Philosophy of Law
Seyed Hoseini; firouz mahmoudi; Batool Pakzad
Abstract
AbstractThe concept of "right" has always been discussable and controversial during the time. Therefore the nature and existence of the "right not to be punished" are often discussed as challengeable issues among philosophers. The discussion has become more serious between proponents and opponents of ...
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AbstractThe concept of "right" has always been discussable and controversial during the time. Therefore the nature and existence of the "right not to be punished" are often discussed as challengeable issues among philosophers. The discussion has become more serious between proponents and opponents of the aforementioned right especially in the last few decades. Through a descriptive-analytical method (library study), this article, while studying the nature of the right not to be punished, from the perspective of both natural and positivist (positive) approaches, examines the existence or non-existence of this right in the perspective of its proponents and opponents. Our research found that the “right not to be punished” is as the type of “conditional negative claim-right” that the proponents of natural rights, justifies its existence. while positivists do not believe such a right. Even they are talking about “the right to be punished” and the government,s duty to punish criminals. of course, the number of philosophers who agree with the “right not to be punished” and the reasons for their justification is less than the number of philosophers who oppose it; But these same justifiable reasons (the proponents) are more in line with the approach of natural law, moral theories of punishment, human dignity and the principle of criminal law as last and least resort. Generally, “the right not to be punished” does not mean never to be punished, but to impose a corrective, dignified, minimal and, necessary punishment on the offender.
Criminal Law
ali amiri; Javadj Tahmasebi; Batool Pakzad
Abstract
In this article, "Application of the principle of equality in guaranteeing impartial criminal proceedings" has been researched by descriptive-analytical method. Examining the dimensions and angles of the principles of "equality" and "impartiality" set forth in Articles 2 and 3 of the Code of Criminal ...
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In this article, "Application of the principle of equality in guaranteeing impartial criminal proceedings" has been researched by descriptive-analytical method. Examining the dimensions and angles of the principles of "equality" and "impartiality" set forth in Articles 2 and 3 of the Code of Criminal Procedure and explaining the commonalities and differences and explaining the role of these two rituals in evaluating the performance of judges and the legislator's guarantee policy, are among the objectives of this study. Although the emphasis on the implementation of the principle of equality in the constitution indicates the privileged position of this principle in the judicial security of the country, but, the findings of the study suggest that the legislature in implementing its criminal policy, has not used all the capabilities of this important in standardizing the behavior of judges and in the face of global conventions and the strategy of the unity of international law, it has not adopted a clear strategy. The result is that, today the capability and authority of the system has the ability to technically revise the laws in accordance with the fixed and changing principles of Islam and Jafari dynamic jurisprudence and in accordance with the requirements of the time, and declare its firm position on conflicting issues. By specifying the role of the psychological element in violations and stating the prohibition of violation of the principles of equality and impartiality in different stages of the trial along with appropriate punishments, the criterion of justification of judicial rulings should also be stated and prevented the accumulation and formation of cases subject to the provisions of Article 477 of the Code of Criminal Procedure.
Private Law
ali amiri; Javad Tahmasebi; Batool Pakzad
Abstract
"Management of referral of criminal cases in guaranteeing an impartial trial", while having an intangible and intangible feature in the trial process, has an extraordinary role in the formal and substantive processing of proceedings and the strategy of the country's supreme judicial management. Although ...
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"Management of referral of criminal cases in guaranteeing an impartial trial", while having an intangible and intangible feature in the trial process, has an extraordinary role in the formal and substantive processing of proceedings and the strategy of the country's supreme judicial management. Although with the return of the legislator from the managerial approach and determining the two criteria of "specialization" and "order", in drafting Articles 448 and 465 of the Code of Criminal Procedure, It has taken an important step towards the rule of law and the oversight of managers, but the lack of full entry into this field, The challenge of overcoming this problem remains unresolved. And despite the Supreme Disciplinary Court's commitment to legislative safeguard policies, the lack of coherent rules and adequate safeguards in this regard allows any referring authority to abuse its powers and legal loopholes to curb the initiative. And by his purposeful referral, divert the course of the proceedings from the path of justice and deprive the parties to the dispute of the right to equality and the enjoyment of an impartial tribunal. Therefore, diligence in training and reducing the concentration of power of the referral authority, selection and appointment of experienced, committed and specialized managers, explaining the position of the referral in the trial process and aspects of appealing against votes, setting appropriate deadlines and comprehensive criteria for referral, along with performance guarantees Special and providing desirable oversight, can help to refer wisely and impartially and thus improve the efficiency of the judiciary and community satisfaction.
