Amir Khajehzadeh; Seyed Rohollah Hoseini Mighan
Abstract
Marriage creates different rights for woman, including the right to receive dowry, alimony, etc. But in some cases it is possible that the man be unable to pay it due to some new issues that have been arisen, for example insolvency. So it can be said that receiving dowry and alimony is the woman's right, ...
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Marriage creates different rights for woman, including the right to receive dowry, alimony, etc. But in some cases it is possible that the man be unable to pay it due to some new issues that have been arisen, for example insolvency. So it can be said that receiving dowry and alimony is the woman's right, but law has provided some solutions for the woman in the case of inability to pay each of them. For example, in the case of failure to pay the dowry she has the right to do the particular submission and even she can split the dowry and do not comply the husband until receiving the last installment (as it has been mentioned in the judicial precedent). The supreme court by the judicial precedent number 708 dated 22.5.1387 announced that the dowry split do not conflict the right of judicial precedent and consequently sentencing the 718 dating to 13.2.1390 expanded the realm of lien to the absolute couple duties. Although these views seem to finish the conflicts, but correctness, effects, and the legal consequences of applying it needs to be analyzed and reviewed. This study which have been done by library and analytical approach analyzes the lien wife in the judicial procedure and beside analyzing the principle number 1058 of the civil law, it has been found that if both the man and woman have applied the lien, what should be done, and also it has been clarified that if a part of the dowry was not paid the woman has the lien until the time that the rest is paid and in the case of insolvency this is not set aside.
Hossein Safaee; Mohsen Pourabdollah
Abstract
Contract of sale is the most important possessory contract which refers to the property transfer of an object of sale from seller to buyer. Third party claim regarding the ownership of an object of sale will undermine the effectiveness of the aforementioned rights. Regulations governing the Iranian law ...
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Contract of sale is the most important possessory contract which refers to the property transfer of an object of sale from seller to buyer. Third party claim regarding the ownership of an object of sale will undermine the effectiveness of the aforementioned rights. Regulations governing the Iranian law concerning meddle deals and defects warrantor implies that such claim will result in total cancellation of the contract of sale and the status will return to what was previously (i.e prior to conclusion of the agreement). Accordingly, it is essential to secure entire rights of the claim asserted by third party (owner), refund the original property (object of sale) to the party that possess it, and compensate for all the losses. The original buyer, however, can only request the price previously paid, expenses of judicial proceedings and the like, albeit with much less buying power and in case of ignorance that object of sale belonged to someone else. In fact, the current regulations are based on a supportive approach to the benefit of “owner”, so that rights of the original buyer are considered submissive to quality of the rights demanded by the owner; because nullification of the agreement between the dealers will hamper contractual claims of the seller against the buyer. In other words, the buyer can merely pursue the price previously paid and regain the former status. Therefore, the condition of “nullité partielle” of contract in such cases is similarly recognized in the Egyptian law that actually originates from the French version of law, based on which the contractual relationship between buyer and seller is distinguished from their relationship with the owner and its validity remains despite the nullity regarding the owner. Partial nullity (nullité partielle) can promote the supportive approach in benefit of the original bona fide buyer and become more compatible with the principles of justice and fairness.
Mohammadreza Mohammadi
Abstract
According to Article 12 of Check Drawing Act, drawer of check can pay out funds of check and delayed payment penalty to the holder of check or provides causes of payment of them, in the middle of criminal procedure, even after issuing definitive judgment, and thereby causes to cease the criminal procedure ...
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According to Article 12 of Check Drawing Act, drawer of check can pay out funds of check and delayed payment penalty to the holder of check or provides causes of payment of them, in the middle of criminal procedure, even after issuing definitive judgment, and thereby causes to cease the criminal procedure or enforcement of judgment. The Article makes this image that to cease criminal procedure or enforcement of judgment, the drawer must pay the delayed payment penalty with the funds of check whether the delayed payment penalty was claimed, according to rules of Civil Procedure Act, by holder of check or not. But on the base of civil nature of delayed payment penalty and the necessity of demanding of it, the Article 12 of Check Drawing Act must be applied when the holder of check has demanded the delayed payment penalty whit funds of check according to circumstances required by law. Therefore, in the case that the holder of check has not demanded delayed payment penalty, the criminal procedure will be stopped if the drawer of check pays out only the funds of check to holder, also if the funds is paid after issuing final judgment, the enforcement of the judgment will be stopped.
Mohammad Sardouei Nasab; Seyed Jafar Kazempour
Abstract
In modern law, the unconscionability of contracts has become a basis for vast intervention of government in contracts law. Upon this basis, some protective rules were legislated for protection of the consumers’ rights and preventing misuse of stronger economic situations and anti-competitive ...
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In modern law, the unconscionability of contracts has become a basis for vast intervention of government in contracts law. Upon this basis, some protective rules were legislated for protection of the consumers’ rights and preventing misuse of stronger economic situations and anti-competitive actions. Although, the elements of contractual unconscionability are not as clear as it necessitates. These legal systems have pursued different approaches. The American Law has presented the general theory of the unconscionability of contracts. In some legal systems of European countries, the applicable and operative system has a special place in which precise and particular examples of the unconscionable contracts are considered. On the other hand, the Iranian law has not dealt with the elements of this case. Thus, studying various rules, one can merely achieve few of these examples. It is required for the Iranian legislator to take a certain position for stabilizing the concept of contractual unconscionability, determining the obvious regulations, elements and examples thereof.
Ahmad Rafiei; Ali Yazdanshenas
Abstract
The decree of state exemption from the payment of court costs in Iranian statute law has been accompanied with the abundant up and down. Although such an exemption had been specified in the civil procedural code, 1939, it has not been indicated in the civil procedural code of the public and revolutionary ...
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The decree of state exemption from the payment of court costs in Iranian statute law has been accompanied with the abundant up and down. Although such an exemption had been specified in the civil procedural code, 1939, it has not been indicated in the civil procedural code of the public and revolutionary courts in civil affairs, 2000. In spite of passing the judicial precedent by General Board of the Supreme Court and prescription of the duty of the government in payment of court costs, the existence of some special laws indicating the exemption of some institutions and organizations from payment of these costs and insertion of uncertain words in the Budget Act, 2011 specifying the exemption of “ Lawsuits on Preservation of Public Treasury’ from the payment of the said costs, has been increased to these ambiguities, the subject which is required the adoption of the strict position by legislator.
Ehsan Zarrokh
Abstract
Due to the growing development of technology in recent times, great changes have occurred in man’s life, having positive and negative aspects; among the most important achievements is the telecommunicative progress which has brought human from telegraph and first telephones to internet phones. ...
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Due to the growing development of technology in recent times, great changes have occurred in man’s life, having positive and negative aspects; among the most important achievements is the telecommunicative progress which has brought human from telegraph and first telephones to internet phones. Such progress has caused commitment of many crimes, including communicative ones, which can be divided into pure telecommunicative and telecommunication-related crimes; each of these classes includes a wide spectrum of crimes. The first category constitutes of crimes committed with telecommunicative tools and crimes against telecommunicative systems; while the latter consists traditional crimes which are transformed by telecommunicative systems. In the Iranian legal system, despite the attempts to cover the instances of such crimes, a lot of partial and limited regulations and flawed criminalization have been made; a fact that necessitates a change in legislator’s approach and carrying out structural amendments in this field.
Godarz Eftekhar Jahromi; Ebrahim Eslami
Abstract
With the advent and development of information and communication technology, human life has undergone fundamental changes. Some human behaviors which have been traditionally criminalized in every society, today take place in the form of criminal ideas in a language specific to the computer systems or ...
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With the advent and development of information and communication technology, human life has undergone fundamental changes. Some human behaviors which have been traditionally criminalized in every society, today take place in the form of criminal ideas in a language specific to the computer systems or through online network. Thus there is a new world called cyberspace in which traditional boundaries have become meaningless. Perhaps some crimes against persons are planned and committed far from the residence of the victims or it is possible that ones’ usual means of everyday life are used as criminal tool against him/her or others. Today, cyber terrorism as an international crime has become the subject matter of controversies among international lawyers and the main question in this context is determining the courts’ jurisdiction which in turn poses another question as to application of procedural law rules in this respect. Traditional rules and principles regarding jurisdiction have been challenged by criminal acts which are committed through cyberspace. This paper seeks to provide an appropriate answer to the question that in the case of transnational cyber-crimes, how and to what extent courts of a given State may claim and exercise jurisdiction and on the other hand in the case of conflict of jurisdiction which rule or rules should apply to resolve such a conflict. Providing an appropriate answer to the question requires dwelling on international standards governing conflict of jurisdictions and studying practices of those states which are pioneers in combat against cyber-crimes.
Ali akbar Izadifard; Mehdi Fallah
Abstract
About the nature, meaning and basis of civil Arsh, both in jurisprudence and Iranian law, the debate has broken out, so that some authors considered Arsh as a non-contractual responsibility that difference between value of healthy goods and defective one, only in market price, should be the criteria ...
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About the nature, meaning and basis of civil Arsh, both in jurisprudence and Iranian law, the debate has broken out, so that some authors considered Arsh as a non-contractual responsibility that difference between value of healthy goods and defective one, only in market price, should be the criteria to calculate amount of Arsh. Some others criticized these comments and believe in this idea that Arsh is compensations and damages that the buyer, due to defect of goods, sustains. In contrast, one group has considered Arsh as reciprocal responsibility that must be paid of the same price. About Arsh it can be said that neither it is non-fungible liability nor reciprocal responsibility and nor reparation and compensation, but it is a way to implement and perform commitments agreed in the contract. When the parties proceed to contract based on the balance of considerations value, if this obligation, for some reasons such as being the object of contract defective, is violated, so this violated commitment should be implemented again. Arsh makes agreed obligation be enforced, in relation to balancing between the value of goods and its consideration. So mutual agreement or compromise is the basis of Arsh, As if contract provisions, and parties commitment is based on the principle of equal value of considerations and seller's responsibility to pay Arsh, is contractual
Fatemeh Ghanad; Masoud Akbari
Abstract
Accepting criminal responsibility for legal persons is a matter of consideration in most legal systems and is not incorporated in enactments. There is some barriers concerning to this matter which relate to traditional goals of criminology and fundamental principles of criminal law. ...
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Accepting criminal responsibility for legal persons is a matter of consideration in most legal systems and is not incorporated in enactments. There is some barriers concerning to this matter which relate to traditional goals of criminology and fundamental principles of criminal law. Legal persons have exclusionary and limited legal capacity and they continue their activities in order to support the rights of the creditors. There is a fundamental question here in relation to the possibility of imposing punishment to them in settlement period. There is no answer in behalf of legislator, so considering restrict interpretation giving answer to this question is a serious challenge. All these matters will be examined in this article.
Hassan Poorbafrani; Rauf Rahimi
Abstract
This article compares Iranian laws about torture with the contents of United Nations Convention against Torture. The common basis for comparison is that both laws of Iran and Convention against Torture identify torture as inhumane practice and contrary to human dignity. But must be acknowledged that ...
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This article compares Iranian laws about torture with the contents of United Nations Convention against Torture. The common basis for comparison is that both laws of Iran and Convention against Torture identify torture as inhumane practice and contrary to human dignity. But must be acknowledged that Iranian laws about torture are narrower than Convention and only have discussed physical and mental torture of direct and did not mention indirect physical and mental torture. On the other hand there are some punishments like retaliation and stoning in Iranian laws that anti-torture committee has described them as torture. But these differences do not mean that there is no similarity between Convention and Iranian Laws. This comparison not only helps recognizing legal obstacles toward the accession of Iran to the United Nation Convention against Torture but also has suggestions to remove these obstacles too.
Mohammad saleh avalidi; Ali Najafi Tavana; Mehdi Ahmadi Mosavi
Abstract
Taxes are one of the most important sources of government revenue, Quick receipt, low cost and stability of such incomes cause attracting many countries to such outcomes (as main and fixed outcome). Iran’s tax system also in modern times taken effective steps to implement this policy and convert ...
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Taxes are one of the most important sources of government revenue, Quick receipt, low cost and stability of such incomes cause attracting many countries to such outcomes (as main and fixed outcome). Iran’s tax system also in modern times taken effective steps to implement this policy and convert tax as one of the most important source of income and limiting the role of oil as the most important source of government revenue. Despite effective efforts in this regard, the tax system face several injuries and challenges that must not only identify damages but also pay attention to related factors. The findings of this study shows that: Legal disorder is one of the most important and first damage on the tax system. Ambiguity, consistency and inflation of legal down resources (tax directive) in addition to disappropriate and illogical policy. including legal damages considered at Iranian tax system. On the other hand, lack of compliance in tax payers or incomplete and inappropriate compliance of them are another available damages and challenges of iran’s tax system. in creating such damages, several factors are involved: lack of attention of legislator and policy maker’s need to develop a coherent law and remove the legal objections, ineffective and inefficient penal policy, lack of appropriate infrastructure in order to prevent tax scan (in format of lack of tax compliance), ravage of tax culture and existence of economical challenges. We consider this items in the study.
Mohammad Ali Khorsandian; Maryam Fallahdokht
Abstract
Increasing resort of people to the banks make them to access classified information of the customers such as financial status, balance of the account and personal information. In order to gain the trust of customers and prevent Personal and commercial losses and economic abuse, banks make these data ...
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Increasing resort of people to the banks make them to access classified information of the customers such as financial status, balance of the account and personal information. In order to gain the trust of customers and prevent Personal and commercial losses and economic abuse, banks make these data confidential and refused disclosure of them. Although the protection of banking secrets is an inevitable principle concerning social necessities such as confronting crimes like money laundering, terrorism financing, tax evasion and the need for financial transparency, it is appropriable in such areas. These exceptions, however, varies from country to country but we seen more common trends in all.
This paper shows the basis, sources, scopes and the effects of banking secrecy in Iranian law and note the necessities of legislation by that.
Jalal Tohidi; hosein Amirli
Abstract
Sentencing for cybercrimes as a formal and mandatory response is the most important way to deal with these crimes. Sentencing means judge discretion for selecting proper sentence for convicts of cybercrimes. Sentencing is applied in three states: change of legal punishment, imperfect execution of sentence ...
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Sentencing for cybercrimes as a formal and mandatory response is the most important way to deal with these crimes. Sentencing means judge discretion for selecting proper sentence for convicts of cybercrimes. Sentencing is applied in three states: change of legal punishment, imperfect execution of sentence and non-execution of sentence. At first glance, sentencing for cyber criminals is similar to other criminals but differential legal penalization leads to differential sentencing. Differential approach to sentencing for cybercrimes is based on contradiction relationship between cybercrime and cybercriminal. As much as cybercriminal deserve for easy sentencing for due to factors such as age, gender, location of offense and its circumstances, talents and high qualities, vice versa cybercrime deserves rough sentencing due to widespread damages, easy commit of multiplicity of crime, commit in different places, multiple challenges for cyber forensic and prosecution like anonymity. The importance of sentencing is depends on understanding the conflict between deserves of cybercriminal and concerns of cybercrime.
Fahad Parvin; Azim Akbari Rood Poshti
Abstract
Diversity of contractual matters has caused lots of controversies in private international law. The main legislation in Iranian law of contractsin this respect is section 968 of Civil Code. Most debates about this section are devoted to the matter beingcompulsory or complementary. In this article, with ...
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Diversity of contractual matters has caused lots of controversies in private international law. The main legislation in Iranian law of contractsin this respect is section 968 of Civil Code. Most debates about this section are devoted to the matter beingcompulsory or complementary. In this article, with a deep analysis of all respected dimensions, we conclude that, regarding section 10 of Civil Code, we need to take a different approach. This approach has a double base. Firstly, it is based upon the principle of the freedom of the contracts and secondly upon the fitness criterion. By fitness criterion, we prefer the law that has the best coherence and most bonds with the contract.
Heidar Piri; Seyed Ghasem Zamani
Abstract
International Law, by referring to the vital national and security interests has been used as a shield against legal’s, as an instrument to escape from legal obligations and as a justification for breaking up the treaties, therefore it limits the appliance of International Law Rules especially ...
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International Law, by referring to the vital national and security interests has been used as a shield against legal’s, as an instrument to escape from legal obligations and as a justification for breaking up the treaties, therefore it limits the appliance of International Law Rules especially International Humanitarian Law, yet claiming of the observance of International Law. This notion and other similar concepts, are considered as one of the main obstacles against development in universalizing International Law especially IHL, because It can cause intractable misuses by states as well as justifying anything by reffering to national interest. IHL norms bring a serious challenge to the governments holding the fundamental logic of sovereignty and national interests. According to primary precedence of human norms in international law, The vital national interests only in compliance with the international law rules and provide the ground for legitimate government functioning. Therefore, governments have always tried to explain and interpret the vital national interests in a way that results the least loss to the universal international values.
Mohammad Reza Vijeh
Behzad Razavi Fard; MohammadTaghi RobatJazy; Golsa Omrani
Abstract
Human ahievment in industry and technology has some pros and cons. One of these ahievements is social networks. They make it possible to come into contact with each other, share interests, be familiar with other cultures, convictions and religions, and make accessible a wide variety of information. But ...
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Human ahievment in industry and technology has some pros and cons. One of these ahievements is social networks. They make it possible to come into contact with each other, share interests, be familiar with other cultures, convictions and religions, and make accessible a wide variety of information. But beside aforementioned advantages, there may be some disadvantages including privacy invasion, put at risk the familial relations, disloyalty between couples, and sexual victimization. The sexual victimization refers to process of victimization in the course of information and communication technology development and utilization. This crime could be committed by sexual harassment, blackmail and pornography. The recognition of factors creating these harms in either social or familial level and in social networks is necessary in order to control the sexual harms and identify the victims so as to be protected. In this research, social prevention of sexual victimization is studied. This kind of prevention tends to improve economic, cultural and social circumstances that make the grounds of criminality. So the goal of social prevention is to suppress the external criminal factors. This is the case for example educational methods, employment, and help to start a family. On the other side there are supervisory means done in the situational prevention. Moreover, there are new management means including smart management software organizing cyberspace utilized by children and youth.
Abdolreza Asghari; Mehdi Salehi Moghadam
Abstract
Drinking alcohol is of offences which the holy Islamic law giver has laid down eighty slashes as legitimate hadd. This punishment was mentioned in article 165 of Islamic Penal Code of Iran (1370) and totally it stated drinking and eating alcohol. After codifying the Islamic Penal Code of Iran in 1392 ...
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Drinking alcohol is of offences which the holy Islamic law giver has laid down eighty slashes as legitimate hadd. This punishment was mentioned in article 165 of Islamic Penal Code of Iran (1370) and totally it stated drinking and eating alcohol. After codifying the Islamic Penal Code of Iran in 1392 , the legislature decided in art.165 to depart from the title" liquor Hadd-punishment" to the title" liquor consumption". Therefore, the liquor consumption in any way such as drinking, injection and smoking causes the legitimate punishment. The common aspect of these two titles is what reason making the criminalization of liquor which creates the legitimate hadd which has been discussed in fiqhi books (Islamic jurisprudence books). The following paper has examined the different ways for the consumption of intoxicating and alcoholic drinks. For this reason, different attitudes are expressed for the way of the consumption of alcohol or liquor and the attitude of the legislature for proving the legitimate had in any way is criticized and evaluted.
Shahab Jafari nedoshan
Abstract
Parallel Proceedings, which can be described in short as commencing arbitration and/or litigation regarding related disputes in different dispute settlement forums or mechanisms, most of the time in investment disputes, are caused by the myriads of dispute settlement forums and procedures stipulated ...
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Parallel Proceedings, which can be described in short as commencing arbitration and/or litigation regarding related disputes in different dispute settlement forums or mechanisms, most of the time in investment disputes, are caused by the myriads of dispute settlement forums and procedures stipulated in investment contracts and investment treaties. In spite of the corrosive consequences of the Parallel Proceedings, battling the deleterious effects of it, is not fully developed and yet needs complete attention of the disputing parties to the contractual methods, especially prior to the stage of arising an actual dispute. Arbitral tribunals have developed some principles and mechanisms to battle Parallel Proceedings, most of which require parties’ consideration or initiative to be fully functional. Battling parallel proceedings throughout the period of enforcement of the award involves so many difficulties which in turn show the significance of confronting it prior to the stage of the enforcement of the award
Abdolhossein Shiravi; Alireza Pouresmaeili
Abstract
Local Content Requirement is an obligation that guest countries impose it on foreign investors to use a certain proportion of locally made parts or components. This requirement affects trade and restricts or distorts it, so according to WTO regulations is inconsistent with non-discrimination principle ...
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Local Content Requirement is an obligation that guest countries impose it on foreign investors to use a certain proportion of locally made parts or components. This requirement affects trade and restricts or distorts it, so according to WTO regulations is inconsistent with non-discrimination principle and WTO members obliged to avoid from imposing local content on other member’s investors because the local content requirement distorts free trade and discriminate between local and imported goods.Local content requirement also applies in many Iranian regulations and is one the major requirements impose on foreign investors. This essay study local content requirement in Iranian Regulations and compare it with WTO Agreements especially TRIMs Agreements.
Jamal Sahebi Zahabi
Abstract
Afteraverdictisissued, ithassomeeffects; ithasexeptiorei judicate; andsometimesbecomesenforceable; claimpartiesuseitsdemonstratingpower. Sometimestheeffectsareconfinedtothepartiesinvolvedandothertimestheyarenot. Theresultofthecourt’sjudgment, asalegalentitywhichisobtainedfollowingspecialformalities, ...
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Afteraverdictisissued, ithassomeeffects; ithasexeptiorei judicate; andsometimesbecomesenforceable; claimpartiesuseitsdemonstratingpower. Sometimestheeffectsareconfinedtothepartiesinvolvedandothertimestheyarenot. Theresultofthecourt’sjudgment, asalegalentitywhichisobtainedfollowingspecialformalities, iscapableofbeingusedandreliedonagainstallcitizens. Forthecasesinwhichtheeffectsoftheverdictareconfinedtotheclaimparties, wecanspeakoftheprivityprinciple. Exceptfortheclaimparties, thereisnoprofitorloss.
Jalil Omidi
Seyed Mohammad Sadegh Tabatabaei; Abbas Kiyani
Abstract
The civil law for the short sale of constructed edifices, which can be seen in light of support in favor of the advance purchaser, was passed by the Islamic Legislative Council of the Islamic Republic of Iran in the month of Day 1389 (A.H.) and subsequently gained the approval of the Guardian Council. ...
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The civil law for the short sale of constructed edifices, which can be seen in light of support in favor of the advance purchaser, was passed by the Islamic Legislative Council of the Islamic Republic of Iran in the month of Day 1389 (A.H.) and subsequently gained the approval of the Guardian Council. From the very beginning the legal character of the legislation, especially with regard to its first constituent article, proved highly controversial. The present paper, aiming to clarify the legislative character of this law, scrutinizes these issues and in the course of disputing the necessity of the reception of the total amount due in concordant transaction, reaches the final conclusion that the law is harmonious and in accordance with such transaction, this being conditioned by the presupposition that the contract observe the first article of the legislative law and state in writing that the edifice under agreement be transferred into the possession of the purchaser either “from the beginning,” “during the course of construction” or “after the completion of the edifice.” In the first instance the transfer will be unconditionally complete; in the second instance the transfer will be in a state of conditional pending and in accordance with the number of installments; and in the final instance the transfer will be in a state of conditional pending completed after the payment of the final installment.
Ehsan Safian Esfahani; Seyed Mohammad Sadegh Tabatabaei
Abstract
Constructing roads and public parks are among duties of municipalities based on municipal law. In many cases, municipalities are forced to use properties, lands or rights of people on buildings and sources to complete developmental plans. Based on current laws, firstly, the municipality should obtain ...
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Constructing roads and public parks are among duties of municipalities based on municipal law. In many cases, municipalities are forced to use properties, lands or rights of people on buildings and sources to complete developmental plans. Based on current laws, firstly, the municipality should obtain the owner’s consent and then condemn the properties. If there is no agreement, the municipality has the authority to condemn the property based on article 8 of law of land and property condemnation and buying for public, civil and military purposes passed in 2006.
A question is raised here: what is the legal nature of such acquisitions? are the agreements between municipality and owners are subject to general rules of contracts especially free will and sovereignty or they should be categorized as exercise of power by the government ?
The purpose of the current study is to prove that the municipality condemnations are a kind of power exercise by the government and the government has the authority to condemn properties.
Sadegh Menati Nezhad
