The Judiciarys Law Journal

Private Law

Legal-jurisprudential analysis of the criterion of insanity with emphasis on diagnostic and statistical manual

Siamak Rahpeyk; Mahdi Hadi

Volume 85, Issue 113 , March 2021, , Pages 353-379

https://doi.org/10.22106/jlj.2021.138287.3742

Abstract

  According to Article 149 of the Islamic Penal Code, “Where at the time of committing a crime, there is a mental disorder in a way that the perpetrator lacked the volition and power of discernment , he will be deemed insane, and shall have no criminal responsibility”. This article is the last ...  Read More According to Article 149 of the Islamic Penal Code, “Where at the time of committing a crime, there is a mental disorder in a way that the perpetrator lacked the volition and power of discernment , he will be deemed insane, and shall have no criminal responsibility”. This article is the last will of the legislator on insanity. In total there are three criteria for insanity: Cognitive and Volition Criterion, customary criterion and companion and Contradiction Criterion. In the cognitive criteria, the main emphasis is on the the nature of the action. Volition criterion relying on individual control over their behavior. In the customary standard, since insanity is a customary concept, it is referred to the custom to diagnosis it. The psychiatric criterion can be analyzed in the context of a specific custom. In the companion criterion, the main emphasis is in relationship with insane person. At paradoxical level, attention is paid to behaviors that are not matched with mental health. The most appropriate solution for detecting insanity is attention to perception and failure of perception based on symptoms such as delusions and hallucinations.

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Criminal Law

An Inquiry to Identify The Jurisprudential-Legal Nature of Orders of Release on Own recognizance Through a Critical Review of The Existing Doctrines

Ruhollah Akrami; mojtaba yasini nasab

Volume 86, Issue 120 , December 2022, , Pages 353-369

https://doi.org/10.22106/jlj.2022.542945.4534

Abstract

  One of the interlocutory orders is the criminal bail writ with various types specified in Article 217 of the Criminal Procedure Code. According to paragraphs “a” to “g” of this article, the investigating judge shall make an agreement with the accused, obliging him/her to attend ...  Read More One of the interlocutory orders is the criminal bail writ with various types specified in Article 217 of the Criminal Procedure Code. According to paragraphs “a” to “g” of this article, the investigating judge shall make an agreement with the accused, obliging him/her to attend in or not to leave the designated place or to appear there periodically. Restricting an accused person who has not yet been proven guilty is against the Principle of Innocence, the Lack of Guardianship Principle (the principle that no person has any naturally vested power over any other person) and the Rule of Domination. Any violation of the mentioned principles requires a permit with special jurisprudential-legal titles, and their occurrence through orders for own recognizance (OR) release necessitates identifying their nature. To interpret the nature of these orders, theorists have put forward various doctrines such as indefinite contract, judicial action and non-contractual obligations. The existence of ambiguities in these doctrines led to the emergence of new possibilities such as declaration of damages, and compromise. The result of this desk-based descriptive-analytical study indicates that the orders for OR release are, by nature, the guardianship ordinance considering the hierarchy in the appointment of officials, and the penalty clause for them is ta'ziri (at the discretion of the judge), imposed by the Islamic ruler on the accused person who violates the ordinance.

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Business Law

Commercial capacity in iranian law and French

abas niazi; saeed johar

Volume 86, Issue 118 , June 2022, , Pages 369-388

https://doi.org/10.22106/jlj.2021.538664.4396

Abstract

  Capacity is the competence of individual statuses as natural persons and also juridical persons who are entitled to exercise rights and obligations. The concept of capacity has been accepted by most of the legal systems. Based on their capacity, individuals are aware of their potential rights and obligations.The ...  Read More Capacity is the competence of individual statuses as natural persons and also juridical persons who are entitled to exercise rights and obligations. The concept of capacity has been accepted by most of the legal systems. Based on their capacity, individuals are aware of their potential rights and obligations.The purpose of such regulations is to regulate the trading system in the general sense from birth (or formation) to the time of death (or dissolution). In this research, a comparative study between Iranian and French laws has been carried out by library and descriptive-analytical methods.First, the concepts and principles related to the capacity of natural persons are mentioned. Then, this subject is examined in the field of commercial law.The main question in this research is whether the rules related to the capacity of individuals in the field of business are similar to those of civil law or each field is governed by a distinct system. The other question in this research is whether the incapacitated persons have the opportunity to do business or not. Besides, whether or not the natural and legal guardians are capable to conduct businesses as the legal representatives of the mentioned individuals. This research is based on the assumption that the regulations of civil and commercial capacity are similar to each other. However, there are some dissimilarities which need to be assessed.Despite advocates beliefs, critics assume that, even in the case of permission of guardians, incapacitated adults are not able to carry out business activities. Meanwhile, the legal or natural guardians are not capable to conduct businesses as the legal representatives in this case.

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Private Law

A Study on The Principles & Challenges of Litigation Financing With an Explanation for The New Approaches to The Iranian Law

mohammad hosein vakili moghadam

Volume 86, Issue 119 , September 2022, , Pages 373-394

https://doi.org/10.22106/jlj.2021.533361.4269

Abstract

  It is commonly assumed that the costs of litigation are provided by the parties. However, the increase in litigation costs, and the need to manage the risk of litigation along with self-interest and earning profit, has also led to the emergence and spread of investment in litigation. Under a process ...  Read More It is commonly assumed that the costs of litigation are provided by the parties. However, the increase in litigation costs, and the need to manage the risk of litigation along with self-interest and earning profit, has also led to the emergence and spread of investment in litigation. Under a process called "litigation financing", a third party pays costs to receive a profit in the event of successful litigation, without relinquishing the right or transferring the litigation. Despite the advantages of this method, concerns have been raised about its adverse consequences on litigation. This article, through an analytical study of the nature and effects of litigation financing, seeks to answer the question of whether the nature of this legal entity is valid or not. And how can we take advantage of it and reduce its negative consequences? What can be accepted is that the financing of litigation is valid and its use will bring benefits to the Iranian legal system, but in order to manage it properly, it is necessary for the legislator to use the experiences of other systems before the popularization of this legal institution. The article brings up the main issues that should be considered in the legal regulation of litigation financing.

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Lack of proper realization of the control of government actions as a kind of social existence

MOHAMAD JAVAD JAVID; ZEIN AL ABEDIN YAZDANPANAH

Volume 85, Issue 116 , December 2021, , Pages 389-410

https://doi.org/10.22106/jlj.2021.528578.4111

Abstract

  Moving from reality to ideal will be a step towards understanding why government oversight is not being achieved beyond the psychological and moral critique of public officials, avoiding abstract and non-historical thinking and inviting a paradigm shift in legal thought. In other words, the central question ...  Read More Moving from reality to ideal will be a step towards understanding why government oversight is not being achieved beyond the psychological and moral critique of public officials, avoiding abstract and non-historical thinking and inviting a paradigm shift in legal thought. In other words, the central question is, beyond the psychological and moral criticism of public officials, what is the missing link in the lack of proper oversight of government actions in Iranian public law? findings are Merely promoting principles and concepts and, consequently, enacting a wide range of laws and establishing oversight mechanisms, the idea of overseeing does not make reality, but Supervision of the actions of government within the framework of public law is a kind of social existence or a form of collective life that arises from the relations between powerful social actors in the context of history and the balance between these real social forces. The recent understanding follows the fundamental insight that our efforts to realize the idea of overseeing government actions in public law through promotion of public law concepts and regulatory prac

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Criminal Law

Characteristics of the desirable model of restorative justice programs in cases of sexual violence: A look at the Iranian judicial discourse

Sepideh Mirmajidi

Volume 85, Issue 114 , June 2021, , Pages 433-463

https://doi.org/10.22106/jlj.2021.137409.3709

Abstract

  In the latest edition of the 2020 Restorative Justice Handbook, restorative justice is defined as any program that uses restorative processes to achieve restorative goals and outcomes. This definition shows that restorative justice adheres to common goals, norms, and criteria for adopting restorative ...  Read More In the latest edition of the 2020 Restorative Justice Handbook, restorative justice is defined as any program that uses restorative processes to achieve restorative goals and outcomes. This definition shows that restorative justice adheres to common goals, norms, and criteria for adopting restorative measures in various legal, social, cultural, and economic contexts, without being limited to an ideal pattern, procedure, or process.So, the desirability of a restorative justice program does not depend on a particular model, but on having features that can bring restorative interventions as close as possible to the goals and outcomes of restorative justice. Accordingly, this article, which is qualitative in nature and descriptive-analytical in method, addresses two main issues: First. What are the characteristics of a desirable model of restorative justice; desirability in terms of the extent to which the most restorative goals and values ​​are achieved, regardless of the model of restorative justice and second. using the method of interviewing twenty judges of criminal court (1) in a Tehran province and thirty victims of sexual violence (both men and women), also addresses this issue that if a judge's restorative interpretations are to be one step away from the status quo in cases of sexual violence and contain more and more features necessary to achieve the most restorative values, then what is the procedure? The result of the research shows that "using trained actors of restorative justice in criminal courts", in the current conditions of the Iranian criminal justice system, is a procedure that can represents the most number of features of a desirable model in these cases.

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History of Law

Iranian attempt to establish a Council of State in the era of constitutionalism

fardin moradkhani

Volume 87, Issue 122 , June 2023

https://doi.org/10.22106/jlj.2022.545654.4606

Abstract

  The history of legal institutions, for instance administrative law institutions, is one of the unknown issues in Iranian legal discussions. Study the history of institutions can help analyze their status and problems. The subject of this article is a historical analysis of the establishment of one of ...  Read More The history of legal institutions, for instance administrative law institutions, is one of the unknown issues in Iranian legal discussions. Study the history of institutions can help analyze their status and problems. The subject of this article is a historical analysis of the establishment of one of the legal institutions in Iran, Which at that time, like France, was called the Council of State. In the exist sources in Iran about the history of the Court of Administrative Justice in Iran, there is only a brief reference to the law of the State Council of 1339. But the issue of establishing a Council of State since the victory of constitutionalism has been an issue for Iranians. This article by descriptive-analytical method and review of historical documents seeks to examine the question of what attempt have been made from the first parliament to the end of the Qajar era to establish a Council of State in Iran. In this article, by study of the exist sources such as the works of Qajar writers, government decrees, parliamentary laws, government programs and detailed parliamentary debates, we have concluded that There was a correct understanding of this institution and its competencies. But the fear that this institution would contribute to the tyranny and power of the monarchy prevented the establishment of this institution.

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Private Law

A Comparative Study of The way of compensation for moral damages: with emphasizing the judicial procedure of Iran

Abbas Mirshkari; FatemehSadat Hosseini

Volume 87, Issue 121 , March 2023, , Pages 351-378

https://doi.org/10.22106/jlj.2022.544179.4557

Abstract

  Moral loss is a kind of harm which damages the person,s non-financial right. At first, there was doubt about the possibility of compensation for this type of loss. For example, in the USA legal system, they did not pay enough attention to victim,s moral losses as they do for financial losses. It was ...  Read More Moral loss is a kind of harm which damages the person,s non-financial right. At first, there was doubt about the possibility of compensation for this type of loss. For example, in the USA legal system, they did not pay enough attention to victim,s moral losses as they do for financial losses. It was argued that moral damages are not visible and so we don’t know the real loss and we should trust just to the victim. In addition, the lack of a structured method of compensation and assessment, makes this kind of loss, secondary damages. How ever, especially, using the psychology Science, courts gradually began to accept moral damages.In Iran, Also there was doubt about moral damages. But today Due to the criminal procedure code which approved in 1392, the compensation for moral damages is acceptable. But what is still vague, is the method. How ever, it seems using some methods like apologize or financial compensation are more practical.Ofcourse in each case this is the judge who should recognize which approach is better and proportional to the plaintiff and his personal loss. In this article we try to study the methods of moral compensation in Iran legal system, and we will use the American studies about this subject and also the cases which raised in Iran judicial procedure.

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در مقوله انشاء رای

Mohammadreaz Khosravi

Volume 63, Issue 27 , June 1999, , Pages 1-8

Abstract

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بحثی تاریخی اقتصادی، فقهی درباره دیات ششگانه

Mohammadhasan Marashi

Volume 57, Issue 7 , March 1993, , Pages 5-16

Abstract

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نگرش جدید بر ضمان عقدی و احکام آن

Mohammad Mosavibojnordi

Volume 56, Issue 4 , June 1992, , Pages 5-42

Abstract

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دعوای متقابل

Javad Vahedi

Volume 55, Issue 2 , December 1991, , Pages 6-21

Abstract

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قواعد حاکم بر تعهد تجاری در حقوق ایران

Rabiaa Eskini

Volume 62, Issue 23 , June 1998, , Pages 7-30

Abstract

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رسیدگی به ماهیت دعوی پس از ابطال رای داور

Javad Vahedi

Volume 62, Issue 22 , March 1998, , Pages 7-10

Abstract

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قاعده تحذیر: نقد هشدار در رفع مسئولیت

Mostafa Mohagheghdamad

Volume 56, Issue 5 , September 1992, , Pages 7-24

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بررسی نظری مسأله فساد اداری

Esmaeil Balali; Davoud Faramarzi

Volume 65, Issue 37 , December 2001, , Pages 8-37

Abstract

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تعارض قوانین مربوط به تجدید نظر از حکم کیفری، در زمان

Mohsen Eyni

Volume 67, Issue 44 , September 2003, , Pages 9-18

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تحول واکنش اجتماعی در قبال بزهکاری اطفال

Mehdi Hojati

Volume 65, Issue 35 , June 2001, , Pages 9-40

Abstract

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ژرف ساخت دلیل کیفری

Pezhman Pourzand Moghadam

Volume 65, Issue 34 , March 2001, , Pages 9-32

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مصونیت برخی از کارکنان دولت از مسؤولیت مدنی و مسؤولیت کیفری

Sam Savad Kouhifar

Volume 64, Issue 33 , December 2000, , Pages 9-18

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بررسی قانون آیین دادرسی دادگاه های عمومی و انقلاب، در امور کیفری به لحاظ پیشبرد اهداف حقوق بشر

Mahmood Akhondi

Volume 64, Issue 30 , March 2000, , Pages 9-34

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ارزش سنت و جذبه عدالت در توارث همسران

Naser katozian

Volume 63, 28-29 , September 1999, , Pages 9-36

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حق بهره مندی از محاکمه عادلانه

Mahmood Akhondi

Volume 63, Issue 27 , June 1999, , Pages 9-16

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قوانین بر سنگ نوشته هیتی ها

Roghayeh Behazdi

Volume 63, Issue 26 , March 1999, , Pages 9-28

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نظرة دقیقة فی اشتراط الرجولیة لمنصب القضاء

Mohammad Mohammadi gilani

Volume 62, Issue 25 , December 1998, , Pages 9-38

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