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Journal of Legal Research – Number 47

Journal of
LEGAL RESEARCH

Number 47

Vol. XIX ● No. 2
autumn 2021

Managing Editor: Vahid Eshtiagh

Editor-in-Chief: Seyyed Ghasem Zamani

CONTENTS

Combatting Trafficking in Human Organs in light of the Recent Legislative Initiatives

Dr. Ali Khaleghi & Sarvnaz Sadrzadeh

The crime of major disruption of the economic system in the Law on Punishment of Disruptors of the Economic System and Article 286 of the Islamic Penal Code

Dr. Mojtaba jafari moslem & Azim aqababaei

The Criminal liability in the abstract sense and Territory of its sovereignty over the conduct of a legal person (From theoretical analysis to judicial reaction)

Dr. Vahid Bazvand & Dr. Hosein Normohamadi

Restricting conceptual of Deprivation of right

Dr. Behnaz Ahmadvand

Disciplinary Liability of Judges in France and Germany

Dr. Seyed Naser Soltani & Mohammad Soltani

Judicial Approach to the Annulment of the Internal Arbitration Award

Dr. Hassan Mohseni & Dr. Hassan Kia & Dr. Eisa Amini

The Will of Digital Accounts

Dr. Abbas Mirshekari  & Alireza Fattahi Ketilate

A Contrastive Study of Cession of Claim and Novation by Substitution of Creditor in Iranian Legal System

Dr. Alireza Fasihizadeh & Seyyed Nasir Hosseini Khatoonabadi & Dr. Mohammadamin Fasihizadeh

The role of couple betrayal to dissolve marriage

Dr. Mohammadreza Dadshi Niaki

A Critique of Word Choosing and the Literature of Commercial Law

Dr. Mohammad Reza Abbasi & Dr. Gholam Nabi Faizi Chakab & Dr. Hussein Al-Kajbaf

Attachment of Meaning to Interpretation in International Law Texts: The Relationship between Legal Criteria and Cognitive Concepts and Political Reflection

Dr. Ali Mashhadi & Dr. Seyed Mohammad Hossein Mirzadeh

The impact of legal terminology on the minority situation: The Case study of Rohingya in Myanmar

Dr. Neda kardoony

The Expansion and Contraction of the Elements of Customary International Law: Analysis of ICJ Advisory Opinion on the Legal Consequences of the Separation of Chagos Archipelago from Mauritius in 2019

Dr. Hadi dadmehr

The right to strike during the corona pandemic in the Iranian and international legal system

Dr. Ehsan bagherzade & Dr. Seyyed ghasem zamani

 

Articles

Combatting Trafficking in Human Organs in light of the Recent Legislative Initiatives

Dr. Ali Khaleghi

Associate Professor, Department of Criminal Law and Criminology, Faculty of Law and Political Science, University of Tehran, Tehran, Iran, corresponding author.

Email: akhaleghi@ut.ac.ir

&

Sarvnaz Sadrzadeh

Master in Criminal Law and Criminology, Alborz Campus, University of Tehran, Tehran, Iran.

Email: sarvnaz.sadrzadeh@gmail.com

ABSTRACT:

Following the arrival of the human trafficking caravan in Iran and the subsequent intervention of lawmaker in 2004 to put forth special legislation for combating it, there has been recent troubling signs pointing to a new phenomenon of trafficking in human organs in the country. The inherent exploitation on a basis of financial strength in such practices leads to societal inequities predominately favoring the rich over the poor, which is further exacerbated by the consequential drop in humanitarian organ donations to legitimate medical institutions. As such, this condition constitutes a grave breach in ethical and moral standards of society. Furthermore, such procedures often conducted in absence of proper medical training and technology may result in infliction of irreparable harm upon both the donor and recipient parties. The banning and criminalization of the trafficking in human organs by the international community, as well as the internal strife from an increase in observed cases of such activities, has prompted the legislative and executive branches to submit a draft proposal, for ratification by the Parliament of the Islamic Republic of Iran, laying out the punitive measures for involvement in such activities. The present article provides a critical assessment of the deficiencies in the current draft.

Keywords: Organ Transplantation – Human Trafficking – Trafficking in Human Organs – Organized Crime – International Documents.

The crime of major disruption of the economic system in the Law on Punishment of Disruptors of the Economic System and Article 286 of the Islamic Penal Code

Dr. Mojtaba jafari moslem

Ph.D. student in Criminal Law and Criminology, Faculty of Literature and Human sciences, University of guilan, guilan, Iran, corresponding author.
Email: Mojtabaja6@gmail.com

Azim aqababaei

M.A. Student in Criminal Law and Criminology, Faculty of Literature and Human sciences, university of Shahrekord, Shahrekord, Iran.

azimaghababaei@gmail.com

ABSTRACT:

Article 2 of the penal code for Disruptors of the Economic System of the state for the crime of major disruption in the economic system of the country, the death penalty if the crime is motivated to confront the Islamic Republic or hit it or know the effectiveness of action against the system if To the extent of corruption on earth, it has determined for the perpetrator of this crime. With the approval of Article 286 of the Islamic Penal Code in 1392 and the legislator’s will to consider the crime of corruption on earth as one of the crimes subject to had, disruption of the economic system is one of the examples mentioned in this article if the conditions stipulated in the article are met., Will be punished for corruption on earth. Also, in both of the above-mentioned laws, macro disruption in the economic system is considered as an example of corruption on earth, while the conditions for the realization of corruption on earth are different. This study, in addition to trying to find a solution to provide objective and quantitative criteria for distinguishing criminal titles subject to these laws, seeks to find an answer to the fundamental question of whether with the approval of Article 286 BC, to issue the death penalty. For macro disruption in the economic system, is there room left to invoke the law punishing disruptors in the country’s economic system or not?.

Keywords: Macro Disruption in Economic System, Corruption on the Earth (Efsad fil Arz), Major Disruption.

 

The Criminal liability in the abstract sense and Territory of its sovereignty over the conduct of a legal person (From theoretical analysis to judicial reaction)

Dr. Vahid Bazvand

PhD student in Criminal Law and Criminology, Faculty of Crime Prevention and Correction and Training, University of Judicial Sciences and Administrative Services, Tehran, Iran, corresponding author.
Email: vahidbazvand70@gmail.com

Dr. Hosein Normohamadi

Ph.D. student in Criminal Law and Criminology, Faculty of Law and Political Science, Allameh Tabataba’i University, Tehran, Iran

Email: hosein.normohamadi96@gmail.com

 

ABSTRACT:

The emergence of legal entities as one of the social actors challenged human relations, in the most obvious example of which was the possibility or impossibility of the dominance of criminal law in their criminal response. Social necessities led to criminal policy in the Islamic Penal Code of 1392, with the impact of new concepts in the field of abstract criminal responsibility and rational discourse of responding to crime, with the transition to the case of past pragmatism, which is often the approach of criminalization (not criminalization) is the behavior of responsible persons. Identify and explain general criminal law of legal entities. Judicial practice in response to recent legislative developments, has continued to operate under the influence of the traditional model of criminal liability of the legal entity, the “longitudinal model” and the existing legislative capacity to implement the “cross-parallel” model of criminal liability between the two. The main question in this regard is that in the new approach, the legislator has been influenced by which of the theoretical foundations of legalization of legal entities? The “thinking brain” theory seems to have dealt with transversal criminal liability and the “superior liability” or “employer liability” theory with longitudinal liability, so that the first theory in discretionary punishment crimes and the recent theory in blood money have been considered by the legislator. Accordingly, since the current interpretation of the judiciary is not in line with these theories, it has not led to the opinion of the legislature.

Keywords: Criminal Liability, Legal Entities, Criminology and Judicial Procedure.

 

Restricting conceptual of Deprivation of right

Dr. Behnaz Ahmadvand

Faculty Member of National Research Institute for Science Policy (NRISP), Tehran, Iran

Email: Behnazahmadvand@gmail.com

ABSTRACT:

The word “right” is the most basic and practical concepts in the domain of law. The word Right is known as an easy and impossible concept. Although the apparent of this word seems simply; but has a countless complicated nature. The word has multiple dimensions and wide aspects, the “foreclosure” is one of its dimensions and the subject of this article.

There are several types of deprivation of rights. It may be done by one person or another or by the ruling political power. It may be thought of as absolute or relative, and it may also be regarded as a right, or as an effect of a right, or as a punishment.

This article is an attempt to define the concepts surrounding foreclosures and analyze similarities and differences in the legal literature of Iran, religious teachings and Western legal texts.

Keywords: Deprivation of right, Waive, release, Denunciation, Suspension, Abolition.

 

 

Disciplinary Liability of Judges in France and Germany

Dr. Seyed Naser Soltani

Assistant Professor, Department of Public Law, Faculty of law, college of farabi, University of Tehran, Tehran, Iran, corresponding author.
Email: naser.soltani@ut.ac.ir

&

Mohammad Soltani

Master of Law, Faculty of Law, University of Qom, Qom, Iran
Email: behrangalborz@gmail.com

ABSTRACT:

Because of their position and power regarding soul, property, and honor of people, the conduct of judges has crucial or fatal effect on the life of clients of courts. Therefore, some threats and issues threaten the position of judges. Moreover, the personal conduct of judges can influence the entire judicial system and monitoring their conduct is therefore an unavoidable course of action. With respect to the difficulties and increasing complexity of judgment, some working groups in Judicial Branch and High Disciplinary Court of Judges in the studies countries have been established to investigate the number and nature of faults and reports of regulatory bodies and to take further measures including in-service trainings for judges in order to avoid and control the offences, and teach the ability to overcome the problems and failures. Hence, every judicial system is supposed to utilize precise investigations and experiences of other countries to achieve the desired objectives of judicial branch, and to provide opportunities and strategies for correction of professional conduct of judges. In the studied countries, a set of ethical codes for judges is provided in which principles are defined and clarified on which the judges should rely on. Precise and detailed monitoring of commercial and economic activities of judges are ordained which are not noticed in Iranian Judicial System, and the nature of social and economic transitions of Iranian society urges ordaining such regularities, whereas in the law of monitoring the conduct of judges in Iran which is ratified in the recent years, such aspects of this issue has not been the concern of Iranian legislators.

 

Keywords: disciplinary liability, disciplinary fault, the code of conduct of judges, judicial ethics, judicial dignity.

 

Judicial Approach to the Annulment of the Internal Arbitration Award

Dr. Hassan Mohseni

Associate Professor, Department of Private and Islamic Law, Faculty of Law and Political Sciences, University of Tehran, Tehran, Iran, corresponding author.
Email: hmohseny@ut.ac.ir

&

Dr. Hassan Kia

Ph .D. Student in Private Law, Faculty of Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran
Email: hassan.kia.law@gmail.com

&

Dr. Eisa Amini

Assistant Professo, Department of Private Law, Faculty of Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran
Email: e.amini@iauctb.ac.ir

ABSTRACT:

The Way in Which different legal systems deal and interact with arbitration has varied over time. Earlier, and during the newborn of arbitration, the general approach was at extensive intervention of courts in arbitration, and reduces arbitration to an exeption in legal system. Now, with growth and attention to arbitration, courts intervention in many cases, replaced with support and protection from arbitration and national courts reduces your intervention to parties demanded in limited items. supply of arbitration goals and depelopment of attention to arbitration is on the mortgage of redusesd supervision and intervention of national courts and limit to exeption items as breach of public police. so it must be accepted respect for the sovereignty of the will require that in arbitration non-intervention is principle and items of intervention to be exceptional, limited and tender. in this passage systematize of intraction and collision of courts and arbitration is inescaple and protection of the court. that way to be categorized items of absolute void of arbitral award and be accepted court intervention in them and other items that arbitral awards is voidable and personal be subject to defendant will at a certain time and court don’t be offended that, at the implementation stage.

Keywords: Supervision, Arbitration, Judicial Procedure, Personal Aspects, Absolute Aspects.

 

The Will of Digital Accounts

Dr. Abbas Mirshekari

Assistant Professor, Department of Private and islamic Law. Faculty of Law and Political Sciences, University of Tehran, Tehran, Iran, corresponding author.

Email: mirshekariabbas1@ut.ac.ir

Alireza Fattahi Ketilate

Master Student in Private Law, Faculty of Law, University of Judicial Sciences and Administrative Services, Tehran, Iran
Email: alirezafattahi1997@gmail.com

ABSTRACT:

Can users decide on the status of the accounts he used in cyberspace to create, receive, send, transfer, store or display information, after their death, through a will? It seems that due to the financial value of the accounts and the information contained therein, as well as the rule of jurisprudence of dominance, users have the right to transfer the account and its content or leave their management to other in the form of a will for various purposes. However, many digital account service companies use existing legal loopholes to resist users ‘wills under various pretexts, such as violating users’ privacy or the non-transferability of the account and its contents.

Considering the legal gap in Iranian legal system and many other countries in determining the fate of digital accounts after the death of users and also the insufficiency of the legal literature in this field, this study, attempts to examine the possibility and validity of a person’s will to the digital account and information. Assessing the issue and applying legal rules leads us to the conclusion that users can make a will about the information contained in their account under particular circumstances, and such a will would be valid.

Keywords: Digital account- Information- Will- Privacy – Domination Principle.

A Contrastive Study of Cession of Claim and Novation by Substitution of Creditor in Iranian Legal System

Dr. Alireza Fasihizadeh

Assistant Professor, Department of Law, faculty of Administrative Sciences and Economics, University of Isfahan, Isfahan, Iran, corresponding author
Email: fasihizadeh@ase.ui.ac.ir

&

Seyyed Nasir Hosseini Khatoonabadi

Master in private law, Department of Law, faculty of Law and Humanities, Islamic Azad University Isfahan Branch, Isfahan, Iran
Email: hosseini_nasir@yahoo.com

&

Dr. Mohammadamin Fasihizadeh

Ph.D. student in Private Law, faculty of Law and Humanities, Islamic Azad University Isfahan Branch, Isfahan, Iran
Email: mfasihizade@chmail.ir

ABSTRACT:

According to Article 292 of the Iranian Civil Code, substitution of an obligation has three types, one of which is substitution of the creditor. Many jurists believe that Paragraph 3 of the mentioned Article has mistakenly defined cession of claim instead of novation and therefore, there is a lack of a thorough definition for novation by substitution of creditor in the civil code. In this paper, in addition to clarification of the differences among these two legal terms, a critical review of their distinctions regarding their legal background, change or existence of the obligation, extent of validity and parties of the legal relationship and also the state of guarantee of the obligation has been done. As a result, it’s been found that in Iranian legal system, the legislator has independently accepted both of the legal terms of cession of claim and novation by substitution of the creditor. Moreover, although the regulations of novation has been legislated briefly in only two Articles of the civil code, its complete nature, specific conditions and legal effects can be recognized by consideration of general rules of contracts and there is no room for confusing it as a subdivision or type of cession of claim.

Keywords: Cession of claim, debt, novation, novation by substitution of creditor, Transfer of Obligation.

 

The role of couple betrayal to dissolve marriage

Dr. Mohammadreza Dadshi Niaki

Assistant Professor, Department of Law, Rasht Branch, Islamic Azad University, Rasht, Iran
Email: r_niaki@yahoo.com

ABSTRACT:

Sexual infidelity in the family system, both from the side of husband or wife, is a behavior that has many effects. In terms of jurisprudence and law, one of its debatable works is the event of the dissolution of marriage contract. Since the entities such as libation and divorce are the demand and claims of husband, in the event of betraying a wife, there is no problem. Because the husband’s way is smooth to dissolve and only in that dissolution occurs in the form of termination or divorce is common ground with the demand for the dissolution of the wife where the betrayal of the husband is carried out. What this research has achieved is that betrayal of a husband is in any way effective in dissolving marriage contract. By examining the opinions, arguments, and narratives, we can say that this dissolution due to the husband’s betrayal, both in the form of separation can be realized and in the form of termination as well as in the form of divorce claims; and its propagation is by the husband or the ruler.

Keywords: Dissolution of marriage, sexual affair, Distress and Constriction, couple betrayal, Terminate the marriage contract.

 

A Critique of Word Choosing and the Literature of Commercial Law

Dr. Mohammad Reza Abbasi

Ph. D. graduate, Department of Private Law, PayamNoor University,Tehran, Iran, corresponding author
Email: mra1390@yahoo.com

&

Dr. Gholam Nabi Faizi Chakab

Assiastnt Professor, Department of Law, Allameh Tabatabai University,Tehran, Iran, Email:legalfayz@gmail.com
&

Dr. Hussein Al-Kajbaf

Associate Professor, Department of Private Law, Payame Noor University, Tehran, Iran,
Email: alekajbaf@yahoo.com

ABSTRACT:

Humans communicate with each other through words and convey the message to the audience, in principle, words are understood by customary meanings. In the case of non-compliance with this principle, communication will confront problems, simultaneously the convey of meanings will face difficulties, and understanding the objectives will not be simply possible. Whereas the legislature aims to adopt regulations to regulate social relations, it is expected that the legislature observes the minimal principles of literature not only for choosing the words but for the way of writing them. In this study, the descriptive-analytical method is used and this question is examined that to what extent the Electronic Commerce Law has succeeded in using words and observing the fundamental principles of literature. Despite the significance of the Law, it seems that the legislator has not been succeeded in applying the rules and principles of writing. In particular, the failure is evident in the section of definitions, since some words are selected which seem pleonasm, and some words are defined which in part have an obvious meaning. Due to the weakness in passing the concepts on, in some parts of the Law the basic principles of literature are not used properly.

Keywords: Reliable message data, Text, Message data integrity, Electronic commerce.

 

Attachment of Meaning to Interpretation in International Law Texts: The Relationship between Legal Criteria and Cognitive Concepts and Political Reflection

Dr. Ali Mashhadi

Associate Professor, Public and International law, Department of, Public and International law, Faculty of of Law and Political Sciences, University of Qom, Qom, Iran, corresponding author.
Email: A.mashhadi@qom.ac.ir

&

Dr. Seyed Mohammad Hossein Mirzadeh

Ph. D. in International Law, Faculty of Law and Political Sciences, Islamic Azad University, Qom, Iran
Email: Interprete3@gmail.com

ABSTRACT:

Using examples of strategic language in interpretation of international law instruments, the authors demonstrate the usefulness of cognitive framing- pragmatics in studying legal interpretation. In order to do this, they draw some cognitive scholar studies like Wahlich and Fillmore. In cognitive framing, for instance, there is an ongoing debate on if there is any relationship between cognitive studies and international law texts or not. This paper unpacks this debate and shows how it can be employed to better explain interpretive processes in international law. Cognitive framing or strategic use of language have to do with how to comprehend the real meaning of structures and expressions. For instance, the term “liberalization” stands for “military intervention” or “security wall” is changed by simply “wall” under how languages of international law are used. The strategic use of language shows that one government could play with interlocutors, choosing positive frames but using negative positions and ways. Examples of such situations are too much in international law instruments and here, the authors are to be define and clarify these situations by some practical examples.

Keywords: strategic language, cognitive framing, international law, interpretation, instrument and text.

The impact of legal terminology on the minority situation: The Case study of Rohingya in Myanmar

Dr. Neda kardoony

Ph.D. in International law, Faculty of law, Theology and political Science, Islamic Azad University, Science and Research Branch, Tehran, Iran
Email: kardoony@gmail.com

ABSTRACT:

Terminology related to minority issues in international law has a broad impact on managing the cultural diversity such as the rights of racial, ethnic, national and language groups and also the security of the states, societal groups and in general human security. Lack of transparency about the meaning of words such as ethnicity, people, nation, indigenous and different legal interpretations surronding them, provoke a grave difficulty in the course of coding and promoting minority rights. This global challenge has created much more serious confusion in countries like Myanmar where minority- state relation is highly securitized. Securitization of minority issues along with this terminology ambiguity in international law make the minority-state relation in those country more complicated. This paper tries to show how the confusion around terminology affects the minority issues in the legal context.

Keywords: Legal Terminology, Minority, International law, groupness, the Rohingya

The Expansion and Contraction of the Elements of Customary International Law: Analysis of ICJ Advisory Opinion on the Legal Consequences of the Separation of Chagos Archipelago from Mauritius in 2019

Dr. Hadi dadmehr

Ph.D. Student in International Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran
Email: h_dadmehr@sbu.ac.ir

ABSTRACT:

The International Court of Justice’s boldness in condemning U.S. military and paramilitary activities in Nicaragua (1986) has been regarded as a turning point in an evolving confrontation between the great powers and the UN judicial body. Now, in the third decade of the eradication of colonialism, the International Court of Justice has made another historical decision against another great power, declaring the illegality of the UK’s continued presence in Chagos Archipelago. In addition to the political aspects of Chagos’s Advisory Opinion, there remain several legal issues which deserve attention. This research analyzes two important legal issues in this regard. The first issue is to examine the ICJ methodology in determining the existence of the right to self-determination as an international customary rule. The author argues that ICJ has done this by contraction of the objective element of customary international law (CIL) and expansion the significance of the subjective one.

Keywords: International Court of Justice, Self-determination, Methodology, Customary International Law, Chagos.

The right to strike during the corona pandemic in the Iranian and international legal system

Dr. Ehsan bagherzade

Ph.D. Student in International Law, Department of Public and International Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran, corresponding author.
Email: bagherzadehehsan@yahoo.com

&

Dr. Seyyed ghasem zamani

Professor, Department of Law, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran
Email: zamani@atu.ac.ir

ABSTRACT:

As the enjoyment of many rights and freedoms is challenged by the prevalence of the coronation in the world, and the right to strike is restricted as an important right of the second generation of human rights,and in accordance with the protocols of the World Health Organization They have a negative impact on the right to life and the right to health.First, they have an international responsibility for the right to health and the right to life,and they must be accountable to international institutions for the health and well-being of the people and the individual and public health of citizens. Secondly, this prohibition is based on the health protocols of international organizations, especially the WHO.

The issue of enjoying the right to strike during the corona epidemic according to international documents is the subject of this study.The creation of a new “rule of conduct” in times of emergency such as the corona epidemic is one of the most important responsibilities of governments.Therefore,in order to prevent the abuse of sovereignty in the closure of rights and freedoms,the new regulations should be based on the protocols of the competent international organizations, and since the WHO is responsible for developing and communicating fair protocols during the corona epidemic in a way that prevents conflict. Have other rights and freedoms, including the right not to strike. Therefore, immediate follow-up of international organizations is necessary in order to return the situation to normal conditions and not to continue the state of emergency until these conditions are established.

Keywords: enjoyment, right to strike, corona pandemic, protocol, international law.

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