LEGAL RESEARCH
Number 59
Vol. 23 ● No. 59
October 2024
Managing Editor: Vahid Eshtiagh
Editor-in-Chief: Seyyed Ghasem Zamani
CONTENTS
Statehood of Palestine and the Exercise of Jurisdiction by the International Criminal Court with Emphasis on the Decision of the Pre-Trial Chamber
Savalan Mohamadzadeh; SEYED TAHA MOUSAVI MIRKOLAEI; keivan eghbali
The Latest Developments in the Crime of Aggression in International Law
Mohsen Ghadir; Mohamdreza Rashnavadi
Fairness and Justice in the Procedure of the Iran–United States Claims Tribunal
Fatemeh Niavarani; Fathollah Rahimi; Tavakkol Habibzadeh
Activities of Non-State Actors and Redefining the Concept of International Legal Personality
Pouria Askari; Zahra MoshrefJavadi
The Right to Clothing in International Law, A Forgotten Right?
Stephen James; Amir Feizbakhsh
The Effect of Reformed Cheque Issuance Law on Its Legal Enforcement Guarantees
Ebrahim Abdipour fard; Reihaneh sadat Tabatabaei nejad; Fatemeh Bazoukar
Examining Examples and Elements of Illegal Competition and Anti-Competitive Practices with an Emphasis on the Resulting Civil Liability
Leila Ghaemi; Hossein Ghorbanian; Alireza Hasani
Civil Liability of Persons Related to Blood Transfusion with Allocation to the Blood Bank Department in the Conditions of Corona
Samaneh Zolfaghari; Abdolreza Farhadian
The Duty of Adverse Drug Reaction Alerting from the Perspective of Laws, Current Practices, and Guidelines Related to a Comparative Rights Approach
milad mashayekh; vali eslami
The Challenges of Returning Property and Assets Caused by Corruption in Iran’s Legal System
Sayyed Vahid Kazemi; Mohammad Rouhani Moghadam; Asal Azimian
Reasons for Growth and Solutions to Combat Money Laundering Through Bitcoin in Iranian Law
Fatemeh Gilak; Davood Khaksar; Mahsa Shiravi
A Reflection on the Foundations of Rights and Disputes
Ali Shamsi; Hassan Mohseni; Dawood Nasiran Najaf Abadi
Examining the Retrial for Conflicting Two Rulings Emphasizing the “Same Court” Element in the Light of Doctrine and Judicial Procedure
Roohollah Taherifard
Agreement on the Retroactive Effect of Termination of the Contract in the Event of the Termination Condition; Its Rulings, Effects and Exceptions
mohsen esmaeili; Amirabbas Askari
Validation of the Evidentiary Power of the Confessions Presented in the Prosecution
Seyyed Mohammad Mehdi Sadati; Fazlollah Foroughi; Amin , Jalili
Attainment of the Right Theory; A Window to the Justifiability of judges’ Supervision on Ordinary Laws
Amirhossein Alizadeh; Ghasem Alizadeh
The Effect of Attitude and Economic Foundations on Criminal Policy Making in the Field of Intellectual Property
Melika Khalilollahi; Mohsen Sadeghi; Shahla Moazami
Extremist Legitimate Defense in Iran’s Criminal Proceedings (with an Emphasis on Intentional Homicide)
Saeed Ghaedi
Observance with the Principles of Fair Trial in Administrative and Disciplinary Violations; Iran and England with Emphasis on the Non Bis in Idem Principle
Hakime Farnam; Mohammad Mahdavisabet; , Mohammad Ashouri; Ali Saffary
The Necessity to Observe the Interests of the company in the Assumption of Director’s Contract with Himself with Recognition in the British Legal System
Hosein Bahrami
Statehood of Palestine and the Exercise of Jurisdiction by the International Criminal Court with Emphasis on the Decision of the Pre-Trial Chamber
- Savalan Mohamadzadeh
- PhD Student in Public International Law, Faculty of Law and Political Science, Allameh Tabataba’i University, Tehran, Iran
- SEYED TAHA MOUSAVI MIRKOLAEI
- Assistant Professor, Department of International Law, Ershad Damavand Non-Profit Higher Education Institute, Damavand, Tehran, Iran
- keivan eghbali
Researcher of the Judiciary Research Institute
Abstract
The occupation of a large part of Palestinian lands and long history of war and killings in parts of the said land have always made the existence of a Palestinian state in international law ambiguous. The decision of 5February 2021 of the PTC regarding the exercise of jurisdiction over the crimes committed by the Israeli authorities in the occupied territories, has led to the necessity of raising the issue again in international law. Granting the status of Non-Member Observer State to Palestine according to G/ A Resolution 67/19 in 2012and Palestine’s accession to the Rome statute on2January2015, were among the preparations for issuing the said decision. In this decision, PTC without considering itself bound to assess the situation of Palestine’s statehood, considered the Court competent to hear,simply because Palestine is a member state of the statute.The basic question in this article is that in the light of the decision of PTC , what role and position does the statehood of Palestine have in determining the jurisdiction of the court?The following article, with the descriptive-analytical method and library tools, reaches the conclusion that despite the existing doubts about the effective control over the land, granting the status of non-member observer state in the UN to Palestine and joining to Various international organizations have had a significant impact in accepting it as a member state in theICC and consequently in confirming the jurisdiction of the Court; A process that indicates an implicit emphasis on the Constitutive theory of recognition in international law.
Keywords
Statehood ،Palestine، Jurisdiction، International Criminal Court ،Israel
The Latest Developments in the Crime of Aggression in International Law
Mohsen Ghadir
Assistant Professor, Department of International Law, Faculty of Law, University of Qom, Qom, Iran
Mohamdreza Rashnavadi
PhD Student in International Law, Faculty of Law, Qom University, Qom, Iran
Abstract
The crime of territorial aggression is among the most terrible international crimes. After the outbreak of World War II, the Allies decided to try the defeated Axis of this war, including on charges of crimes against peace. After seventy years since the last and only case of the crime of aggression was prosecuted in an international criminal court, the jurisdiction of the International Criminal Court was activated in July 2018 over the crime of aggression. The explanation of the way to activate the jurisdiction of the court and its fruition since the drafting of the statute followed a winding path and lasted for two decades. The 16th session of the General Assembly of the International Court of Justice started on the 4th of December at the headquarters of the United Nations in New York with the speech of the Secretary General of the United Nations and ended on the 14th of December. The most important achievement of the 16th summit was the activation of the International Criminal Court’s jurisdiction over the crime of “Territorial aggression”. we seek to investigate the latest developments in the crime of aggression in international law using a descriptive-analytical method.
Keywords
Crime of Aggression ،International Criminal Court، Activation of the Jurisdiction of the Court، International Law، Kampala Conference
Fairness and Justice in the Procedure of the Iran–United States Claims Tribunal
Fatemeh Niavarani
PhD Student in International Law, Faculty of Law, Tehran North Branch, Islamic Azad University, Tehran, Iran.
Fathollah Rahimi
Assistant Professor, Department of Law, Faculty of Law, Tehran North Branch, Islamic Azad University, Tehran, Iran.
Tavakkol Habibzadeh
Associate Professor, Department of Public Law, Faculty of Islamic Studies and Law, Imam Sadiq University, Tehran, Iran; Invited, Department of International Law, Faculty of Law, Tehran North Branch, Islamic Azad University, Tehran, Iran.
Abstract
Justice and fairness are the greatest goals of legal proceedings both in international courts and tribunals and in domestic courts. Equity and fairness are the center of gravity of foreign investment law, which aims to increase the flow of capital globally and improve economic relations between countries. Attracting foreign investment through gaining trust in the administration of justice in the judicial and arbitration system is very important for economic growth. Fairness has different functions and concepts. Sometimes it is known as a general legal principle and sometimes as ex aequo et bono and sometimes it is seen as a code of conduct and in foreign investment agreements as fair and equitable treatment. The views of the Iran-United States Claims Tribunal, which is 40 years old, are very important in various investment issues and the approach of the tribunal, as one of the most influential arbitration authorities in the international arena, is the goal of this article; by searching the opinions of the Court, it aims to clarify the position of fairness, ex aequo et bono and fair and equitable treatment in the decisions of the tribunal. Relying on contractual law and international law, the tribunal has the authority to resort to equity, ex aequo et bono and fair and equitable treatment. But among the concepts and functions of fairness, only equity has been invoked by the tribunal as a legal principle.
Keywords
Fairness، Ex Aequo et Bono، Fair and Equitable Treatment، Iran-United States Claims Tribunal، Foreign Investment
Activities of Non-State Actors and Redefining the Concept of International Legal Personality
Pouria Askari
Associate Professor, Department of Public Law and International Law, Faculty of Law and Political Science, Allameh Tabataba’i University, Tehran, Iran.
Zahra MoshrefJavadi
Faculty of Law and Political Science, Allameh Tabataba’i University, Tehran, Iran.
Abstract
A controversial issue in international law is how international legal personality is defined or by what criteria it is conferred. The field mainly tries to address the questions that who has international legal personality, and what characteristics the actor must be endowed with, to be the subject of international law thereafter. scholars and theorists in international law have sought to define the standards and criteria in order to recognize the international legal personality. International law takes different approaches to the issue of international legal personality and specifies the status of actors, as Subject or Object, based on different factors and circumstances. In the beginning, the presence of states was the focus, however, other actors in the international system took on different forms gradually. Besides, International organizations and non-governmental entities such as non-governmental organizations (NGOs), companies, armed groups, etc. appeared on the international scene. therefore, we gradually observe that the influential factors and the definition of the international legal personality have transformed. Thus, nowadays, international law requires specifying the type of its relationship with these actors in order to preserve its function. This article represents the challenges of international law encountering non-state actors through the lens of international legal personality to determine how non-state actors are addressed by international law.
Keywords
International Legal Personality،Non-State Actors،Subject، Object، State-Centric
The Right to Clothing in International Law, A Forgotten Right?
Stephen James
Senior Researcher, Parliament of Victoria, East Melbourne, Victoria, Australia.
Amir Feizbakhsh
PhD Student in Human Rights, Faculty of Law, Laval University, Quebec, Canada.
Abstract
Clothing has long been considered one of the necessities of human life in many cultures. However, only a few documents and declarations of rights in the international and regional scene mention it. For example, the United Nations International Covenant on Economic, Social and Cultural Rights mentions the right to clothing in its eleventh article. But the importance of this right over other basic needs has been overlooked by the Committee which monitors the implementation of the Covenant. As the same way, international law practitioners and human rights scholars have also disregarded the right to clothing. Much research has been done on freedom of dress in the context of civil and political rights. But the right to adequate clothing has been surprisingly neglected among other economic, social, and cultural rights. The dressing of a person is not only related to his economic status, but also to his position in society. Furthermore, one’s clothing affects one’s cultural, sexual, and religious identity, as well as one’s dignity and even one’s health. The insignificant recognition of such a right in the legal sphere justifies its being considered a forgotten right.
Keywords
International Law، Human Rights، Economic، Social and Cultural Rights، Right to Adequate Clothing، Right to an Adequate Standard of Living
The Effect of Reformed Cheque Issuance Law on Its Legal Enforcement Guarantees
Ebrahim Abdipour fard
Professor, Department of Private Law, Faculty of Law, University of Qom, Qom, Iran.
Reihaneh sadat Tabatabaei nejad
M.A in Private Law, Faculty of Law, University of Qom, Qom, Iran.
Fatemeh Bazoukar
PhD Student in Private Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran.
Abstract
The check has played a significant role as a commercial document in facilitating monetary transactions. Therefore, establishing the most desirable rules and regulations for this document to strengthen its position in the payment system has always captured the attention of lawmakers from the outset. Numerous regulations have been imposed on checks from the past to the present, with the latest being related to the amended law of 2018. According to the aforementioned law, numerous developments have occurred regarding various issues related to checks, with one of the most significant being the changes introduced in the field of legal enforcement guarantees of checks. Some of these changes are aimed at amending past regulations and making modifications to them, while others stem from legislative innovations in the said law. One of the innovations of lawmakers in this area includes the enforcement of cheque payments through judicial execution without judicial review, as well as the establishment of enforcement guarantees related to the banking system. In general, the establishment of such enforcement guarantees with a non-penal approach and the creation of deprivations of banking services for dishonored cheque issuers themselves indicates a shift in the legislator’s approach from repressive policies to replacing a legal and banking approach for the recovery of bounced cheques.
Keywords
Issuance Cheque Act،Enforcement Guarantee، Uncovered Cheque، Direct Enforcement، Banking System
Examining Examples and Elements of Illegal Competition and Anti-Competitive Practices with an Emphasis on the Resulting Civil Liability
Leila Ghaemi
PhD Student in Private Law, Faculty of Law, Damghan Branch, Islamic Azad University, Damghan, Iran.
- Hossein Ghorbanian
Assistant Professor, Department of Law, Shahrood Branch, Islamic Azad University, Shahrood, Iran. - Alireza Hasani
Assistant Professor, Department of Private Law, Faculty of Law, Damghan Branch, Islamic Azad University, Damghan, Iran.
Abstract
One of the goals of the legal and jurisprudential system is orders for prosperous and competitive business, so that sellers and producers receive real wages and buyers receive the best quality by paying the minimum price, applying illegal competition and using anti-competitive procedures. It is one of the strategies that some economic companies use to remove competitors from the market. In this research, first the examples and elements of these acts and then the civil responsibility resulting from them are examined. Finally, it was found that articles 249 and 244 of the General Penalty Law deal with issues related to illegal competition, anti-competitive practices, and especially the concepts of insidious competition, and specify the civil and legal responsibilities related to these actions. which is not subject to penal regulations, the injured party can request compensation for material and moral damages according to the civil liability law, and in fraudulent competition, in addition to requesting compensation, the aggrieved person can request to prevent and stop actions that are included in the definition of fraudulent competition. Please ask the court, taking into account new and creative ways of applying anti-competitive procedures and conducting insidious competition, the need for more legal supervision and the establishment of new laws in accordance with the civil responsibility of applying new procedures and illegal competition, especially in cyberspace and according to With the progress of science, it is felt more and more.
Keywords
Illegal Competition ،Anti-Competitive Practices ،Civil Liability، Healthy Market، Fair Competition
Civil Liability of Persons Related to Blood Transfusion with Allocation to the Blood Bank Department in the Conditions of Corona
Samaneh Zolfaghari
M.A in Private Law, Faculty of Law, Meymeh Branch, Islamic Azad University, Meymeh, Iran.
Abdolreza Farhadian
Assistant Professor, Department of Family Law, Faculty of Law, Kashan Branch, Islamic Azad University, Kashan, Iran.
Abstract
With the spread of the corona virus (Covid-19) in 2019, in addition to various physical, material and spiritual damages, it affected the social and economic life of many people, especially the people of Iran. Due to the fact that the mentioned virus appears in different ways in people, it may cause blood loss in infected patients and it is necessary to supply the need from the blood bank. Therefore, among the legal issues that can be raised in connection with the provision of blood by the blood bank in the conditions of the outbreak of the Covid-19 (Corona) virus, is the civil liability of the blood bank. According to this research, which was carried out using a descriptive-analytical method, blood bank employees are responsible for the patient’s health during the transfusion of blood or its products under normal conditions, and they are responsible for compensation to the extent of the effective fault in the damage caused to the patient. Therefore, in emergency situations, such as the uncontrollable situation of Corona, the blood bank does not have any responsibility towards patients requesting blood, and if blood or blood products are requested and prepared for the patient according to the doctor’s order, depending on the extent of the doctor’s fault and lack of His supervision of the blood transfusion by the nurse, the civil liability is imposed on him, unless the fault of the nurse is proven for his improper performance. Finally, compensation for both material and moral damage, depending on the effectiveness of the performance of each of the above-mentioned departments, is charged to them individually or jointly.
Keywords
Blood Bank ،Civil Liability، Corona Virus، Covid-19، Blood Transfusion
The Duty of Adverse Drug Reaction Alerting from the Perspective of Laws, Current Practices, and Guidelines Related to a Comparative Rights Approach
milad mashayekh
PhD in Jurisprudence and Private Law, Faculty of Law and Political Sciences, Kharazmi University, Tehran, Iran.
vali eslami
Assistant Professor, Department of Law, Faculty of Law and Political Science, Chalous Branch, Islamic Azad University, Chalous, Iran.
Abstract
From the point of view of production, the current era can be considered as the era of complex products, because we have passed from the era of traditional products to the industrial one and we are witnessing the strong role of industry in the current life of people from life to death. One of the examples of the expansion of industry can be It was clearly observed in the production and supply of pharmaceutical products. Products that are directly related to human health and life play a role in this sensitive valley. The lack of access for all to different biomes in order to obtain traditional medicines is definitely a matter of praise, especially if the producer goes through all the production steps well and without any defects, which will be highly appreciated. If the procedure is carried out properly, it still brings unwanted side effects, which of course, the extent of these side effects also has severity and weakness, and naturally its destructive effects are also different. In the upcoming article, Pira’s Warning Duty we will pay attention to the unwanted side effects of medicine and in order to identify the person responsible for the warning, we will stick to the descriptive-normative method. The doctor’s consensus has pointed out that we will explain and examine this issue in detail in the next article.
Keywords
Medicine، Side Effects، Warning، Development Risk، Product Liability
The Challenges of Returning Property and Assets Caused by Corruption in Iran’s Legal System
Sayyed Vahid Kazemi
PhD Student in Criminal Law and Criminology, Semnan Branch, Islamic Azad University, Semnan, Iran.
Mohammad Rouhani Moghadam
Associate Professor, Department of Jurisprudence and Fundamentals of Law, Semnan Branch, Islamic Azad University, Semnan, Iran.
Asal Azimian
Assistant Professor, Department of Law, The Legal Research and Judicial Assistance Center, Shahrood Branch, Islamic Azad University, Shahrood, Iran.
Abstract
Basically, the main topic of the United Nations Convention against Corruption (UNCAC) is the fifth chapter, asset recovery. This chapter has been one of the most important emphases of developing countries, including the central role of our country in the negotiations related to the formation of the convention in Merida, Mexico. Therefore, corruption is one of the issues that have been given serious attention at different regional, national and international levels. By examining the documents and documents available in the judicial policies, it is possible to understand the policies and programs that try to prevent and deal with this big social problem from various dimensions. In this article, using the descriptive, analytical, and library-based method, the challenges of returning property due to corruption in Iran’s legal system have been investigated. In this regard, the first priority of the international anti-corruption conventions and centers is that different countries around the world organize their laws by joining and applying the guidelines of these centers in the field of preventing and fighting corruption. In this way, efforts have been made at international levels to organize the fight against corruption in a more favorable way by taking concerted measures. Also, at the national level, the actions of the judicial and legal institutions of the system, such as strengthening cooperation to fight and follow up on corruption, presenting a report on the state of corruption at the national level, etc. have been effective in the field of fighting corruption. Finally, according to the nature and position of these policies, the hypothesis of the research, which is the ability to refer to the policies of the legal system, has been confirmed and it has been explained that the necessity of returning property, property and illegitimate assets is one of the basic principles in Iran’s legal system. One of the evidences of the rationality of this rule is the acceptance of its provisions in many legal systems of the world.
Keywords
Corruption، Return of Property، UNCAC، Legal System، Iran
Reasons for Growth and Solutions to Combat Money Laundering Through Bitcoin in Iranian Law
Fatemeh Gilak
M.A in Criminal Law and Criminology, Pardis Branch, Islamic Azad University, Tehran, Iran.
Davood Khaksar
Mahsa Shiravi
Assistant Professor, Department of Criminal Law and Criminology, Pardis Branch, Islamic Azad University, Tehran, Iran.
Abstract
The electronic revolution and as a result the increasing growth of electronic commerce and the increasing complexity of financial markets, despite the rich profits it has brought to the government and nations, has also caused the growth of a group of crimes, one of which is money laundering. Money laundering means making the proceeds of criminal activities appear legal and legitimate. In this process, by hiding the illegitimate source of his income, the person spends the resulting money in legitimate and legal ways and causes its original source to disappear, and in the end, his dirty money becomes clean money. On the other hand, today, the desire of individuals and communities to use cryptocurrencies, especially Bitcoin, is increasing, and the use of this currency, despite all its advantages and merits, has provided the basis for the growth of money laundering. In our country, during the last two decades, corruption and money laundering have become two inseparable components of Iran’s economy; Therefore, what is very important today is the implementation of an effective and efficient mechanism to combat all types of money laundering, including money laundering through cryptocurrencies. The most important solution currently proposed is to join the FATF convention, recognize and establish strict laws regarding bitcoins due to their digital nature, which can be used to prevent crimes such as money laundering. This research has been done using descriptive-analytical method and using library resources.
Keywords
Money Laundering ،Cryptocurrency ،Bitcoin، Digital Currency، FATF
A Reflection on the Foundations of Rights and Disputes
Ali Shamsi
PhD Student in Private Law, Faculty of Law, Theology and Islamic Studies, Najafabad Branch, Islamic Azad University, Najafabad, Iran.
Hassan Mohseni
Professor, Department of Private Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran.
Dawood Nasiran Najaf Abadi
Assistant Professor, Department of Law, Faculty of Law, Theology and Islamic Studies, Najafabad Branch, Islamic Azad University, Najafabad, Iran.
Abstract
The main focus of this article is on the relationship between the substantive right and the lawsuit that is filed to assert and prove it. Nevertheless, theconnection between rights and disputes or litigation is so strong, andsometimes complex, that it is impossible to imagine one without the other.The overlap and dependence of rights and disputes is like the embodimentof a two-sided coin. Each side of the coin finds meaning next to the other.However, thisrelationship will have important theoretical and practicalresults. Whether the acceptance or non-acceptance of the lawsuit, the legalelements of the lawsuit, the division of types of lawsuits, the jurisdiction ofthe courts and sometimes the outcome of the lawsuit, depend on thesubstantive right of origin of the lawsuit. This article tries to examine andanalyze this relationship and overlap of rights and litigation and its resultsin Iranian law and other country.
Keywords
Right، Dispute،Procedure، Litigation، Substantive Right
Examining the Retrial for Conflicting Two Rulings Emphasizing the “Same Court” Element in the Light of Doctrine and Judicial Procedure
Roohollah Taherifard
PhD Student in Private Law, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran.
Abstract
Two people sign a contract with each other in Isfahan and the place of fulfillment of the commitment is Tehran. The first party files a lawsuit against the defendant in Tehran once, and the verdict is issued against him. He brings the same lawsuit without changing the legal reason in Isfahan for the second time. The defendant is not informed about the new lawsuit, or he does not go to court to defend himself, thinking that the court will again issue a verdict in his favor. The verdict, however, will be issued in favor of the plaintiff. According to the Civil Procedure Law, if two judgments are contradictory with the same subject, cause and, parties, the second judgment will have the possibility of retrial. By interpreting “the same court” as “unity in the branch” or “unity in the jurisdiction” which is accepted by the doctrine and judicial procedure, the reinstatement of proceedings is eliminated. In this article, the above viewpoints are criticized and with a comparative study and a review of the former civil procedure laws, the view of the unity of class and type is accepted.
Keywords
Code of Civil Procedure، Retrial،contradicting verdicts، the same branch، the same jurisdiction
Agreement on the Retroactive Effect of Termination of the Contract in the Event of the Termination Condition; Its Rulings, Effects and Exceptions
mohsen esmaeili
Associate Professor, Department of Private and Islamic Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran.
Amirabbas Askari
PhD in Private Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran.
Abstract
The termination of the contract due to the termination clause has an effect on the future. The contract is valid until the condition of termination has not occurred. After the termination condition occurs, the contract will be terminated immediately and the effect of the termination will not be extended to the past. However, the parties to the contract may consider their interest in terminating the contract from the first day and agree that the contract will be terminated from the beginning if the condition of termination occurs. There is a difference in jurisprudence and law regarding the possibility of accepting such an agreement, and its rulings, effects and exceptions are not well defined. It is necessary to determine whether there is a possibility of agreement on the regressive effect of the termination of the contract due to the rescission condition or not, and then determine its rulings and effects. In this article, the analytical-descriptive method has been used from library sources, and while comparing the subject, the conclusion was reached that it is possible to generalize the effects of contract dissolution due to the termination condition compared to the past. The rulings, effects and exceptions of this matter have also been reviewed and explained.
Keywords
Regression Effect،Hypothetical، Contract Termination، Retroactive Effect، Spontaneous Termination
Validation of the Evidentiary Power of the Confessions Presented in the Prosecution
Seyyed Mohammad Mehdi Sadati
Assistant Professor, Department of Criminal Law and Criminology, Faculty of Law and Political Science, Shiraz University, Shiraz, Iran.
Fazlollah Foroughi
Associate Professor, Department of Criminal Law and Criminology, Faculty of Law and Political Science, Shiraz University, Shiraz, Iran.
Amin Jalili
M.A in Criminal Law and Criminology, Faculty of Law and Political Science, Shiraz University, Shiraz, Iran.
Abstract
Confession is the nobler of reasons, the nobler of truth discoverers. Confession sometimes occurs before the judge in court and sometimes outside the court. The former is referred to as judicial confession and the latter as non-judicial confession. Regarding the basis of criminal sentences based on non-judicial confessions, when the confession is the only documentary evidence of the case, according to Note 2 of Article 119 of the Criminal Procedure Code and Note 2 of Article 218 of the Islamic Penal Code approved in 2013, the non-judicial confessions are not competent to prove in the case He knows the “reason”. It seems that the criminal legislator, relying on evidence such as the narrations that tell about the necessity of confession before the judge, the lack of the place and audience for confession, i.e. the lack of the institution of the prosecution in the judicial cycle of the Islamic judicial system, the institutionalized caution in the criminal policy of Islam in proving crimes, has inclined to the conclusion that To demote non-judicial evidence from “reason” to “judicial evidence”. In the meantime, while rejecting the, there should not be any obstacle to the possibility of the evidence presented in the prosecution as “evidence”, unless the criminal law with The attention of gratitude and caution institutionalized in the criminal policy of Islam in proving crimes should decide the slips of guilty people, and accepting this decision also requires not violating the rights of people in the crimes of human rights.
Keywords
Confession ،Prosecutor’s Office، Court، Reason، Judicial Decree
Attainment of the Right Theory; A Window to the Justifiability of judges’ Supervision on Ordinary Laws
Amirhossein Alizadeh
PhD in Private Law, Faculty of Law, Tarbiat Modares University, Tehran, Iran.
Ghasem Alizadeh
PhD Student in Public Law, Faculty of Law, Mazandaran University, Mazandaran, Iran.
Abstract
Judge’s Fundamental judicial supervision on ordinary laws is one of the most important issues in the last decade. The problem is that the judge, in the position of hearing the case and invoking the rule of law, which may have a dual source in the constitution and the ordinary, can act as the basic supervisor of the ordinary law and set it aside? The new viewpoint is based on the theory of the attainment of the right and jurisdiction of the Judiciary. According to this view, the patterns of fundamental rules are based on the generality and foundations of the legal system and derive from all the effective norms affecting it and protecting the fundamental rights of individuals, and the judge as a selector person, due to the sources of right, selects the justice verified rule and settles the lawsuit. In this view, the legal rules are subject to the basic duty of the Judiciary in such a way that the judge refuses to enforce them in dealing with laws that are contrary to the reference and fundamental norms. This non-enforcement has a negative character and cannot be used to repeal the law. In this view, the dominance of the legal aspect of political supervision is not only in conflict with the theory of separation of powers, but also in line with its goals and the rule of law.
Keywords
Fundamental Supervision، the Right، Separation of Powers، the Judiciary، Judge، Ordinary Law
The Effect of Attitude and Economic Foundations on Criminal Policy Making in the Field of Intellectual Property
Melika Khalilollahi
PhD Student in Criminal Law and Criminology, Kish International Campus, University of Tehran, Kish, Iran.
Mohsen Sadeghi
Associate Professor, Department of Private Law, Faculty of Law and Political Sciences, University of Tehran, Tehran, Iran.
Shahla Moazami
Associate Professor, Department of Criminal Law and Criminology, Faculty of Law and Political Sciences, University of Tehran, Tehran, Iran.
Abstract
Today, the traces of intellectual property rights can be seen in all fields. On the other hand, the economy has long been necessary for the progress and continuity of a country. Intellectual property rights have a direct and indirect relationship with economic growth and development, with efficient and appropriate laws in this field, it can be seen in different sectors. Therefore, the aim of this research is to analyze and investigate the effect of economic attitude and fundamentals on criminal policies in the field of intellectual property rights (in a qualitative way) and to answer the question that economic attitude and fundamentals affect the optimal criminal policy in What kind of appropriate and efficient punishment does this area need? The hypothesis of the research is that the nature of intellectual property crimes is such that it seems that the punishment of monetary penalty and also the consideration of punitive damages is more efficient than the punishment of imprisonment, and according to some evidence, the punishment of imprisonment cannot be efficient and useful, in other words, the costs of the crime should be also considered. This research is based on documentary and field methods in the form of interviews with the benefit of library resources and so on. Also, this research shows that in the case of determining the punishment of imprisonment, a criterion should be determined based on the type of crime, based on the conditions, and considering various factors for the criminal.
Keywords
Intellectual Property Rights، Economic Attitude،Economic Foundations، Criminal Policy، Punishment
Extremist Legitimate Defense in Iran’s Criminal Proceedings (with an Emphasis on Intentional Homicide)
Saeed Ghaedi
PhD Student in Criminal Law and Criminology, Faculty of Law, University of Judicial Sciences and Administrative Services, Tehran, Iran.
Abstract
The Islamic Penal Code of 1392, with its late entry into comply, has accepted extreme or excessive legitimate defense and developed legitimate defense. From the point of view of the new legislator, the Imperfect legitimate defender on the other hand, and is not the same as someone who in an aggressive and oppressive manner, he commits another murder, and on the other hand, in intentional murder, he deserves to be decriminalized from the punishment of retribution without absolute decriminalization. Despite this, it is recommended to consider Note 2 of Article 156 and Note 2 of Article 302, the need for a logical interpretation in determining the rule. The acceptance of legitimate defense requires an extreme, even though in this decision, both the conditions of defense and the degree of defense have been taken into account. The current research, using the analytical-descriptive method and collecting the required information in the library method, and relying on the cases of intentional homicide in the criminal justice system, Iran tries to evaluate the impact and impression of the judicial procedure of legal duality with the approaches of punishment based on defense conditions. and show the levels of defense, and at the end, while emphasizing the need for consistent criminal policy in order to protect the rights of walid the conclusion is reached that Note 2 of Article 302 is only about crimes and is based on non-observance of the levels of defense despite the necessity and truth of the principle of defense And the position of Note 2 of Article 156 also applies to other crimes in the absence of one of the conditions of legitimate defense .The effect of extreme legitimate defense in crimes is the deliberate impunity of revenge, and in other crimes, it is simply the imposition of the burden of the lack of defense conditions on the defender from the attacker.
Keywords
Islamic Penal Code 1392، Legitimate Defense، Intentional Homicide، Conditions of Defense، Levels of Defense، Judicial Procedure
Observance with the Principles of Fair Trial in Administrative and Disciplinary Violations; Iran and England with Emphasis on the Non Bis in Idem Principle
Hakime Farnam
PhD Student in Criminal Law and Criminology, Faculty of Theology, Law and Political Sciences, Science and Research Unit, Islamic Azad University, Tehran, Iran.
Mohammad Mahdavisabet
Assistant Professor, Department of Criminal Law and Criminology, Faculty of Theology, Law and Political Sciences, Science and Research Unit, Islamic Azad University, Tehran, Iran.
Mohammad Ashouri
Professor, Department of Criminal Law and Criminology, Faculty of Theology, Law and Political Sciences, Science and Research Unit, Islamic Azad University, Tehran, Iran.
Ali Saffary
Associate Professor, Department of Criminal Law and Criminology, Faculty of Law and Political Science, Shahid Beheshti University, Tehran, Iran.
Abstract
The principle ne bis in idem, as one of the principles of fair proceedings, is rooted in the acceptance of the negative effect of foreign criminal sentences and is derived from the most important goals of international criminal law, i.e. preventing re-punishment of the accused for a single criminal act. This prohibition is a reminder of an important rule in the Criminal proceedings are called the validity of the judged criminal case in the criminal court. Even though administrative and disciplinary violations have significant differences with criminal offenses in terms of their nature, sources and examples, but in terms of comparison, their similarities, especially in predicting the guarantee of repressive executions, are significant, as they cannot be divided into two completely independent areas. On the other hand, entering the discussion of the criminal matters has made it more necessary to pay attention to these similarities, which are the basis for the perpetrator to enjoy the guarantees of fair trial principles, both in crimes and in administrative and disciplinary violations. In Iran, in relation to administrative and disciplinary violations, some of the principles of fair proceedings, especially the important principle ne bis in idem, are not only not observed, but according to Article 19 of the Administrative Violations Law 1372, it is even stipulated against it. Therefore, in this article, while comparing the crimes and violations, with the assumption that the English criminal system is a good model in this field, researcher has also briefly discussed the procedure of the administrative courts of this country. The study method in this article is analytical-descriptive and based on the review of related domestic and foreign texts.
Keywords
Administrative and Disciplinary Violations، Principles of Fair Trial، The Non Bis in Idem Principle، England، European Court of Human Rights
The Necessity to Observe the Interests of the company in the Assumption of Director’s Contract with Himself with Recognition in the British Legal System
Hosein Bahrami
Assistant Professor, Department of Jurisprudence and Islamic Law, Faculty of Humanities, Bozorgmehr University of Qaenat, Qain, Iran.
Abstract
The manager’s transaction on behalf of the company with himself is a situation of conflict of interest and is possible that the manager considers his own interests to be preferable to the interests of it; Accordingly, the legislator should try to protect the company. The legislator has issued a ruling only in relation to a joint-stock company what he means is the place of dispute; Therefore, the purpose is to deduce the legislator’s opinions regarding the mentioned company and others in comparison with English law. In the above company, managers must first take the consent of the board of directors and then the general meeting of co-partners (Article 129 of the Amendment bill of the commercial code). Otherwise, the transaction can be canceled; even if invalidity conflicts with third-party rights with good intentions (Article 131 of the mentioned code); However, if the consent of the board of directors has been obtained and the assembly does not approve, and the invalidity of the transaction conflicts with the third party, the transaction will be valid with respect to him (Article 130 of the above code). In other companies, according to the similarity, the same rulings should be valid; As for the cooperative society, the rules of the joint stock company are current; but sometimes, it is not possible; Therefore, the rules of agency must be enforced. In the British, the above transaction is also accepted; But it has differences with Iran; Such as all companies are subject to uniform rules.
Keywords
Contract with Himself، Conflict of Interests، Director، Company، Interest
