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Journal of Legal Research – Number 43

Journal of
LEGAL RESEARCH

Number 43

Vol. XIX ● No. 3
Autumn 2020

 

Managing Editor: Vahid Eshtiagh

Editor-in-Chief: Seyyed Ghasem Zamani

 

 

CONTENTS

 

Articles

Controlling of Environmental Violence from the Perspective Deterrence Theory
Dr. Mehdi Sabooripour & Amin Hajivand

Investigating the Jurisdiction of the Crime of Smuggling Currency in Iranian Law
Morteza Servati Biniyaz & Dr. Fereydoon Jafari

Conditions of Realization and Invoke to the Rule of Authority of Criminal Res Judicata
Parviz Naseri & Mehran Masti

Psychological Element Review in Crimes with Absolute Responsibility, with an Emphasis on Crimes against the Environment
Reza Ahadi & Mohammad Bagher Rastegar Mahjanabadi & Dr. Hasan Toghranegar

Assessing the Effectiveness of the Protocol Concerning Regional Preparedness, Response and Cooperation in Combating Oil Pollution Incidents (Aktau Protocol) for Protection of Caspian Sea Environment
Dr. Mona Agha Seyed Jafar Kashfi & Mahnaz Zavie Sham Asbi

Comparative Study of Accomplicy in Crime in Iran, USA and Scotland Criminal Laws
Dr. Mohammad Hassan Hasani & Hamid Alizadeh

The Jurisdiction of the UK Courts to Investigate the Crime of Commercial Bribery
Aliakbar Khodayarinejad

Environmental Pollution through the Dispersal of Nuclear Material: the Criminal Strategy of Iran and the United States
Dr. Seyyed Mustafa Meshkat & Dr. Ahmad Ramezani & Dr. Sohrab Salahi & Dr. Maryam Moradi

The Responsibility of Governments and Private Military-Security Companies (PMSC) Based on the Montreux Document
Mohammad Ali Mostafavi & Dr. Mojtaba Ansarian

The Possibility of Third-Party to Enter in Arbitration on the Base of UNCITRAL Rules and International Commercial Arbitration Law of Iran and Its Effect on Privacy and Confidentiality
Eilnaz Alipasand

Guaranteeing Ownership in the Evolutions of Registration Systems with a Comparative Study of the Registry System in Scotland, United Kingdom, United States and Iran
Dr. Hossein Sadeghi & Mahdi Naser

The Legal – Jurisprudential Analysis of the Absent Verdict
Dr. Mehran Lotfi Foroushani & Dr. Parviz Bagheri

A Critical Enquiry Concerning the Right-based Theory for Justifying Self-defense Leading to Murder
Mehrdad Rahnavard Vaqef & Dr. Mohammadreza Nazarinejad

The Extradition in Iran and Turkey’s Relationships (Challenges and Solutions)
Dr. Ardeshir Farrokhzad

L’épuisement des Droits de Propriété Intellectuelle
Author: Dr. M. Georges Bonet
Translators: Dr. Alireza Mohammadzadeh Vadeghani & Amid Salehi Rad

Articles

Controlling of Environmental Violence from the Perspective Deterrence Theory

Dr. Mehdi Sabooripour
Assistant Professor, Faculty of Law, Shahid Beheshti University, Tehran, Iran
&
Amin Hajivand
Ph.D. Student in Criminal Law and Criminology, Faculty of Law and Political Sciences, Ferdowsi University, Razavi Khorasan, Iran

Abstract: Today, environmental violent crimes have caused the contemporary world to face huge disasters. The purpose of environmental violent crimes is those aggressive behaviors that are punishable by criminal law. In addition to physical damage, aggression involves mental illness, as it is now evident in environmental crime. One of the requirements of the criminal law of the environment is that penalties must be such that they are appropriate and efficient. The guarantee of proper and efficient implementation is that it can be deterred. The theory of deterrence is one of the most important and most influential theories related to the justification of punishment. The basic premise of deterrence is that humankind is a wise and thoughtful entity, and therefore examines the cost-benefit of its actions. According to the theory of deterrence, certainty, severity of punishment, and the speed of its implementation can prevent the perpetration of crimes by potential offenders, leading them to non-committing a crime.
In this paper, the analytical-descriptive method has tried to analyze the conflicting effects of inhibition in the field of law and justice and to provide practical suggestions.
Keywords: Violence, Environmental Crime, Deterrence, Severity of Punishment, Punishment.

Investigating the Jurisdiction of the Crime of Smuggling Currency in Iranian Law

Morteza Servati Biniyaz
M.A. Student, Criminal Law and Criminology Department, Islamic Azad University of Hamadan, Hamedan, Iran
&
Dr. Fereydoon Jafari
Assistant Professor, Law Department, Human Sciences Faculty, Bu-Ali Sina University, Hamedan, Iran

Abstract: The issue of smuggling is one of the most important issues that has been addressed in the Anti-Smuggling and Currency Exchange Act of 1392, and the basis for combating such a phenomenon can be seen as the fight against economic corruption and the maintenance of economic security; with jurisdiction in dealing with the crime of smuggling currency, two kinds of judicial and non-judicial jurisdiction can be considered, which include the jurisdiction of the court of revolution and the general court, as well as the prosecutor’s office, founder and state sanctions Are considered as non-judicial jurisdiction to deal with the crime of smuggling currency. Providing funding, studying legal grounds, and the right to appeal and protest are among the cases of proceedings in the branches of the judiciary and non-judicial branches, which are stipulated in the law.
Keywords: Foreign Exchange, Smuggling, Jurisdiction, Criminal Offenses, Non-Criminal Branches.

Conditions of Realization and Invoke to the Rule of Authority of Criminal Res Judicata

Parviz Naseri
Ph.D. Student in Criminal Law and Criminology, Faculty of Law and Political Science, University of Tehran, Tehran, Iran
&
Mehran Masti
Ph.D. Student of Criminal Law and Criminology, Faculty of Law, University of Tarbiat Modares, Tehran, Iran

Abstract: The Code of Criminal Procedure approved (2013), like its previous regulation, without mentioning the conditions of realization of the rule of authority of criminal res judicata, has identified this rule in the row of one of the nolle prosequi. The existence of this legal vacuum, along with the stagnation and solidity of judicial procedure of the courts, has left this issue in ambiguity, in addition to diversity of opinions. On the other hand, the relative transparency of the provisions of the Civil Procedure Law in this regard, and in contrast to the silence of the criminal law legislator, and, along with these two, the theory of the possibility to resort the rules of civil procedure in the silent provision of criminal procedure, the theory of unity has strengthened the conditions of realization of rule of authority of criminal res judicata. This research, based on an accurate scientific analysis and through the use of descriptive-analytical method, has achieved the following results: 1- The analysis of authority of criminal res judicata based on foundations and civil analysis is methodologically based on a tremendous mistake and leads to unrealistic and non-scientific results; 2- The most appropriate method for analyzing the authority of criminal res judicata is to assess the triple conditions of the unity of the claimants, the unity of subject and the unity of cause with regard to the distinction aspects of criminal domain compared to civil fields, the issue that leads to a conception other than the inference.
Keywords: Criminal Domain, Res Judicata, Re-Pursuit, Unity of Cause, Unity of Subject.

Psychological Element Review in Crimes with Absolute Responsibility, with an Emphasis on Crimes against the Environment

Reza Ahadi
M.A. in Law, Criminal Justice and Criminology, Law Department, Faculty of Humanities and Social Sciences, University of Kurdistan, Sanandaj, Iran
&
Mohammad Bagher Rastegar Mahjanabadi
M.A. in Law, Criminal Justice and Criminology, Law Department, Faculty of Humanities and Social Sciences, University of Kurdistan, Sanandaj, Iran
&
Dr. Hasan Toghranegar
Assistant Professor of Department of Law, Faculty of Humanities, Zanjan University, Zanjan, Iran

Abstract: One of the most important issues in the criminal law is the psychological element of committing a criminal act. Because, in order to be responsible for knowing and attributing the act to the perpetrator, he must act and, in some cases, also have the consequences. In the meantime, the psychological element is very important. The provisions on absolute crimes committed in recent decades have put the psychological element under the overshadowing of the physical element. In this paper, the comparative analysis of the laws in the field of crimes with absolute responsibility, as well as the opinions of lawyers in this area, as well as the investigation of crimes against the environment and the type of responsibility committed by the perpetrator are discussed. Therefore, one can ask whether absolute crimes have a psychological element and they do not need to be proven, or that such crimes are fundamentally different from the other crimes in the discussion of the psychological element and lack the psychological element of responsibility for the offender. And they only commit a legal and physical element? On the other hand, is environmental crime also included in this rule, and what is the basis for the commission of such crimes? The result shows that crimes with absolute responsibility are also psychological and do not need to be proven. Therefore, these crimes, like other crimes, have three elements of law, physical and psychology. On the other hand, environmental offenses are deliberately and in some cases unintentionally committed, which, given the importance of this area, should be considered for committing absolute responsibility.
Keywords: Absolute Responsibility, Psychological Element, Physical Element, Attribution Capability, Strict Liability Offence, The Environment.

Assessing the Effectiveness of the Protocol Concerning Regional Preparedness, Response and Cooperation in Combating Oil Pollution Incidents (Aktau Protocol) for Protection of Caspian Sea Environment

Dr. Mona Agha Seyed Jafar Kashfi
Lecturer at Faculty of Humanities, University of Science and Culture, Ph.D. in Oil and Gas Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran
&
Mahnaz Zavie Sham Asbi
LLM (Master of Law) in Oil and Gas Law, Faculty of Humanities, Science and Culture University, Tehran, Iran

Abstract: Caspian Sea is one of the important regions of the world, due to its enormous oil reserves. Oil production and its transportation are increasing in the region, while the main source of pollution of Caspian Sea is the pollution caused by those operations. Avoiding the negative impacts of such pollution on the environment of Caspian Sea Region requires taking necessary regional mechanisms for prevention, mitigation and regional preparedness against such pollution. Because, each coastal government is not capable of protecting the Caspian Sea environment on its own. Considering the Framework Convention for the Protection of the Marine Environment of the Caspian Sea, this article examines the role of the Protocol Concerning Regional Preparedness, Response and Cooperation in Combating Oil Pollution Incidents. The effectiveness of this protocol for the protection of the environment of Caspian Sea is to be achieved through designing and successful implementation of necessary national and regional plans.
Keywords: Caspian Sea, Oil Pollution, Tehran Convention, Aktau Protocol, Environment.

Comparative Study of Accomplicy in Crime in Iran, USA and Scotland Criminal Laws

Dr. Mohammad Hassan Hasani
Assistant Professor, Criminal Law and Criminology Department, Faculty of Humanities, Damghan University, Semnan, Iran
&
Hamid Alizadeh
Ph.D. Student in Criminal Law and Criminology, Faculty of Literature and Humanities, Urmia University, West Azerbaijan, Iran

Abstract: Persons assisting in the crime without any interference in the material property of the crime are considered accomplice in crime. Despite the adoption of a policy of accepting the criminality of the deputy in the crime, its rules are different in Iran, Scotland and the United States. The Islamic Penal Code has accepted a relative moratorium and milder punishment, in contrast to the offense of crime in Scotland and the United States; it varies according to the occurrence of the crime or its absence. Upon occurrence of crime, the approach of sentencing to criminal has the criminal offense of the deputy in relation to the incomplete crime of incitement or collusion in the the crime of dominate. Various approaches have been adopted on the quality of the material element. For example, leaving the verb with a legal obligation to prevent crime only in Scotland and the United States and assistance after committing a crime is considered only in the United States as a vicegerent in the crime. In Scotland and the United States, despite the common criminal downgrade Mens rea carelessness lessen. The present paper, by analyzing the differences between approaches, descriptively analyzes with a study-library, seeks to differentiate and in crime in the studied countries.
Keywords: Accomplicy in Crime, Companions Crime, Incitement Crime, Culpability Dependence.

The Jurisdiction of the UK Courts to Investigate the Crime of Commercial Bribery

Aliakbar Khodayarinejad
M.A. in International Trade Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran

Abstract: Encountering bribery in commercial contracts is the one of the most important goals of international community. With prevalence of this problem, international organizations enacted conventions to encourage countries fighting against that. With enactment of anti-bribery convention and England adhesion to that, the parliament of England passed bribery act in 2010 to implement the principles and requirements of that convention. With passage of this act, England introduces to international community most comprehensive anti-bribery act to date. Because of importance of this act, Traders and multinational corporations apply particular preparations for cognition and performance of its provisions. Various provisions of this act create widespread jurisdiction for courts of England to prosecute most of domestic and foreign individuals and companies due to paying and getting of briber. The present research aims to study England court’s jurisdiction in investigation into crime of commercial bribery due to breach of bribery acts provisions.
Keywords: Commercial Bribery, Corruption, Bribery Act of 2010, England Courts Jurisdiction, Anti-Bribery Convention.

Environmental Pollution through the Dispersal of Nuclear Material: the Criminal Strategy of Iran and the United States

Dr. Seyyed Mustafa Meshkat
Graduated with Ph.D. Degree in Criminal Law, Law Department, Islamic Azad University, Qeshm Branch, Qeshm, Iran
&
Dr. Ahmad Ramezani
Ph.D. in Criminal Law, Assistant Professor, Faculty of Humanities, University of Science and Culture, Tehran, Iran
&
Dr. Sohrab Salahi
Ph.D. in Criminal Law, Assistant Professor, Law Department, Imam Hossein University, Tehran, Iran
&
Dr. Maryam Moradi
Ph.D. in Criminal Law, Assistant Professor, Law Department, Islamic Azad University, Qeshm Branch, Qeshm, Iran

Abstract: The dispersal of radioactive material is one of the environmental crimes that has both terrorist and non-terrorist dimensions. In this regard, the activists of the international law system with the ratification of the conventions on the physical protection of nuclear materials and suppression of acts of nuclear terrorism in 1979 and 2005, respectively, considered non-terrorist and terrorist dimensions of dispersal of radioactive material. In this way, the legislator of Iran in 2013, considered a wide range dispersal of hazardous substances as one of the instances of Efsade-fel-arz. In addition to the use of ambiguous words and phrases, the necessity of result of the criminal offense and special malice has led to incomplete coverage in terms of dispersal of radioactive material. Muharebeh and threats against public health are other crimes that have challenges and deficiencies in response to the dispersal of radioactive substances. On the other hand, US Federal Lawmakers have clearly and completely criminalized dispersal of radioactive material in both terrorist and non-terrorist dimensions. In the meantime, the purpose of this paper is to review the laws of Iran and the United States against dispersal of radioactive material and then introduce a proper criminal reaction about aforementioned act.
Keywords: Radioactive Material, Dispersal of Nuclear Material, Efsade-Fel-Arz, Muharebeh, Threats to Public Health and Environmental Pollution.

The Responsibility of Governments and Private Military-Security Companies (PMSC) Based on the Montreux Document

Mohammad Ali Mostafavi
M.A. in International Law, Payame Noor University, Qazvin Branch, Qazvin, Iran
&
Dr. Mojtaba Ansarian
Assistant Professor, Faculty Member of Payame Noor University, Qazvin Branch, Qazvin, Iran

Abstract: Private Military-Security Companies (PMSC) have become a concern for the human community in the face of new phenomena in armed conflicts. The government’s responsibility to enforce violations of human rights, the legal status of their armed personnel and direct involvement in armed services, governments to regulate the activities of these companies and the elimination of their mercenary figures had caused their species.
In Montreux, Switzerland (2008), a deal was signed to improve the activities of the companies mentioned and the number of people affected by armed conflicts.
This descriptive study, from a qualitative perspective, with the question of how the international responsibility of non-profit companies has come to be seen, their performance has long been based on the assumption that they are responsible for having an international character in their violent acts, and in the case of companies, Their responsibility will also be recognized what the Montreux document seeks to do.
Keywords: Human Rights, International Humanitarian Law, Companies (PMSC), International Responsibility, Montreux Document.

The Possibility of Third-Party to Enter in Arbitration on the Base of UNCITRAL Rules and International Commercial Arbitration Law of Iran and Its Effect on Privacy and Confidentiality

Eilnaz Alipasand
M.A. in Oil and Gas Law, Faculty of Law, College of Farabi, Tehran University, Qom, Iran

Abstract: With the expansion of social and legal relationships among people in the society, the conflict between the interests of them is raised, and the result of this is revealed in the various claims and multi-party cases. In the regulation of the procedure, the rights of third parties should be taken into account in order to allow the possibility to any person who may claim a right or interest in the dispute, in a transparent process. Multi-party cases in state courts have been identified, irrespective of the agreement of the parties concerned, but in arbitration because of free will of the parties as a main principal that governs on to the arbitration proceedings, the entry of third parties even if their interests were subject to arbitration, It was not possible without the consent of the parties, because privacy and confidentiality are the main features of arbitration and someone other than the parties to the arbitration not only could not be involved in the course of the proceedings as a party but could not even attend the hearing. This procedure was changed by adopting UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, and third parties were allowed not only in litigation but also as a party to the dispute, and this changed the main features of arbitration.
Keywords: Privacy, Confidentiality, Third Party Intervention, Arbitration Law of Iran, UNCITRAL Rules, Transparency.

Guaranteeing Ownership in the Evolutions of Registration Systems with a Comparative Study of the Registry System in Scotland, United Kingdom, United States and Iran

Dr. Hossein Sadeghi
Assistant Professor of Private Law, Faculty of Entrepreneurship, Business Department‎, University of Tehran, Tehran, Iran
&
Mahdi Naser
Ph.D. Student in Private Law, University of Judicial Sciences, Tehran, Iran

Abstract: Developed countries adapt to the needs of the community, changing their Codes to meet the new conditions governing society. In recent years, England with the enactment of the Act 2002, Scotland with the enactment of Act 2012, attempt to reach the goal of guaranteeing ownership. Ownership guarantees are called measures that legal systems or registries of different countries to prevent financial misuse of immovable property and reassure their real owners by employing some tools to further enhance the system of record keeping that country and ultimately the implementation of the legal and accounting system with the new developments of the world. In Scotland, by establishing a comprehensive register system in 2015, and anticipating methods such as voluntary registration and special privileges in the United States, with the development of connected and transparent systems, and the prediction of some qualified entities to determine ownership and using smart contracts in legal system that made an evolution in the registering of documents and in the UK by developing a similar method to Scotland, they have tried to achieve this goal. Unfortunately, in Iran due to the lack of proper infrastructure, the legislator has not fulfilled the formalities of registering to date, so by modeling our countries there is a need to amend the rules of the feeling It turns out.
Keywords: Registration, Property, Document, Guaranteeing Ownership, Cadastre.

The Legal – Jurisprudential Analysis of the Absent Verdict

Dr. Mehran Lotfi Foroushani
Ph.D. in Private Law, Department of Law, Faculty of Humanities, Islamic Azad University, Ahvaz Branch, Khuzestan, Iran
&
Dr. Parviz Bagheri
Assistant Professor of Department of Law, Faculty of Literature, Ilam University, Ilam, Iran

Abstract: Among the judicial arguments at the hearing and the judgment of a judge’s sentencing is issuing the absent verdict. Because the Islamic justice essentiality and the judge’s partnership to the parties, will be with their presence. Knowing or even imagining that one of the parties is right, may violate the rights of others and in the judicial process to find an Islamic jurisprudential, always hide from the complainant and the enforcement of justice. It is natural that people’s trust in our insight increasing security and justice in the society will be seriously jeopardized. All these measures invalid, and in 1379 the legislature to deliver real results in the presence of the sentence, he said. Despite the absence of Shiite jurisprudence examination administered in the presence or absence plaintee description of the issuing presence or absence of the vote. At the present time with the huge amount of the legal cases that influence the quality of the verdicts, the idea of non-protesting the absent verdicts is an outmost legal issue. This study tries to show that the mentioned idea is not in contrary to the idea of the Islamic scholars.
Keywords: Absent Verdict, Protesting, Dispute Resolution, Communication, Defendant.

A Critical Enquiry Concerning the Right-based Theory for Justifying Self-defense Leading to Murder

Mehrdad Rahnavard Vaqef
Ph.D. Student in Criminal Law and Criminology, Faculty of Law, Tarbiat Modares University, Tehran, Iran
&
Dr. Mohammadreza Nazarinejad
Assistant Professor of Criminal Law and Criminology Department, Faculty of Literature and Humanities, University of Guilan, Guilan, Iran

Abstract: One of the significant theories for justifying self-defense that leads to the death of the aggressor is the right-based theory which has been put forward by the contemporary moral philosopher Judith Jarvis Thomson. According to this theory, the central core of the morality and justifiability of self-defense leading to death is that by perpetrating the unjustified deed, the aggressor loses the right not to be killed by others, so the defender can defend himself without violating any rights of the aggressor. One of the main objections that can be raised against this theory is that if the aggressor loses his right not to be killed by attacking the victim/ defender, how can the defender be bound by the constraints of necessity and proportionality in his defense? The proponents of this theory have not been able to give a satisfactory answer to this objection; due to this and some other objections that have been raised against this theory, it cannot be considered a comprehensive theory for justifying self-defense.
Keywords: Self-defense, The Right-based Theory, Right to not be Killed, Proportionality, Necessity.

The Extradition in Iran and Turkey’s Relationships (Challenges and Solutions)

Dr. Ardeshir Farrokhzad
Ph.D. in Criminal Law and Criminology, Faculty of Law, Ankara University, Ankara, Turkey

Abstract: Evading punishment is a natural issue. Turkey, due to its conditions as a neighboring country and the existence of land ways as well as its cultural, religious and language similarities and also because of its special feature in connecting to Europe enjoys a unique position; moreover, the rule of visa waiver which is exercised mutually with this country causes the majority of criminals to prefer escaping thereto. Iran signed offenders extradition treaty with Turkey in 1936 followed by another contract in 2010. Nearly all felonies are not extradited by the Turkey party. This problem has numerous international and domestic reasons at its premise. Some of these constraints pertain to our lack of knowledge regarding the internal laws practices within this country in such a manner that a great many of these limitations can be overcome through gaining a deeper insight of Turkey’s domestic law. Turkey’s criminal procedure, respecting the culprit’s right to defend, has not provisioned trial in absentia. Therefore, based on a sentence absentia, the extradition plea for returning the criminals will be refuted. Furthermore, the term “pursue” is mentioned in the offenders extradition treaty signed between Iran and Turkey, but pursue and its actualization instant differ according to the legal systems adopted in both these countries and such a discrepancy is the cause giving rise to non-extradition. To overcome such barriers, the simplest solution is making the offenders extradition writ’s time of issuance clarified.
Keywords: Offenders Extradition, European Convention on Extradition, Human Right, Judicial Cooperation and Collaboration.

L’épuisement des Droits de Propriété Intellectuelle

Author
Dr. M. Georges Bonet
Professeur à l’université Panthéon-Assas (Paris II)
Translators
Dr. Alireza Mohammadzadeh Vadeghani
Professeur Associé de l’université de Téhéran, Téhéran, Iran
&
Amid Salehi Rad
Titulaire de Maîtrise de Droit de Propriété Intellectuelle, Téhéran, Iran

L’épuisement des droits de propriété intellectuelle est une règle propre au droit de propriété intellectuelle.
La naissance et l’évolution de cette règle, ainsi que ses limites en application au niveau de la communauté européenne, suivis des arrêts y relative rendus par la cour de la justice des communautés européennes, sont les traits principales de cette article.
Il est écrit par Monsieur Gorges Bonnet, professeur à l’université panthéon-Assas, qui porte, en abordant le sujet, une attestation particulière au principe fondamental de droit de destination, et en même temps répond à tant de questions qui se posent les chercheurs bien curieux à ce sujet.
Mots Clés: Épuisement de Droit, Droit de Distribution, la Communauté Européenne, Droit d’auteur, Importation de Produits Similaires.

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