrators at both national and international levels is debatable. At the national level, the Myanmar Courts, based on two principles of territorial jurisdiction and nationality jurisdiction and third countries courts based on the universality principle (Subject to the identification of such a principle in their internal laws) may interfere. More importantly, the mechanisms available at the international level include the referral of the status to the International Criminal Court or the formation of the Particular International Criminal Court by the United Nations Security Council. In addition, there is also an intermediary mechanism, which is a hybrid or internationalized court that can be formed on the basis of an agreement between the Government of Myanmar and the Security Council. In this paper, the pros and cons of each of these courts is reviewed in order to handling of recent crimes committed in Myanmar.
Mohammad Yekrangi; Mehdi Iran Manesh
Farid Zarghami
Private Law
Eisa Rajabi; shahrzad ounegh
Abstract
The document of “General Conditions of Contract” is one of the provisions that govern the governmental contracting contracts and cannot be infringed. Among the issues to be considered in this document are the provisions of Article 53, with the title of "Dispute Resolution”. This article, ...
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The document of “General Conditions of Contract” is one of the provisions that govern the governmental contracting contracts and cannot be infringed. Among the issues to be considered in this document are the provisions of Article 53, with the title of "Dispute Resolution”. This article, because of the use of the words "he can" and "they can" in paragraphs (a) and (c), and with the prediction of quasi -arbitration and arbitration in the form of a contract term, and also as a consequence of the "Optional or compulsory will” of the parties to lawsuit to the non-judicial authorities, has led to various interpretations of the designation of the competent authority to deal with disputes arising out of this kind of contracts. The absence of a uniform judicial procedure in these cases has caused to wasting time and financial costs on litigants (employer and contractor) and the judiciary. Therefore, in the present article, we will try to rely on the method of reasoning and principles and legal rules governing the subject in one of the preliminary Court votes, while examining the structure and analysis of the scientific approach of the judge's thought, including the legal concept and nature of this kind of contracts and method of Non-Judicial Dispute Settlements, as well as the Status of Non-Judicial Dispute Resolution Authorities in the Contractual Condition, to determine the extent to which litigants have the possibility in choice of the jurisdictional or non-judicial proceeding, and as far as possible provide a functional and unified approach to deal with such disputes
International Law
Saeed haghani
Abstract
Abstract:Personal Status registration Code endows ‘Provincial Security Council’ to decide on the Iranian nationality of those whose nationality is under question. The general assembly of the Iranian Supreme Court, in its binding judgments no 658 and 748, made an end to uncertainties regarding ...
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Abstract:Personal Status registration Code endows ‘Provincial Security Council’ to decide on the Iranian nationality of those whose nationality is under question. The general assembly of the Iranian Supreme Court, in its binding judgments no 658 and 748, made an end to uncertainties regarding judicial review of Provincial Security Councils’ decisions on Iranian nationality. The General assembly finds that the applicant might subject such administrative decisions to judicial review. Nonetheless, there is room to enquire about the competent judicial body to proceed with such judicial review. In the final analysis, I believe that a distinction should be made between cases of requests for Iranian ID and cases in which an already existing Iranian ID is subjected to the annulment process (i.e. suspected holders of Iranian nationality documents). While the Court of Administrative Justice would more appropriately handle the first category, civil courts of the first instance are the competent court to deal with the second category
mehdi hagighatjoo
Abstract
Methods and strategies of Companies extension in competition law like joint venture, acquisition and merger are various and numerous. Companies' merger is one of the most important strategies of increasing production capacity and expanding companies in the international commercial world. Increasing production ...
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Methods and strategies of Companies extension in competition law like joint venture, acquisition and merger are various and numerous. Companies' merger is one of the most important strategies of increasing production capacity and expanding companies in the international commercial world. Increasing production capacity leads to expansion of market portion. Therefore the purpose of competition law can be abstracted in preserving market balance and controlling these policies for preventing creation unreasonable trusts and monopolies at market. So in the majority of pioneer countries in international commercial world there are different rules which have been approved for controlling of competitive methods and preserving market order and there are special courts to take care of performing these policies. For example, in the United States, Federal Trade Commission is supervising competition performance in market and on the basis of European community regulations, Trade Commission has the same duty. In England, courts should do this mission. In current Iranian legal system, Competition Council should supervise competition strategy to prevent anti-competitive performances.
Private Law
Mahdi Hasanzadeh
Abstract
According to codes of procedure (articles 348 and 371 Civil Procedure Code and article 477 Criminal Procedure Code) "Contrary to Islamic Jurisprudence" has been announced as the cause of quash of judgments. It is an important point and should be studied if this cause is applicable to all judgments or ...
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According to codes of procedure (articles 348 and 371 Civil Procedure Code and article 477 Criminal Procedure Code) "Contrary to Islamic Jurisprudence" has been announced as the cause of quash of judgments. It is an important point and should be studied if this cause is applicable to all judgments or just judgments which rendered by virtue of religious sources and injunctions and according to principal 167 Constitutional law and article 3 Civil Procedure Code. Applying this cause in the manner that causes quash of judgments which rendered according to laws, it bring about the violation of the laws and this result is not coordinated with constitution law and legal system and arises the shaking of laws and disorder of legal system. Then, for solving this fundamental problem, we are obliged to know this cause as dissuaded from cases which its applying causes the quash of judgments which rendered according to laws.
Public Law
mohammad ghsem tangestani
Abstract
The formal law education system in several universities in a significant number of countries has for more than three decades experienced the relatively rapid development of institutions called "Law Clinics". This institution is a special establishment in faculties of law with dual educational and service ...
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The formal law education system in several universities in a significant number of countries has for more than three decades experienced the relatively rapid development of institutions called "Law Clinics". This institution is a special establishment in faculties of law with dual educational and service / social functions. In our country, the above idea has been designed and implemented with different models from a decade ago in a number of governmental and non-governmental universities in the country. Considering the development of the mentioned institutions in recent years and the necessity of setting the necessary legal frameworks for preparing and approving the rules and regulations related to the establishment and operation of law clinics, the leading research with descriptive-analytical method, while examining the concept of the above idea, Its functions and benefits seek to answer the question of what are the legal and extra-legal challenges and requirements for establishing university law clinics in Iran? According to the findings of this study, the effective establishment of this institution in Iran will not be possible without solving the numerous financial, administrative and educational challenges. The special emphasis of this research is on the necessity of adopting necessary solutions and arrangements to provide sufficient financial resources required for the establishment and operation of law clinics, approval of relevant legal documents by competent authorities and design of an appropriate educational system for full and effective implementation of the above idea. Thus, the legal system and the higher education system of Iran have not yet provided the conditions and requirements for the establishment and then the establishment and development of these clinics; Of course, this can only be achieved through the mutual cooperation of government authorities and non-governmental organizations, as well as the community of lawyers. I
Private Law
Mohammad Sardoeinasab; Peyman Aghababaee Dehkordi
Abstract
Abstract:The subject of this paper is the analysis of the nature and validity of price adjustment clause by paying the difference at the time of payment of the last installment. The unpredictable changes in commodity prices in the market have led to, in sales in installment, sellers cannot set a part ...
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Abstract:The subject of this paper is the analysis of the nature and validity of price adjustment clause by paying the difference at the time of payment of the last installment. The unpredictable changes in commodity prices in the market have led to, in sales in installment, sellers cannot set a part of price allocated to installment, so they designed the above mechanism. This term concludes that, in the sale of installments, the last installment has been adjusted and the buyer is required to pay rest. In this paper, using a descriptive and analytical method and referring to the main sources, after analyzing the various forms of the above mechanism, it is recognized & this result has been achieved, If understanding of Gharar, and summarizes in assurance, this term will be correct. The judicial procedure also recognizes it's as valid. Keyword: installment sales, condition about performance of an act, corollary term suspended, adjustment, open price, Gharar.
