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Journal of Legal Research – Number 14

Journal of Legal Research

Number 14

Vol. VII No. 2

Autumn 2008 – Winter 2009

CONTENTS

Articles
The International Criminal Court and Issue of Arrest Warrant for Al Bashir
Seyed Ghasem Zamani (Ph.D.)
Homicide or Injury in Battle
Mansoor Rahmdel (Ph.D.)
Research & Development in Nanotechnology and Right to Health
Javad Shoja
Challenges of the Concept of “Combatant” in International Humanitarian Law in the Era of War on Terror
Aramesh Shahbazi
Merging Commercial Companies in the Iranian Laws
Saba Haqiqat
Sanction against Iranian Aviation: An Approach to the Chicago Convention
Azam Zare Chahoki
Special Issue: Challenges of Real Estate Transactions in Iranian Legal System
The Role of Official Documents in Real Estate Transactions
Hamid Abhari (Ph.D.)
An Introduction to Role of Notaries Public in Regulating Real Estate Transactions and its Legal Vacuums
Mohammad Kazem Habibzadeh
Deficiencies Caused by the Insertion of Regional rather than Actual Prices in Real Estates Documents
Hossein Ghorbaniyan
Advance Selling of Flats: Legal Nature and Working Procedures for their Official Registrations 
Firooz Ahmadi & Hengameh Ghazanfari
Proving the Claim of Ownership: A Legal Analysis
Abdollah Khodabakhshi (Ph.D.)
Critique: The Draft of Iranian Commercial Code
The Method of the Drafting the Commercial Code: A Critical Approach 
Seyed Elhamuddin Sharifi (Ph.D.)
The 2005 Cabinet Draft to Modify the Commercial Code: A Deliberative Approach 
Rabia Eskini (Ph.D.)
The First six Chapters of the Commercial Draft: A Critical Examination 
Seyed Elhamuddin Sharifi (Ph.D.)
Chapters 5-7 of the Commercial Draft: A Critical Examination
Alireza Alipanah
Independent Guarantees in the Provisions of the Commercial Draft: A Brief Analysis 
Morteza Shahbazi (Ph.D.)
Merging in the Commercial Draft: Critical Study 
Ahmad Beygi Habibabadi (Ph.D.)

Articles

The International Criminal Court

and Issue of Arrest Warrant for Al Bashir

Seyed Ghasem Zamani (Ph.D.)
Abstract: 
The International Criminal Court issued an arrest warrant for Sudanese President Omar Al Bashir on 4 March 2009. The warrant details charges of crimes against humanity and war crimes, committed during the conflict in Darfur. The application for an arrest warrant against Al Bashir was made by the ICC prosecutor on 14 July 2008. Sudanese authorities have a legal obligation to arrest anyone named in an ICC arrest warrant under the UN Security Council resolution 1593 (2005), which requires Sudan to cooperate with the International Criminal Court.
Keywords: International Criminal Court,  Arrest warrant, Omar Al Bashir, War Crimes, Crimes against humanity, Impunity

Homicide or Injury in Battle

Mansoor Rahmdel (Ph.D.)
Abstract:
Although the judge always tries to find the truth and detect the perpetrator of a crime, but unfortunately, it is impossible in all cases. Regarding these situations the legislator in fact not for finding the truth but for solving the problem provides some rules. The legislator’s action in these cases is only based on convenience not thanking the truth. As it may happen that the convicted and sentenced person has not done any part of the actus reus that has lead to a specified result. So, in these cases it could be said that the legislator has presumed the actus reus. It seems that section 615 of Islamic Penal Code is a kind of these rules. The present paper considers the different dimensions of the battle that leads to homicide or injury.
Keywords: Homicide, Injury, Battle, The known perpetrator, The unknown perpetrator

Research & Development

in Nanotechnology and Right to Health

 

Javad Shoja
Abstract:
Nanotechnology promise various applications in medicine, electronic, environment and etc. Nanotechnology is the science of control and manipulate of materials in nanoscale. Scientists believe that through nanotechnology utilization they can bring welfare to human being. These kinds of applications are able to realize right to health. This paper examines the aspect of right to health and effects of nanotechnology on the aspect of right to health as well. It will come to the conclusion that there are two fundamental challenges to nanotechnology, one relates to the dominant polices of international trade and intellectual property, and the other concern harmful effects of nanomaterials on environment and human health.
Keywords: Right to Health, Human Rights, Nanotechnology, Intellectual Property, Human Dignity

Challenges of the Concept of “Combatant” in International Humanitarian Law in the Era of War on Terror

Aramesh Shahbazi
Abstract:
The United States, is currently detaining several hundred of al-Qaeda and Taliban combatants from many countries in Guantanamo Bay, Cuba. These detainees were captured while engaged in hostilities against the U.S. and its allies during the post-September 11, 2001 international armed conflict centered primarily in Afghanistan. The conflict now involves an ongoing concerted international campaign in collective self-defense against a common stateless enemy dispersed throughout the world.
Domestic and international human rights organizations and other groups and states have criticized the U.S., arguing that al-Qaeda and Taliban detainees in Cuba should be granted Geneva Convention III prisoner of war status. They contend broadly that pursuant to the international laws of armed conflict, combatants captured during armed conflict must be treated equally and conferred prisoner of war status. However, no such blanket obligation exists in international law. There is no legal or moral equivalence in law of armed conflict between lawful combatants and unlawful combatants, or between lawful belligerency and unlawful. This article explains how law of armed conflict protects civilians through the enforcement of clear distinctions between lawful combatants, unlawful combatants, and protected noncombatants. It summarizes the conditions of lawful belligerency under customary and treaty-based law of armed conflict, and instructs why combatants who do not meet these conditions do not possess combatant’s privilege; that is, the immunity provided to members of the armed forces.
Keywords: International Law of Armed Conflict, Belligerency, Prisoners of War, Unlawful Combatants, Humanitarian Law, Human Rights

Merging Commercial Companies in the Iranian Laws

Saba Haqiqat
Abstract:
Merging commercial companies include several aspects of investment, strategy and management of legal entities. It aims to extend activities which result a long term profit of the company. Some believe merging companies and their consequent activities lead to large monopolistic industries which might not beneficial for the consumers. One may, however, argue that this is not always the case, as these activities often add to the wealth and welfare of both consumers and producers. Thus, to improve national economy, numerous countries including Iran need rules which not only make attractive work’s atmosphere but also support actors in this field.
Keywords: Mergers, Commercial Companies, Monopoly, Lawmaker

Sanction against Iranian Aviation:

An Approach to the Chicago Convention

Azam Zare Chahoki
Abstract:
Improvement of the safety in international transportation is achievable by the efforts of airlines in obtaining novel and safe aviation. The main objective of this paper is considering the consequences of 1995 United States sanction against the Islamic Republic of Iran airlines. In legal examination of the Regulations, we concluded that the U.S. sanctions is an obvious non Conformity to the letter and spirit of the Chicago Convention thus, we proofed that the ICAO as a technical UN agency needs and also expected to take the lead to bring international public pressure on the United States, as a Member State, to remove the sanctions.
Moreover, it is suggested that authorities of civil aviation organization, after legal & effective conduct in ICAO, to take the case to ICJ or ad hoc arbitral tribunal.
Keywords: Chicago Convention, International Civil Aviation Organization (ICAO), Sanction, Safety, Aviation Law

The Role of Official Documents

in Real Estate Transactions

Hamid Abhari (Ph.D.)
Abstract:
The role of official documents in real estate transaction is one of the most significant issues of the post 1931 Registration Act. One may identify two main opinions in this concern: Some see registration of the transaction in an official document as a fundamental element of a sell contract, without which a contract is to be considered as void. According to the second opinion the transaction is a valid one, yet it can not be proved unless it has been officially registered. After presenting different opinions in this subject, I will conclude that there can be no unified rule for all types of the real estates. That is to say, we must make a distinction between real estates which benefit from official registration records, and those which lack such a record. In some, official registration is a fundamental element for the validity of the transaction, and in some others, it does not play such a role. Taking this distinction and the theoretical foundation of registration provisions seriously would enable us to tackle one the existing challenge to the real estate transaction.
Keywords: Sell Contract, Real Estate, Official Document, Registration

An Introduction to Role of Notaries Public in Regulating Real Estate Transactions and its Legal Vacuums

Mohammad Kazem Habibzadeh
Abstract:
This article will demonstrate benefits and significance of the registration of real estate transactions in notaries public, and undeniable preferences of officially registered documents. It will also discuss reasons citizens use ordinary documents in their transactions, and legislature’s failure to achieve objectives of the sections 22, 46, 47 the Registration Act.
Keywords: Registration Act, Organization of Registration, Public Notary, Real Estate Transactions

Deficiencies Caused by the Insertion of Regional

rather than Actual Prices in Real Estates Documents

Hossein Ghorbaniyan
Abstract:
The demand for registering real estates’ transactions is mainly to avoid future legal problems and disputes. The current practice of registration offices is, however, to insert regional prices instead of real prices in the relevant documents. The legal problem arises where there is a dispute, as each party will aim to take advantage of the unreal inserted price. The current governmental directions have not created a unified procedure in this concern.
Keywords: Official Document, Real Prices, Intention Parties, Registration Fee

Advance Selling of Flats: Legal Nature and Working

Procedures for their Official Registrations

Firooz Ahmadi & Hengameh Ghazanfari
Abstract:
Advance purchase of flats has been a common method of transaction for many years. The legal deficiencies and the consequence risk of such transactions have not, however, been removed as yet. The ambiguous nature of such a contract and the legal difficulties in their official registration are two significant challenges. This article undertakes to offer different legal analysis of “the contract of the advance selling of flat”. It will reach the conclusion that this is, in fact, a selling contract, by which the owner transfers their ownership in two stages: partly immediate and the rest for the future.
Keywords: Advance Selling of Flats, Real Estate, Ownership

Proving the Claim of Ownership: A Legal Analysis

Abdollah Khodabakhshi (Ph.D.)
Abstract:
Iranian courts have no unified view on how to deal with the issue of hearing a claim to prove ownership. Many courts accept hearablity of such cases, thus they hear such claims and their relevant cases such as approval of the ordinary documents on the real estates transactions. Considerations of legal order, benefits of the acceptability of the claim and the like, however, require being more reluctant in this regard. The complexity of such cases calls for a more considerate solution, and thus neither of the unqualified acceptance or the total negation seems to be justified.
Keywords: Real Estate, Ordinary Documents, Court Hearing, Burden of Proof

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