Shahram Ebrahimi
Family Law
ZAHRA REZAPOUR; mohammad farajiha; mohammad roshan
Abstract
According to empirical studies, the process of investigation and traditional and retributirism magisterial decisions have not been effective in finding the appropriate answer and reducing the inflation of domestic violence cases despite its high costs; Since the point of view of the above-mentioned criminal ...
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According to empirical studies, the process of investigation and traditional and retributirism magisterial decisions have not been effective in finding the appropriate answer and reducing the inflation of domestic violence cases despite its high costs; Since the point of view of the above-mentioned criminal justice system has been only to deal with the substantive issues of the lawsuits and apply the rule to them. Attempts to solve this problem and apply alternative views had to the proposal of a new approach under the title of problem solving with components such as rethinking the role of the judge in many countries under the common law system. The current research deals with two main issues through the aforementioned approach: First, what is the evolution of the judge's role in problem solving approach? And second, to what extent have the effects of this evolution been recognized in Iran's legal system? To answer them, the method of content analysis of legal documents and documents, including judicial cases (15 samples) in the summer of 1401, was used in the Justice Complex of Razavi Khorasan province. Also13 hearings were also observed and investigate the attitude of criminal justice authorities, 30 judicial activists and lawyers and a number of victims interviewed using the in-depth interview method. The findings of the research showed that in the approach of problem solving, in the criminal justice system of Iran, the judicial procedure of some judges, although unknowingly and unsystematically, has the characteristics of problem solving with different degrees
Islamic jurisprudence
zahra najjarzadegan sarabi; hadi sadeqi; mohammad hossien nazemi esheni
Abstract
The main issue of the court is the realization of the right, not the termination of the case. Therefore, the judge must use all kinds of arguments and ways to discover the truth. This requires judicial ijtihad, which is different from jurisprudential ijtihad. It depends on whether the judge can look ...
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The main issue of the court is the realization of the right, not the termination of the case. Therefore, the judge must use all kinds of arguments and ways to discover the truth. This requires judicial ijtihad, which is different from jurisprudential ijtihad. It depends on whether the judge can look for evidence to find out the truth, and whether the search for evidence has a place in judicial ijtihad. In this article, we have examined this issue based on the paradigm of judicial ijtihad. The method is descriptive-analytical and in the field of jurisprudential and legal ideas and thougths. For this discussion, first the validity of the knowledge of the judge in jurisprudence and law has been discussed and then the position and role of studying evidence in the knowledge of the judge from the perspective of jurisprudence and law has been examined. The result is the permission and obligation of the judge to study the evidence based on the paradigm of judicial ijtihad, which requires a change in the way judges are educated and the use of new methods of experimental sciences in detecting crime and achieving reality.
Seyed Jafar Kazempour
Abstract
Asymmetryintheallocationofinformation, togetherwithpersonalandmarketconditions, mayleadtoaninequalityofbargainingpowerbetweencontractingparties. Inotherwords, inthecontextofcontractformation, onepartymayenjoyasuperiorbargainingpositionontheother, whichmaybeexploitedintheformofunfaircontractualtermsandmisleadingconduct. ...
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Asymmetryintheallocationofinformation, togetherwithpersonalandmarketconditions, mayleadtoaninequalityofbargainingpowerbetweencontractingparties. Inotherwords, inthecontextofcontractformation, onepartymayenjoyasuperiorbargainingpositionontheother, whichmaybeexploitedintheformofunfaircontractualtermsandmisleadingconduct. Differentlegalregimeshavedevelopedtheirownremediestoprotecttheweakercontractualparty, moregenerallyconsumers, insuchscenarios. TheaimofthispaperistoconfrontU.S. andItalianlegalrules, intermsofeffectivenessandefficacyinaccomplishingthisgoal.
Criminal Law
Omid Rostami Ghazani; Mohsen Rahmani Fard
Abstract
Given the importance of the offence of smuggling of goods and currency, the legislature has taken a strictly differential approach to this offence, but in some cases, the legislature has taken a more differential approach to some instances of this offence. Organized smuggling of goods and currency is ...
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Given the importance of the offence of smuggling of goods and currency, the legislature has taken a strictly differential approach to this offence, but in some cases, the legislature has taken a more differential approach to some instances of this offence. Organized smuggling of goods and currency is one of them. With a descriptive and analytical approach, this article seeks to identify the concept of organized smuggling and then the measures taken by the legislature to combat it and the challenges in front. In the Law of Combat Against Smuggling of Goods and Currency, for the first time, the legislator introduced the concept of organized smuggling of goods and currency to the Iranian legal literature and, with the aim of a strict response, envisaged differential substantive and formal measures, such as: Absolute criminalization of this behavior, intensification of punishment of organized members and leaders of the organized group, the anticipation of jurisdiction for the Revolutionary Court, identification of special discoverer organizations and provision of special powers and duties for them. Despite the large volume of smuggling in the country for reasons such as the narrow interpretation of the offence of smuggling of goods and currency from the Supreme Court, the lack of familiarity with the characteristics and criteria for detecting organized smuggling and the haste of attending authorities of smuggling of goods and currency, in practice, many detected smuggling cases are considered normally.
Private Law
azim kochaki pahne kolahi; seyed Hekmatallah Askari; Mohammad Hussein ansari haghighi
Abstract
Excessive legislative recourse to harsh punishments, including long prison terms and executions, is clearly seen in law. In order to find social and legal needs, mankind usually achieve their goals with the help of legal actions. In terms of the diversity of these needs, a variety of legal practices ...
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Excessive legislative recourse to harsh punishments, including long prison terms and executions, is clearly seen in law. In order to find social and legal needs, mankind usually achieve their goals with the help of legal actions. In terms of the diversity of these needs, a variety of legal practices have emerged. One of the characteristics of this diversity is the suspension of legal acts. Meanwhile “Intention” holds an important role in Law and legal actions are interpreted by intention. Our will is the only creator of legal acts. Therefore, there is no other way to understand the suspension of the will than to analyze its nature. Current views have sought the position of the suspension of the will in the creation and origin. New and different theories are presented that have taken steps to critique past theories. It is clear that in this way, the suitable analysis to be accepted is the one that is applicable in all aspects and types of legal actions and is more compatible with practical practice and the real will of the creator. In this study, the suspension will be examined with this view. For this purpose, the originality of jurisprudence and its rules must be emphasized. So, one should not turn to unrelated approaches of other sciences that are not compatible with the subjects of jurisprudence in order to understand the nature of law. From this perspective, special attention is paid to recognizing the nature of the obligation arising from the expression of the will, as a method of correctly understanding the nature of the suspension.
Criminal Law
Hamidreza DaneshNari; Mahdieh Maali
Abstract
Religion is a collection of practical and moral beliefs and orders that are set for the guidance and advancement of humans. Due to the fact that adherence to religious teachings leads to the prevention of sin, experts believe that religion has a preventive function in social fields and in forms such ...
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Religion is a collection of practical and moral beliefs and orders that are set for the guidance and advancement of humans. Due to the fact that adherence to religious teachings leads to the prevention of sin, experts believe that religion has a preventive function in social fields and in forms such as crime and deviance. Although the relationship between religion and crime is one of the most challenging issues in criminology, criminological findings have often emphasized the preventive role of religion. However, religious-historical cuts show that in some cases, eclectic interpretations of religion lead to crime. Thus, this research aims to describe, interpret and explain the thoughts of criminals with religious eclecticism by using Fairclough's discourse analysis method. The findings of this research show that eclectic criminals, emphasizing divine duty, ideological traditionalism, holy jihad, and ideological pressure, on the one hand, seek to create Sharia discourse, and on the other hand, reproduce Sharia-based domination relations. However, as a final assessment, it should be said that eclectic criminals commit crimes by misunderstanding religion and misunderstanding religious teachings. Therefore, in these cases, the crime-causing religious ideology is the result of religious epistemological eclecticism, and this cannot negate the positive function of religion in crime prevention.
Criminal Law
soodabeh Rezvani; Maryam Ghanizade
Abstract
Violence against women is an ancient and rather widespread phenomenon in all societies. More than the high rate of different sorts of physical, mental, sexual and economic violence against women, the crucial issues which demand women's support are the black figure of violence, the necessity of family ...
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Violence against women is an ancient and rather widespread phenomenon in all societies. More than the high rate of different sorts of physical, mental, sexual and economic violence against women, the crucial issues which demand women's support are the black figure of violence, the necessity of family member's support and violated women's treatment in order to prevent its repetition. Nowadays, regardless of the need or no need for social-based intervention, various attempts have been made to protect women at the risk of domestic violence or violated ones, by governmental organizations and NGOs. Designing "safe house" is a sample for protection. The fundamental role of safe houses in the protection of these women by presenting long and short- terms supports has not already been under the spotlight of scholars. Hence, the authors in this paper firstly have discussed the background and the features of safe houses in the countries such as Canada, USA, etc. In the second step, different responsible people in the governmental and non-governmental safe houses in the city of Tehran have been interviewed and their safety instructions are analyzed. The third step is to consider the supportive characteristics of these houses and their challenges such as the lack of physical space and the professional staff, low budget, etc. The findings emphasize the importance of safe houses in Iran, enhancing their situation by means of inclusive education, public awareness and all parts of the society's supports to present qualified programs in legal, psychological, medical, etc. aspects.
Criminal Law
majid sadeghnejad naeiny; Sakineh Khanalipoor
Abstract
One of the steps in the completing of criminal behavior which is response with criminal sanction is attempting. Attempting which is the closest stage to crime is defined as a stage which if there is no obstacle, the crime will end. Response to this behavior is done by various ways. The legislature In ...
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One of the steps in the completing of criminal behavior which is response with criminal sanction is attempting. Attempting which is the closest stage to crime is defined as a stage which if there is no obstacle, the crime will end. Response to this behavior is done by various ways. The legislature In the Islamic Penal Code 2013 in spite of later codes has tried to regulate the punishment of it to achieve a consistency in verdicts. Irrespective of this positive approach, sentencing in Attempting in Crime with Multiple and Discretionary Penalties are challengeable and bring about difficulties for judges. This research whit Descriptive-analytical method has implied the legislation and judicial problems of sentencing in Attempting and tried to answer to this question that how is the sentencing in Attempting in Crime with Multiple and Discretionary Penalties. In this regard, there are several ideas which all of them concentrate on a special basis. These ideas are discretion of judge approach, the Criterion the most severe punishment and Criterion the mildest punishment. Findings of this study show that according to interpretive principles and focused on current ideas, about every crime which punishment is Discretionary, the judge has this discretion in attempting too. However, for avoiding different verdicts, the nature of committed crimes and criminal policy about them must be considered.
Private Law
saeed habiba; zahra shooshtari
Abstract
Obstacles and objections are likely to arise at different stages of the arbitration process of disputes, particularly from the loser party. Defenses such as “encounter an agreement or arbitration clause with public order” or “basically not being arbitrable under the governing laws” ...
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Obstacles and objections are likely to arise at different stages of the arbitration process of disputes, particularly from the loser party. Defenses such as “encounter an agreement or arbitration clause with public order” or “basically not being arbitrable under the governing laws” are used as the ways to escape from being defeated. Given the ambiguity of the concepts of public order and arbitrability, especially in intellectual property law, and the differing views of other countries on these issues, we sought to examine what is the relationship between the concept of public order and arbitrability in the intellectual property disputes referred to arbitration. The result was that there was a split. Some have supported the theory of conformity of public order and inarbitrability. In contrast, other writers have arguments about the fundamental difference between the two.
ghasem mohammadi; Morteza jamali
Abstract
One of the main goals of any legal system is to regulate the social life of individuals and legal persons and, at the same time, to keep pace with the ever-changing developments of modern life. The realization of such a function, which on one hand requires stability in legal provisions and situations ...
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One of the main goals of any legal system is to regulate the social life of individuals and legal persons and, at the same time, to keep pace with the ever-changing developments of modern life. The realization of such a function, which on one hand requires stability in legal provisions and situations (as the predictability of the rights and duties of the subject of any legal system) and on the other hand, depends on keeping pace with new needs. It depends on the diversity of resources of each legal system. Examination of these sources indicates that the general legal principles have the greatest capacity to implement these two basic objectives. In fact, if the written law - as from the point of view of the positivists - is the only source of traditional law and bears all that is expected from law alone, the emergence of new legal branches and trends will increase legal ambiguities, contradictions and gaps more than The past revealed the necessity of paying attention to the general legal principles as a source of dynamism, which did not undermine the stability of the legal system and even seemed to be the basis of this stability. Therefore, the present study considers this neglected source in our country's law as a factor for the dynamics of law, while maintaining its strength and stability. In other words, cohesion and dynamics of the legal system can be realized in the approach of the theory of legal principles. The research method has been library with the study of Iranian judicial procedure.
Hamed Rahmanian
Hasan Mohseni
Abstract
Today Conflict Resolution Counsel (CRC) which was aimed to achieve conciliation between people, pursuing conciliation and dispute settlement among private and public nongovernmental identities under supervision of Judiciary and this matter caused to become a first degree of jurisdiction by its relative ...
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Today Conflict Resolution Counsel (CRC) which was aimed to achieve conciliation between people, pursuing conciliation and dispute settlement among private and public nongovernmental identities under supervision of Judiciary and this matter caused to become a first degree of jurisdiction by its relative competence. This situation that required to resolving the vagueness of its dispute settlement procedure has not concerned in 2008 act about CRC and caused some difficulties on the possibility or non-possibility of attack on its or public tribunal judgments which later is rendered after appeal such as revision and tired persons apposition. This is the subject of this paper.
Private Law
Mahdi Hasanzadeh
Abstract
The Code of Civil Procedure does not specify whether a verdict challenged by a third party is final or whether a non-final verdict can be challenged by a third party. In this regard, different and reciprocal views and analyzes are presented. The statement of Article 422 of the Code of Civil Procedure ...
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The Code of Civil Procedure does not specify whether a verdict challenged by a third party is final or whether a non-final verdict can be challenged by a third party. In this regard, different and reciprocal views and analyzes are presented. The statement of Article 422 of the Code of Civil Procedure regarding the objection of a third party, before the execution of the sentence and after it, is vague and debatable and has several problems. Examining the issue shows that considering various aspects, it is preferable not to consider the non-final verdict as objectionable to a third party and to consider the third party objection as specific to the final judgment. Article 422 of the Code of Civil Procedure should also be taken to mean that if a long period of time has elapsed since the execution of the sentence, in such a way as to indicate that the third party, if he had a right, waived it, after that, the third party objection will not be accepted unless it proves otherwise.
rashid ghadiri bahram abadi
Abstract
One of the most fundamental philosophical issues, which is examined in political philosophy and philosophy of law, is confrontation of right and expediency. One side of this confrontation are people and their rights who expect the recognition of minimum fundamental rights, like the right to a fair trial, ...
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One of the most fundamental philosophical issues, which is examined in political philosophy and philosophy of law, is confrontation of right and expediency. One side of this confrontation are people and their rights who expect the recognition of minimum fundamental rights, like the right to a fair trial, which belongs them under the humans dignity and personality. On the other side, society by the aid of its representatives, while trying to produce minimum resources for people and securing their welfare, has also a glance to its maintainance and continuance, by complying with some interests. This confrontation between humans rights and community interests, arrives its summit in terrorist offences and this, forms the most important philosophical base of differential criminal proceeding in terrorist offences. On one hand, suspects of terrorist activities want a fair trial as an undeniable right for human kind and on the other hand, political and judicial authorities seek to retain security of society, and see suspending and ignoring terrorist suspects’ rights, as one of resorts for achieving this aim. They regard suspension and ignorance of this group’s rights, as securing security. After explanation of this confrontation and its quality in terrorist offences, in this essay, is tried to produce logical resorts for its resolution.
Mehdi Abasi Sarmadi; Seyyed Salman seyedi
Abstract
Non-contractual obligations, along with contractual obligations, form a large part of the legal obligations and, in aspect of conflict of laws, constitute a conflict resolution rule. The conflict of laws and the determination of the law governing non-contractual obligation arise when one or more foreign ...
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Non-contractual obligations, along with contractual obligations, form a large part of the legal obligations and, in aspect of conflict of laws, constitute a conflict resolution rule. The conflict of laws and the determination of the law governing non-contractual obligation arise when one or more foreign elements interfere. The most recent initiative in European legislation on conflicts of laws in non-contractual obligations was passed in 2007 which is known as the Rome II. In these regulations, law of the place of the damage is accepted as the general rule of law applicable to non-contractual obligations. Therefore, the Iranian judge faces a big problem in determining the applicable law, because Iranian legal system has not any rule in regard to the non-contractual obligations. In this case, some believe in the applicability of the law of the place of the incident. The other view is that, because of the lack of an explicit statute, the applicable law is the law of the court seat. In the Iranian law, we believe that the law of the place of the incident can be accepted as the applicable law. As well as this point, we will consider the regulations of the Rome II, as the first international document related to the non-contractual obligations.
Asadollah Yavari; Mohammadghasem Tangestani
Abstract
Along with concentrating on enhancing Independence of judges and judiciary from executive power, Importance and necessity of judicial accountability (both judges and judiciary) have been concentrated in many studies. Accountability of judiciary as an institution is related to managerial level of this ...
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Along with concentrating on enhancing Independence of judges and judiciary from executive power, Importance and necessity of judicial accountability (both judges and judiciary) have been concentrated in many studies. Accountability of judiciary as an institution is related to managerial level of this branch and performance of its authorities in administering of it and executing relevant laws. Here, Judiciary is seen as an organization has some of the state responsibilities. With attention to importance of maintaining judicial independence, mechanisms of judicial accountability have been concentrated. In this essay, we illustrate the concept of judicial independence and accountability, mechanisms of accountability of judiciary in comparative law and legal situation of judicial independence and accountability in Iran.
Jamshid Gholamloo
Abstract
The criminal justice system detects crimes and convicts the defendants by gathering evidence and holding a trial for controlling the crime. It is generally assumed that the convicted persons are factual criminals. However, some convicted persons are innocent. Main causes for wrongful conviction of the ...
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The criminal justice system detects crimes and convicts the defendants by gathering evidence and holding a trial for controlling the crime. It is generally assumed that the convicted persons are factual criminals. However, some convicted persons are innocent. Main causes for wrongful conviction of the innocent are related to numerous and consistent errors and misconducts of police and judicial actors (prosecutors, police, investigators, and judges). Given the prominent features of drug crime's evidences - whether in law or in practice - are more likely to occur error and convict the innocent person than other crimes. In this qualitative study and by using case study method (29 samples) the prevailing factors that lead to miscarriages of justice (wrongful conviction and wrong arrest) in drug crimes were analyzed. According to the research findings, the main evidence of drug crimes for prosecuting and convicting is the detection of drug in possession of suspect; If the drug is discovered in someone's possession, it will be very difficult to prove innocence.The importance of analyzing the wrongful conviction in drug crimes is increasing with a significant number of death penalty in this crimes. Even if the number of wrongful conviction in drug crimes is very low, the legitimacy for the death penalty in these crimes will be more questionable than ever. Determining death penalty in the crimes that don’t even have a religious obligation for punishment and its specific type (execution), more and more undermine the legitimacy of this punishment. One of the main consequences of existing wrongful conviction in the criminal justice system is the abolition of irrecoverable punishments such as death penalty.
Hossein Gholami; Yusef Babaei
Abstract
McDonaldization is an official process in which the principles of fast food restaurants are exercised. The McDonaldization of various social institutions has succeeded because it provides advantages over other, usually older, methods of doing business. It has made McDonaldized social institutions bureaucratic ...
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McDonaldization is an official process in which the principles of fast food restaurants are exercised. The McDonaldization of various social institutions has succeeded because it provides advantages over other, usually older, methods of doing business. It has made McDonaldized social institutions bureaucratic and rational in a Weberian sense and, thus, more efficient, calculable, predictable, and controlling over people (often by nonhuman technologies). The principal problem with McDonaldized institutions, and another characteristic of the process, is irrationality or, as Ritzer calls it, the “irrationality of rationality.” A primary purpose of this essay is to expose some of the irrationalities of “McJustice” and to suggest some possible responses to them.
Homayoun Mafi; Zeynab Fallah Tafti
Abstract
Economic growth and development of any country is indebted to the efficient financing system that helps investors to transfer funds to the economic enterprises and projects as well. Financing system is formed in money markets and capital markets and it needs suitable financial intermediates to approach ...
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Economic growth and development of any country is indebted to the efficient financing system that helps investors to transfer funds to the economic enterprises and projects as well. Financing system is formed in money markets and capital markets and it needs suitable financial intermediates to approach considered goals. Financing companies are some of the new financial intermediates in the Iran capital markets, that the governing legal system of it is not determined. In this article, while understanding the structure of the finance companies, we analyze the governing regulations and related challenges. At the end, we suggest the suitable structure that is compatible with the economic policies, in accordance with the development of these types of financial institutions in some other countries.
Javad Salehi; Nariman Fakheri; Hossein Al Kajbaf; Mojtaba Babaei
Abstract
Balancing the rights of the accused and Intermediary on the International Criminal Court is one of the serious challenges of Thomas lubanga Dyilo. The primitive branch prefers the accused's rights on Intermediary's right and even pays its heavy price by staying procedure until the Prosecutor also prefer ...
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Balancing the rights of the accused and Intermediary on the International Criminal Court is one of the serious challenges of Thomas lubanga Dyilo. The primitive branch prefers the accused's rights on Intermediary's right and even pays its heavy price by staying procedure until the Prosecutor also prefer the accused's right over other their tasks. But Prosecutor feel this precedent for Intermediary's security and the possibility of future collaboration stopping in risky International Criminal Court cases and to observe the requirements of a fair trial about accused without the impact. The Appeals Branch is also without evaluating the accused's or Intermediary right's priority over another, only criticize hardliner of primitive branch in staying proceedings and disobedience of prosecutor from the Court's orders and ruled to continue the procedure. Hence the Appeals Branch with his silence, does not offer any vision in giving priority to the rights of the accused on the Intermediary or balancing in other trials in the International Criminal Court.
Private Law
Mina Hosseini; Behnam Ghafari
Abstract
One of the issues that have received less attention in competition litigation cases in our legal system is the litigation costs problem. The Competition Council has several tasks under "the Act of the execution of the General Policies of Article 44 of the Constitution"(2007), which requires a great deal ...
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One of the issues that have received less attention in competition litigation cases in our legal system is the litigation costs problem. The Competition Council has several tasks under "the Act of the execution of the General Policies of Article 44 of the Constitution"(2007), which requires a great deal of expense to perform optimally. At present, these costs funded by the government. Although in the current state of the economy with considering other countries' approaches to financing these costs, it is better to have at least some of the funding required by the council from other sources (such as receiving fees from private applicants).This study investigates the experiences of the US, Canada, Japan, Turkey, Denmark, the UK, Swiss, Ireland, South Africa, and Hong Kong legal systems in providing competition litigation costs.This article, in an analytical way, examines the justification for collecting litigation costs. Using the experience of other legal systems, it proposes a method (along with suggesting some articles) for allocation of litigation costs in the Iranian competition law and merger control regime to introduce a basis for reforming the law and optimizing Iran's competition system.
Alireza Milani
Criminal Law
Hadi Rostami; Seyed Poria Mousavi
Abstract
Achievements of different knowledge such as criminology and penology and also the use of answering experiences to criminals, show that equivalent giving response and answering to crimes perpetrators, were inefficient and that lead to stabilizing crimes of the juvenile offender. In the meantime, documents ...
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Achievements of different knowledge such as criminology and penology and also the use of answering experiences to criminals, show that equivalent giving response and answering to crimes perpetrators, were inefficient and that lead to stabilizing crimes of the juvenile offender. In the meantime, documents and international regulations of human rights also with an emphasis on different components are still in search of blockage of the cycle of becoming a habit of delinquent of this category of citizens. The best interests of a juvenile offender, that as a strategic and fundamental principle was important for system of the criminal policy of united nations, and considered as an index so that internal criminal policymakers of countries by that can make a decision about choosing methods for removal and stop of the relationship of children and teens with a criminal process forever and can be provided as a goal. By these changes in 2013 and following paragraph 1 of article 3 of the convention on the rights of the children, the criminal justice system of Iran tried to respect this principle and, in the light of readings of it, select a cohesive policy and that to what extent it was successful, is a subject that this writing will consider it. Because it seems that on one hand legislator had tried to respect the bests interests of juvenile in punishable crimes and on the other hand, try to respect laws (limits and retaliation) that in this way had faced significant duality.
hamid Reza Amani
