Criminal Law
mehdi aghaee; nasrin mehra
Abstract
Country's chaos regarding car accidents, Justifies the necessity of growing attention and importance of preventive measures of these offences, and makes this issue known as a major concern. This also reveals the necessity of interactive (non-criminal) preventive measures with respect to traffic crimes ...
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Country's chaos regarding car accidents, Justifies the necessity of growing attention and importance of preventive measures of these offences, and makes this issue known as a major concern. This also reveals the necessity of interactive (non-criminal) preventive measures with respect to traffic crimes and violations. Situational prevention or situation oriented, as the most moderate, possessing the most widespread measures, is considered as an effective non-criminal prevention pattern and based on the statistics given by official organizations, it has a tremendous impact on the reduction of crimes and violation in different countries. In proportion to scientific and technological developments, different situational preventive measures have been updated, and due to their consistency, they can be applied in traffic violations and offences. On one hand, the analysis of suggested measures in the framework of situational prevention and on the other hand, statutory criminal policy pathology and some other practical plans linked with this kind of prevention of the offences and traffic violations are the main purposes of this article. In the sphere of Iran's statutory criminal policy "The law of compulsory insurance for damages inflicted to third parties arising from an accident of vehicles" and "The law of adjudication of traffic violations are the most important legal sources that their analysis shows that most of the components and enforcement measures either have not been predicted or their enforcement process have not been codified even in the form of by-laws, or they are far from the situational technics and criteria over them. Unfortunately, the legislature has taken situational prevention aspects into consideration only in few cases of its statutory criminal policy, although this matter is significant: the practical potentials of situational prevention has been restricted to nominal and brief dimensions. Besides, the guarantee of situational prevention approach in the society needs systematization of the variety of adopted situational measures.
Criminal Law
Ruhollah Akrami
Abstract
In regard to proving criminal cases, although each legal system has its own view over the validity of Confession, yet it has a special position in all legal system. Confession has an intrinsic value in different countries' regulations subject to the system of legal reasons, thus in some legal systems, ...
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In regard to proving criminal cases, although each legal system has its own view over the validity of Confession, yet it has a special position in all legal system. Confession has an intrinsic value in different countries' regulations subject to the system of legal reasons, thus in some legal systems, the judge is obliged to issue a judgment based solely on the confession for the absolute validity given to it by the legislator. Whereas in countries affected by the system of moral reasons, the confession itself is not valid and its value is as a means of assuring the judge of the event to which the confession has been made. In the present article, an attempt has been made to examine the validity of the confession in proving the case with a descriptive-analytical method. In this regard, it is examined whether a criminal judge can issue a sentence as soon as the accused confesses, and this validity remains until the judge is aware of its inaccuracy? Or that the sentence can be issued only on the basis of a confession when the judge is satisfied with it? And basically, this persuasion can be based on confession alone or does it need other supporting evidence? In order to answer these questions, while briefly studying the legal system of some Islamic countries, the issue has been specifically examined from the perspective of the Codified regulations, legal doctrine and judicial procedure of the Islamic Republic of Iran. The superficial conflict between the approach of the Islamic Penal Code and the Code of Criminal Procedure on this issue has added to the complexity of the issue, which makes it necessary to rely on interpretive methods to accept the relevant validity of the criminal confession.
Public Law
Baqer Ansari
Abstract
Individuals' access to the internet is one of the current debates at international and national levels from economic, cultural, social, political and legal perspectives. From a legal perspective, the main question is that: "is the access to the internet an individual right?" if so: "what is its content ...
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Individuals' access to the internet is one of the current debates at international and national levels from economic, cultural, social, political and legal perspectives. From a legal perspective, the main question is that: "is the access to the internet an individual right?" if so: "what is its content and how can it be protected and realised?" This article, based on the desk research method, by studying international and regional instruments and interpretations, national legislative administrative and judicial practices and legal scholars' viewpoints, has concluded that the existence of this right is known as the dominant view but, its content still remains disputable. Nevertheless, the right to connect to the Internet, the principle of neutrality, the right to anonymity, the right to use encryption technology and the right to secure and transparent Internet can be recognized as the main elements of this right. Also, this right is mainly formal and structural in nature. In other words, it's about the principle of Internet access, not the content that is exchanged as a result of access.
Public Law
Mohammad Hasanvand; mina akbari
Abstract
The high-standing status of the written law in Iran's legal system has been manifested as an obvious and unchangeable affair in the ideas of legal thinkers. However, in the field of administrative law, particularly the law of employment, causes such as politically affected legislative system and non-pursuit ...
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The high-standing status of the written law in Iran's legal system has been manifested as an obvious and unchangeable affair in the ideas of legal thinkers. However, in the field of administrative law, particularly the law of employment, causes such as politically affected legislative system and non-pursuit of scientific and specialized ideas as well as repeated alterations of administrative rules have triggered unstable, dispersive, contradictory and cumulative rules to appear in this field, leading to inefficiency of rules. Law has been weak to play its inherent role as a predictable, regulative and decisive source and has followed diversified procedures of administrative authorities and branches of the Administrative Court of Justice. Among the other things, judges of the Administrative Court of Justice as administrative justice for obligating their adjudication and resolution of cases, have this ability to deal with this inefficiency while acting as judge of the branch, and members of specialized bodies and public bodies. The present paper has aimed to prove the mentioned claim, firstly by describing and naming applications of such laws and secondly by analyzing rules and ideas of the Administrative Court of Justice. The inefficiency of the legislative system in this area and the issuance of judicial rulings in the Administrative Court of Justice have implicitly identified the customary role of judicial regulation for the Court of Administrative Justice and somewhat similar to the position of the Supreme Court in the common law system. It has also promoted the status of the judiciary as the main source in Iran's administrative law system, such as the customary law system. However, the law itself is the first source of Administrative Law in Iran's Legal system.
Criminal Law
SayedHamid Hoseyni; Firouz Mahmoudi Janaki
Abstract
he mental disposition of individualism and natural law advocates is the main trough of the "right not to be punished". This right is an innovative and great disputable issue among the law philosophers of Criminal Law. Multidimensionality and ambiguity of "right" and "punishment" have caused a wider area ...
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he mental disposition of individualism and natural law advocates is the main trough of the "right not to be punished". This right is an innovative and great disputable issue among the law philosophers of Criminal Law. Multidimensionality and ambiguity of "right" and "punishment" have caused a wider area of the aforementioned challenge. This article presents the meaning of the "right to not be punished" besides doing some studies on its main philosophical and criminological foundations through the descriptive-analytic method. The findings of the study indicate that the "right to not be punished" is in the category of a priori, natural and fundamental human rights and is of the type of "conditional negative claim-right". Human dignity, philosophical principles of avoiding harm and harassment as philosophical theories of pressure, radical (critical) and labelling are among the criminological foundations of the formation of this right, which has made its philosophical underpinnings more understandable and acceptable by referring to other researches in social sciences. It is obvious that paying attention to the concept and foundations of the aforesaid right, results in reasonable saving on both criminalization and sentencing in criminal law.
Criminal Law
vali rostami; Sina Rostami; Hasan Kabgani
Abstract
The point of departure for the law and the sign of adherence to the rule of law is the existence of a constitution in any country. In the legal system of Iran, the safeguarding of the constitution is enforced by the Guardian Council and the Judiciary. Nevertheless, the Guardian Council seems not to be ...
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The point of departure for the law and the sign of adherence to the rule of law is the existence of a constitution in any country. In the legal system of Iran, the safeguarding of the constitution is enforced by the Guardian Council and the Judiciary. Nevertheless, the Guardian Council seems not to be fully in line with the principles of fair trial enshrined in the constitution. Because by reviewing the legal and fundamental principles of the Code of Criminal Procedure, approved in 2013, one may easily realise that some of the provisions of this law are in conflict with the principles of fair trial enshrined in the constitution. Accordingly, it seems necessary to analyze the existing conflicts as well as to examine the possibility for court judges to invoke the constitution, as well as the non-implementation of legal articles contrary to the principles of the constitution. The present study uses a descriptive-analytical method to measure the compliance of ordinary laws related to the principles of superior proceedings and in case of changes and non-compliance, to describe the guarantee of implementation of these discrepancies. The results indicate that the Code of Criminal Procedure, passed in 2013, despite the great progress made in observing the principles of fair trial enshrined in the constitution, in cases related to the right to appoint a lawyer and the publicity of dealing with political and press crimes, the principles related to the separation of powers and other cases, still contain sentences contrary to the spirit of the Constitution.
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.
Private Law
bahram taghipour; Narjes Salehi
Abstract
In the capital market, there is a range of transactions between the issuer and the investor or between the securities buyer's and seller's brokers. These transactions, like other kinds of transactions in the non-regulated markets, require efficient rules and sanctions. Some of the sanctions are individually ...
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In the capital market, there is a range of transactions between the issuer and the investor or between the securities buyer's and seller's brokers. These transactions, like other kinds of transactions in the non-regulated markets, require efficient rules and sanctions. Some of the sanctions are individually restricted to the capital market transactions and have been enacted by the Securities Exchange Organization and Securities and Exchange High Counsel. Some other sanctions can be drawn out of the general rules governing contracts. It is expected that the right of retention, as a general rule governing contracts, is applicable in capital market transactions, as well. However, given the specific rules governing the securities market and the necessity of using brokers' services in this market, there are some scepticisms on the right of retention in securities transactions. This study, in a descriptive-analytic way, shows that despite the fact that the right of retention is the general rule of contracts, there are serious scepticisms regarding its application in securities transactions because of the unique nature of these transactions and the fact that these transactions are realized through brokers and central depository company. This is sometimes for the purpose of protecting investors in the context of capital market regulations but in some situations can violate both investors' and brokers' rights. Therefore, it is necessary to set up the Delivery vs. Payment (DVP) system to cover the gaps.
Private Law
Amirhosseyn Alizadeh; Mohammadbagher Parsapour
Abstract
In order to implement public projects which are carried out by the executive systems, apart from the ownership, the owners of the property in these projects' realm may be affected by the implementation of public projects. The question is whether the executive system can be held liable for such damages? ...
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In order to implement public projects which are carried out by the executive systems, apart from the ownership, the owners of the property in these projects' realm may be affected by the implementation of public projects. The question is whether the executive system can be held liable for such damages? This is one of the most important issues in many countries, which has sometimes been overlooked. In the present article, this issue has been studied in an analytical and comparative manner in the Iranian judicial procedure. In general, British law's spoken about three types of damages: damages resulting from the ownership of a part of the property; damages resulting from the type of work and exploitation of the project and damages resulting from the deprivation (disturbance) of rights. Determining the compensation in the first case is done on the base of three rules of concurrent value or value reduction and the rule of before and after, and in the second case is based on the method of payment of damages in the scope of civil liability and in the third case, is based on the evaluation of relocation costs or completion of business activities. Iranian law and judicial precedent have no corresponding rules regarding the damages of the first and second types, and the judicial procedure does not provide a clear criterion for damages of the third type. In some cases, determining the compensation is subject to the agreement of the parties or to the extent of definite damages. However, it seems that in Iranian law, based on accepted rules and principles, it's possible to provide acceptable justification for the application of rules in British law.
Criminal Law
Behnam Ghaffari; Seyyed Hamid SHahcheragh
Abstract
One of the major problems at present in the branches of criminal Judgment's execution throughout the country, which have a significant volume of cases in these units, are cases involving default convictions where their judgments have not been actual notice. Such cases, which were not executed due to ...
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One of the major problems at present in the branches of criminal Judgment's execution throughout the country, which have a significant volume of cases in these units, are cases involving default convictions where their judgments have not been actual notice. Such cases, which were not executed due to the lack of recognition and access to the convicted person, now constitute a large part of the older cases of these branches. Certainly one of the most effective legal tools for overcoming such an undesirable situation is the regulations governing the execution prescription. However, due to ambiguity in jurisprudence over the concept of "definitive verdict", this legal instrument is not well used and the Legal Department of the Judiciary has not been able to assist in resolving this dilemma by providing a proper interpretation of the provisions. On the contrary, it has added to the ambiguity of the field with its controversial and critical advisory opinions. In this article, in addition to exploring the concept of the definitive verdict, numerous opinions of the legal department in this field will be criticized, and eventually, it will be shown that default judgments along with other judgments commonly accepted as definitive and non-appealable are subject to execution time-lapse set forth in Article107 of the Islamic Penal Act, 2013.
Private Law
Ali Asgaritavani; Hasan Mohseni; mohammad ali mahdavi sabet; Mansoor Amini
Abstract
The enactment of the Code of Criminal Procedure in 2014, following the 1999 law that considered general courts, raised the question of what the consequences would be for the separation of legal and criminal authorities. One of these effects is the influence of the legal authority from the criminal due ...
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The enactment of the Code of Criminal Procedure in 2014, following the 1999 law that considered general courts, raised the question of what the consequences would be for the separation of legal and criminal authorities. One of these effects is the influence of the legal authority from the criminal due to the compliance of the legal authority with the criminal verdict. However, the question is "to what extent" and "in which condition"? In Article 18 of the Code of Criminal Procedure, the legislature only mentions the phrase "effective" criminal verdict on a law. While the phrase is not clear and should be analyzed by studying the elements of the criminal verdict. In this article, by mentioning the principles, characteristics, conditions and effects of the rule of validity of the final criminal case in civil law in the legal system of Iran and France, we explain the superiority of criminal law over civil law by mentioning the votes. Finally, we make the exception of the fact that the third party is the victim of the criminal verdict and the buyer of the property in the transaction intends to flee from the debt. The research method is based on a descriptive-analytical and applied method (judicial procedure). The main result is to prove the existence of the right of the third party affected by this rule.
Private Law
Seyed Saeed Hashemi
Abstract
At the initiative of the Hague Conference on Private International Law, the Convention Abolishing the Need to Certify Official Documents of Foreign Government Documents was adopted in 1961. In 2012, the Islamic Republic of Iran approved the Act of "the Accession of the Government of the Islamic Republic ...
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At the initiative of the Hague Conference on Private International Law, the Convention Abolishing the Need to Certify Official Documents of Foreign Government Documents was adopted in 1961. In 2012, the Islamic Republic of Iran approved the Act of "the Accession of the Government of the Islamic Republic of Iran to the Apostille Convention". However, the instruments of the accession to this convention have not yet been deposited to the Ministry of Foreign Affairs of the Netherlands. So after several years, Iran is not considered a member of this convention. The main purpose of this convention is to facilitate the certification of documents as well as to facilitate the use of internal documents in other member states of the convention. By acceding to this convention, the consular representations that mediate the certification of documents are eliminated. This research uses a descriptive-analytical method to examine different parts of this convention and in each part analyzes the view of Iranian law based on the executive regulations of the Act of accession to the Convention and explains the appropriate solution in this regard. In the final part of the research, the consequences of accession to this convention are explained. With the passage of this Act, some domestic acts of Iran in reciprocal relations with the member states of this treaty have been implicitly abrogated, including the fourth paragraph of Article 1295 and Article 1296 of the Civil Code, as well as paragraph A of Article 2 of the Act of the Translation of statements and documents in courts and official offices. Accession to the convention also facilitates the attraction of foreign investment and reduces the outflow of foreign currency for certification. Therefore, Iran's accession to this convention is a positive step for the national interest and it is recommended to take other executive steps to join this treaty.
