سه شنبه , تیر ۷ ۱۴۰۱
faen
Breaking News

Journal of Legal Research – Number 49

Journal of
LEGAL RESEARCH

Number 49

Vol. 21 ● No. 1
Spring 2022

Managing Editor: Vahid Eshtiagh

Editor-in-Chief: Seyyed Ghasem Zamani

 

CONTENTS

The Legal Regime of the Caspian Sea, Past, Present and the Future: From the Position of State Succession to the Conclusion of the 2018 Aktau Convention  (Part One: State Succession)

Dr. Seyed Jamal Seifi

 An Evaluation of Iran’s Status on International Regulation of Money Laundering

Roohollah Kheirani Arani – Dr. Shahram Zarneshan – Dr. Mohammad Hadi Soleimanian

The Role of Language-Based Principles in The Dynamic Interpretation of International Legal Instruments (with emphasis on the term Task Force)

Dr. Seyed Mohammad Hossein Mirzadeh – Dr. Ali Mashhadi

Corruption as a crime against humanity and investigation the jurisdiction of the International Criminal Court to hear it

Isa Koohestani far -Dr. Heibatollah Najandimanesh – Dr. Masoud Raei

Legitimacy of The Establishment of A Court by The Forces of The Anti-ISIL Coalition to Prosecute The Arrested Members of “ISIL” in Syria Wit A Respect at Alternative Mechanisms in International Law

Sakr Saboh – Dr. Seyyed Ghasem Zamani – Dr. Seyyed Ali Razavi – Dr. Seyyd Mohammad Razavi

Indemnity Clause and Third Party Claims in Commercial Contracts

Dr. Mohsen Sadeghi – Sepideh Akbarian

The Value of Fame: A Survey on the Methods of Compensation for Commercial Exploitation of the Reputation of Other

Ali Nazari – Dr. Abbas Mirshekari

The Concept and Nature of Arbitration with Power of Peace

Elmira Didban – Dr. Seyed Amir Hesam Mousavi

Deviation from Territorial Jurisdiction and Impossibility to Void the Court’s Ruling Rules in the Estate Partition Lawsuit

Ehsan Bahramy

The Position of Form in Contracts with a Brief Analysis of the Developments of French Civil Law

Amir Zare – Sayyed Amin Pishnamaz

Unfair Term and Technological Model to Prevent it From Being Included in Commercial Contracts in French, English and Iran Legal System

Dr. Hossein Sadeghi – Dr. Aliakbar farahzadi – Mehdi Naser

The Penological Analysis of Taxation Crimes

Fereshteh Abdolrahimi – Dr. Seyed Mehdi Ahmadi Mousavi

Social Factors Affecting Industrial Drugs Addiction (Case Study: Zanjan)

Reza Ahadi – Dr. Shahram Mohammadi – Dr. Hasan Toghranegar

Being “Public, Private or Government” of the of Public Universities’ Real Estate in Jurisprudence of Adminstrative Court of Justice

Dr. Nasrin Tabatabai Hesari – Soroush Safizade

 

Articles

 

The Legal Regime of the Caspian Sea, Past, Present and the Future: From the Position of State Succession to the Conclusion of the 2018 Aktau Convention  (Part One: State Succession)

Dr. Seyed Jamal Seifi

Associate Professor, Department of International Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.

Email: sj-seifi@sbu.ac.ir

ABSTRACT:

With the creation of new coastal States in the Caspian shore, there was no territorial replacement that would affect Iran’s coastal access to the Caspian Sea. The new coastal States all succeeded to the former Soviet Union in the latter’s territory. The concept of being a Soviet successor means that a “replacement of one State by another in the sovereignty over the territory” of the Soviet Union has occurred. The international legal principle of “land dominates the sea” is the point of departure for determining the coastal State’s maritime rights. The existence of equal shipping rights in the Caspian, envisioned in the Treaties of 1921 and 1940, does not equate with the existence of a comprehensive legal regime for this Sea. The determination of a ten-mile fishing area along the coast of each State under the 1940 Treaty, was itself based on the principle of “the land dominates the sea”. It shows that the allocation of this area during the time of the Soviet Union was also based on the length of the coast of the littoral States. Signature of the Aktau Convention by the Government of Iran implies the lack of persuasive strength of the position of equal and common sovereignty as advanced by the maximalist view of some Iranian writers, but the participation itself is a realistic measure  corresponding to international law and international relations.

Keywords: Caspian Sea, Succession of States, Legal Regime, Land dominates the Sea, Aktau Convention.

 

An Evaluation of Iran’s Status on International Regulation of Money Laundering

Roohollah Kheirani Arani

Ph.D. Student in International Law, Faculty of Humanities, Islamic Azad University (Hamadan Branch), Hamadan, Iran, Corresponding Author.

Email: roohollahkheirani@gmail.com

&

Dr. Shahram Zarneshan

Associate Professor, Department of Public and International Law, Faculty of Law and Political Science, Allameh Tabataba’i University, Tehran, Iran.

Email: zarneshan@atu.ac.ir

&

Dr. Mohammad Hadi Soleimanian

Assistant Professor, Department of Law, Faculty of Humanities, Islamic Azad University(Hamadan Branch), Hamadan, Iran.

Email: hadi1335@yahoo.com

ABSTRACT:

In order to fight back the harmful effects of money laundering, international law has arranged different mechanisms like systems of identifying customers, classifying customers based on their risks, systems of monitoring customer operation flow to identify suspected items and … in important documents like Vienna, Merida, Palermo Conventions, the Convention for the Suppression of the Financing of Terrorism and the Financial Action Task Force (FATF) and issued some requirements and recommendation for preventing and fighting money laundering. Thus, it is necessary for all countries to modify their internal laws and regulation to be consistent to the international regulations.

Banking and law system of Iran has passed and modified some important regulation for fighting money laundering like formulating and issuing new directives and guidelines, passing new laws for fighting money laundering and suppression of the financing of terrorism and limited adoption of FATF which can be considered as good steps.  However, given the fact that Iran has not joined to some international conventions like Palermo, CFT and FATF, Iran has not been successful to match itself to the new international laws and regulations on fighting money laundering fully.

Keywords: Bylaws, Money Laundering, Instructions, Identification, Convention.

The Role of Language-Based Principles in The Dynamic Interpretation of International Legal Instruments (with emphasis on the term Task Force

Dr. Seyed Mohammad Hossein Mirzadeh

Ph.D. in International Law, Faculty of Humanities, Islamic Azad University (Qom Branch), Qom, Iran.
Email: interprete3@gmail.com

Dr. Ali Mashhadi

Associate Professor, Public and International Law, Faculty of Law, University of qom, Qom, Iran, Corresponding Author
Email: A.mashhadi@qom.ac.ir

ABSTRACT:

To understand and analyze International Law Language (ILL)[1] , one should consider many cognitive- linguistic factors which have to be determined in its own place. The common languages of IL include two official languages of International Court of Justice (ICJ), English and French, and the UN ones, Arabic, Spanish, English, Chinese, Russian and French, in which texts and instruments and made and concluded. According to the evidences, it is considered that IL lawyers and researchers of our country, like some rare cases, should be familiarized with “cognitive- linguistic” components to perceive “semantic- pragmatic” phases of IL languages specially English and French in the best way. In this paper, therefore, we are to analyze in detail some linguistic aspects of IL languages in a comparative method. Which is going to be important in this article is that all of the conclusions are mad by comparative model of analysis between most useful languages of International Law.

Keywords: International Law, Instruments, Linguistics, Interpretation, Derivation.

 

Corruption as a crime against humanity and investigation the jurisdiction of the International Criminal Court to hear it

Isa Koohestani far

Department of Law, Islamic Azad University (Najafabad Branch), Najafabad, Iran.
Email: Isa.koohestani@gmail.com

Dr. Heibatollah Najandimanesh

Department of Law, Islamic Azad University (Najafabad Branch), Najafabad, Iran.

Department of Public and International Law, Faculty of Law and Political Science, Allameh Tabataba’i University, Tehran, Iran, Corresponding Author.
Email: hnajandimanesh@gmail.com

Dr. Masoud Raei

Department of Law, Islamic Azad University (Najafabad Branch), Najafabad, Iran.
Email: masoudraei@yahoo.com

ABSTRACT:

Today, corruption is recognized as one of the most important obstacles to political and economic development. Despite many efforts to combat this phenomenon, so far no suitable and effective solution has been found to combat it.

Due to the Widespread prevalence of corruption among human societies and the spread of poverty, injustice, lack of rule of law and lack of good governance as definite effects and consequences of corruption on the one hand and the inefficiency of existing national and international mechanisms to combat it on the other hand, for prevention the impunity of corrupters whose effects and consequences of their behaviors are no less than those of war criminals, one of the most effective ways to combat corruption, Citing the Statute of the ICC and extending its jurisdiction over this crime.

The existence of many commonalities between corruption and crimes against humanity, as well as attention to some articles of the Statute, indicate that at the time of drafting it, Consciously used phrases that will cover any crime that may occur in the future and affect humanity conscience, but it is not on the list of crimes against humanity .

By this means would compensate a legal vacuum in the punishment of newfound

 Crimes such as corruption Which have been formed as a result of new social requirements and relations and have the same effects and consequences as the other crimes mentioned in the article 7 of the statute.

Keywords: Corruption, Crime Against Humanity, International Criminal Court, Jurisdiction.

 

Legitimacy of the Establishment of A Court by the Forces of the Anti-ISIL Coalition to Prosecute the Arrested Members of “ISIL” in Syria Wit a Respect at Alternative Mechanisms in International Law

Sakr Saboh

Ph.D. Student in International law, Razavi University, Mashhad, Iran, Corresponding Author.

Email: sabohsakr@gmail.com

Dr. Seyyed Ghasem Zamani

Professor, Department of Public and International law, Faculty of Law and Political Sicences, Allameh Tabataba’i University, Tehran, Iran.

Email: zamani@atu.ac.ir

Dr. Seyyed Ali Razavi

Ph.D. in Private Law, Razavi University, Mashhad, Iran.

Email: ali.razavi@razavi.ac.ir

Dr. Seyyd Mohammad Razavi

Assistant Professor, Department of law and Political Scinces, Faculty of Letters and Human Sciences, Birjand University, Birjand, Iran.

Email: razavi1213@birjand.ac.ir

ABSTRACT:

Today, years after the formation of ISIS and the spread of theier Anti-human approach and brutal killing a lot of defenseless people, disregarding humanitarian law and spreading their terrorist operations to the heart of Europe, The international community is increasingly looking for a way to prevent and counter the group’s actions and prosecute its leaders and members. One of the solutions pursued by the US-led anti-ISIL coalition is to establish an “international” tribunal to try ISIL detainees in Syria. An approach developed and expanded after World War II to prosecute individuals who violated international and humanitarian rules and regulations in an armed conflict. In the present article, which has been completed in an analytical-descriptive manner, an attempt has been made to assess the legitimacy and the degree of compliance of the establishment of such a reference with the rules and regulations of international law. Based on the findings of this study, it seems that the establishment of such a court is against the rules of international law and the UN Charter, and in addition to violating the sovereignty of Syria, it is also against the provisions of the statute of the International Criminal Court.

Keywords: Anti-ISIL Coalition, ISIL, Syria, Violation of Sovereignty, Security Council, International Criminal Court.

 

Indemnity Clause and Third Party Claims in Commercial Contracts

Dr. Mohsen Sadeghi

Associate Professor, Department of Private and Islamic Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran, Corresponding Author

Email: sadeghilaw@ut.ac.ir

Sepideh Akbarian

M.A. in Private Law, Faculty of Social Sciences, Imam Khomeini International University, Qazvin, Iran

Email: sepide.akbarian@gmail.com

ABSTRACT:

The Indemnity Clause and Third-party claims is a process which causes to transfer the risks and responsibilities of a contract to one of the contract parties. This clause concerns the responsibilities and damages and claims which most of the time may be created in the future. But it may not prevent the parties to make agreement regarding the risks which were existed at the time of concluding the contract to compensate such risks in this format. This entity has been explicitly accepted in some national systems and implicitly in many others. In this essay due to the importance of using these clauses in contracts and the lack of legislative history in the Iranian legal system, first the concept of the indemnity clause based on common concepts is explained and then the prohibitions on the use of these clause in contracts are discussed. In addition, the position of this clause in licensing agreement is examined in detail.

Keywords: Indemnity Clause, Transfer of Liability, Risk Allocation, Licensing Agreement.

 

The Value of Fame: A Survey on the Methods of Compensation for Commercial Exploitation of the Reputation of Other

Ali Nazari

M.A. in Private Law, Alborz Campus, University of Tehran, Tehran, Iran.
Email: alinazarilaw@gmail.com

Dr. Abbas Mirshekari

Assistant Professor, Department of Private and Islamic Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran, Corresponding Author.
Email: mirshekariabbas1@ut.ac.ir

ABSTRACT:

Assuming that a celebrity’s reputation is used in commercials without their permission. Naturally, It is more likely to damage them in various ways including damaging their fame and mental health and reduce their opportunity to receive other commercial offers. Moreover, others may take advantage of their reputation without paying a ransom in return. In this case, the study of compensation methods for a famous person is significant and it represents that the value of an individual’s reputation in the legal system. As matter of fact, this article is trying to examine different compensation methods for a famous person depending on the type of loss. In this way, compensation for moral damage by using financial and non-financial methods, compensation for missed opportunities assuming that they could use their capabilities, the obligation of the user to pay interest based on their profit or in proportion to the normal wages of the person are among the findings of this article.

 

Keywords: Celebrities, Commercial Exploitation, Compensation, Damage Assessment, Personality Rights.

 

The Concept and Nature of Arbitration with Power of Peace

Elmira Didban

M.A. in Private Law, Faculty of Social Sciences, Imam Khomeini International University, Qazvin, Iran, Corresponding Author.
Email: eli.dd95.73@gmail.com

&

Dr. Seyed Amir Hesam Mousavi

Assistant Professor, Department of Law, Faculty of law, Imam Khomeini International University, Qazvin, Iran.
Email: a.mousavi@soc.ikiu.ac.ir

ABSTRACT:

Article 483 of the Code of Civil Procedure gives the arbitrators the right to terminate the arbitration peacefully if the parties to the dispute expressly consent. There is disagreement among jurists about the nature of arbitration; most jurists consider arbitrary arbitration to be a kind of friendly arbitration; but in fact, the legislature has allowed the arbitrator to enter into a peace treaty. Under this right, the arbitrator acts as the representative of the parties in accordance with the general terms of the contracts and the terms of the peace agreement; the result of his work is a peace treaty that is concluded between the parties. As a result, arbitrary arbitration is of a different nature from friendly arbitration. In this study, an attempt has been made to reveal the true nature of arbitration with the authority of peace and to clarify the meaning of Article 483 of the Code of Civil Procedure to determine the scope of duties and functions of the arbitrator.

Keywords: Friendly arbitration, vote, peace, peace pact.

 

Deviation from Territorial Jurisdiction and Impossibility to Void the Court’s Ruling Rules in the Estate Partition Lawsuit

Ehsan Bahramy

Ph.D. Student in Private Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.

Email: e_bahramy@sbu.ac.ir

ABSTRACT:

The foundation of civil procedure is the rules that have been legislated for trial’s discipline. However, expedients and circumstances of claim sometimes cause deviation from trial’s rules. With attention to law, it is observed that first, although local jurisdiction of claims about goods is with the court of defendant’s residence and local jurisdiction of claims about immovable property is with the court of  its locale, local jurisdiction of claim to admeasure heritage is the last residence or habitance of decedent. In order to implement this exception, a set of strategies such as place of issuance of probate, place of death, place of occurrence of property, especially immovable property of the decedent, place of heirs’ residence, the last decedent’s residence based on plaintiff’s announcement should be used. Secondly, although one of the characteristics of court’s final verdict according to the rule is that it is not voidable, the verdict about admeasuring heritage is an exception to this rule and is so voidable. In this article, we intend to explain the deviation from two aforementioned rules in the claim to admeasure heritage in law.

Keywords: Admeasure Heritage, Local Jurisdiction, Voidance  of Admeasure, Decedent’s Residence, Decedent’s Habitance.

The Position of Form in Contracts with a Brief Analysis of the Developments of French Civil Law

Amir Zare

M.A. Student in Private Law, Faculty of Law, University of Judicial Sciences and Administrative Services, Tehran, Iran, corresponding author
Email: amirzare74@outlook.com

Sayyed Amin Pishnamaz

M.A. Student in Private Law, Faculty of Law, University of Judicial Sciences and Administrative Services, Tehran, Iran
Email: pishnamaz96@gmail.com

ABSTRACT:

The consensuality of legal actions as one of the results of the principle of autonomy of will means the freedom of individuals in the way of expressing their will; However, sometimes the legislature, for a variety of purposes, obliges individuals to express their will in a specific way or to include certain formalities in their stated will And while ignoring the principle of consensuality of contracts, by silencing the sanction of breach of the prescribed form, it creates the ground for creating disagreement. As a result, it seems necessary to consider a solution that can be invoked in case of doubt. The amendments to the French Civil Code in 2016, while specifying the principle of Consensuality of contracts, provided for the status of invalidity as a general sanction in violation of the prescribed forms of contracts. Although in Iranian law, the consensuality of contracts as a principle is acceptable and therefore has a status similar to French law, however, in cases where the legal conditions governing the form of the contract are not observed, the contract cannot necessarily be considered void; Because the various goals that lead the legislature to set formalities are more diverse than to be able to invalidate any contract that lacks the necessary form. In addition, such an approach contradicts the need to support the principle of correctness and strict construction of exceptional laws. From this point of view, there seems to be a significant difference between Iranian law and French law.

Keywords: Autonomy of Will, The French Civil Code, Iranian Law, Form, The Principle of Correctness.

Unfair Term and Technological Model to Prevent it From Being Included in Commercial Contracts in French, English and Iran Legal System

Dr. Hossein Sadeghi

Assistant Professor, Department of Business Creation, Faculty of Entrepreneurship, University of Tehran, Tehran, Iran, corresponding author
Email: hosadeghi@ut.ac.ir

Dr. Aliakbar farahzadi

Associate Professor, Department of Islamic Law, Faculty of Judicial Law, University of Judicial Sciences and Administrative Services, Tehran, Iran
Email: farahzadi@ujsas.ac.ir

Mehdi Naser

Ph.D. Student in Private Law, Faculty of Law, University of Judicial Sciences and administrative services, Tehran, Iran
Email: Mn.ujsasac0077@yahoo.com

ABSTRACT:

The principle of fairness is one of the principles of trade law, which is sometimes violated by some traders’ anti-competitive practices. Incorporating unfair terms into commercial contracts is one of the acts that can compromise the quality of implementation of this principle. These conditions are sometimes imposed as a result of the behaviors of the macro-traders in the primary supply chain loops in the end-ring trader contracts, and sometimes as a result of the circumstances surrounding the business and consumer contracts. To prevent the abovementioned conditions in contracts, the technological solution offered internationally is the implementation of decentralized platforms and the conclusion of commercial contracts in the form of smart contracts. The mechanism for concluding these contracts is in such a way that the insertion of an unfair condition results in the contract not being formed. But the implementation of this mechanism in the legal system of countries faces challenges that require some legislative policymaking, including the harmonization of international regulations and the creation of information transparency.

Keywords: Smart Contracts, Blockchain, Unfair Terms, Commercial Contracts.

The Penological Analysis of Taxation Crimes

Fereshteh Abdolrahimi

M.A. in Criminal Law and Criminology, Faculty of Law and Political Science, Islamic Azad University (Rafsanjan Branch), Rafsanjan, Iran, corresponding author
Email: Abdolrahimi.fereshteh@yahoo.com

Dr. Seyed Mehdi Ahmadi Mousavi

Assistant Professor, Department of Criminal Law and Criminology, Faculty of Law and Political Science, Islamic Azad University (Rafsanjan Branch), Rafsanjan, Iran
Email: m.moosavi@iaurafsanjan.ac.ir

ABSTRACT:

In penology of tax crimes, we review the penalties imposed on tax offenders and the etiology of determination of these punishments. Before the 2001 amendment to the 1380 Direct Taxes Act, only one tax law provision was foreseen in our tax laws, but today there are several issues surrounding such crimes that we are looking for in the penology of tax crimes. The process of tax penology has been created for several reasons, including the restoration of the criminal policy structure of tax crimes, as initially approved by the Direct Taxes Act (adopted in 1345), which stipulates the non-intervention of criminal policy in the field of economics, it eliminated any criminal interference in the tax area, but today the structure is improving and modifying. Also, we can mention the restoration of the sanctions because in the primary tax laws we did not have a sanctions of a tax crime and the projected sanctions was limited to civil and administrative sanctions, such as fines, but, in the recent amendments, criminal sanctions are also foreseen. One of the other reasons for criminalization is the deterrence of tax laws, which, in anticipation of the heavier penalties in recent amendments to direct taxes act, the legislator is pursuing this goal.

Keywords: Tax Crimes, Penology, Penal Tax Crimes.

Social Factors Affecting Industrial Drugs Addiction (Case Study: Zanjan)

Reza Ahadi

M.A. in Criminal Law and Criminology, Faculty of Humanities and Social Sciences, University of Kurdistan, Sanandaj, Iran, corresponding author
Email: rezaahadi8686@gmail.com

Dr. Shahram Mohammadi

Assistant Professor, Department of Law, Faculty of Humanities and Social Sciences, University of Kurdistan, Sanandaj, Iran
Email: sh.mohammadi@uok.ac.ir

Dr. Hasan Toghranegar

Assistant Professor, Department of Law, Faculty of Humanities, University of Zanjan, Zanjan, Iran Email: hasantz@znu.ac.ir

ABSTRACT:

Drug addiction is a social phenomenon which depends upon various factors resulting from collective, environmental life and the limitations of social structure. This study investigates the reasons of industrial drug addiction in Zanjan from the perspective of criminology.The methodology is causal-comparativeand the population includes the addicts in the Navay-e-Aramesh, Baharan, Toloo-e-Rahaei camps and Mehr addiction counseling center. The sample includes 100 subjects of those available in these camps selected through simple sampling. Pearson, spearman statistical tests and stepwise multiple regression were implemented with SPSS to analyze the data. Based on the findings of this study, the respondents are mostly aged 20-30, their marital status is chiefly unmarried, their education is middle-school certification or diploma; their father’s education is mainly elementary or illiterate, their consumption is largely crystal and heroine, their first consumption’s age is 13-18, and friends have a large influence in their addiction. The results show that there is a significant relationship among social control, social learning, failure and addiction to theindustrial drugs. According to the regression analysis, the most effective factor on this problem one are respectively social learning.The results of this study indicate that social and environmental factors on addiction toindustrial drugs are effective and outcome of this study, are consistent with Cohen’s theories, Sutherland and Hirschi.

Keywords: Social Learning, Social Control, Failure, Addiction, Industrial Drugs.

Being “Public, Private or Government” of the of Public Universities’ Real Estate in Jurisprudence of Adminstrative Court of Justice

Dr. Nasrin Tabatabai Hesari

Assistant professor, Department of Private & Islamic Law, Faculty of Law & Political Science,University of Tehran,Tehran,Iran, corresponding author
Email: nasrintaba@ut.ac.ir

Soroush Safizade

Ph.D. Student in Private law, Faculty of Law, University of Tehran (Farabi Campus), Qom , Iran
Email: safizade.soroush@ut.ac.ir

ABSTRACT:

Lawsuits about real estate of Public universities are among the most frequent lawsuits in the Administrative Court of Justice. The existence of contradictory regulations that do not provide a single understanding of the nature of these real estates (private, public or government) is always the main reason for filing these lawsuits, which has also led to conflicting decisions in the Court.

On the basis, two questions can be arised; First, Under which category of private, public or government property, is real estates of public universities in Iran regulated; And secondly, to what extent is the imagination of this nature for the mentioned property considered efficient in the financial management of the universities?

In this study, relying on the statutes and decisions issued by the Court of Administrative Justice, based on the method of collecting library-documentary information and in the framework of descriptive-analytical research method, we concluded that In Iranian law, real estates possessed by public universities is organized under the legal regime of government property. Although this is an efficient nature in comparison with the public property regime,but in order to achieve the goals and policies of the universities, governmentalization of these properties is a major drawback which can not lead to the optimal function of the boards of trustees for the managment of property and development of the university.

Keywords: Real estate of public universities, private property, public property, government property,Real estate of public universities, private property, public property, government property, financial autonomy of the university.

[۱]. According to our studies, this is the first time that this acronym is used and it is because of new model of comparative studies between linguistics and language of international law which is the first time that is done in this paper.

Leave a Reply

Your email address will not be published.