مجله حقوقی دادگستری
پیاپی 103 (پاییز 1397)

The methods of enforcing judgments are so important. History of Iranian legal system shows several enactments relating to enforcement of judgments and insolvency. Since those laws were not efficient over a long time, Iranian legislature has enacted the new version of Enforcing Pecuniary Judgments Act in 2015. Comparative analytical of the new Act with its previous version displays advantages and disadvantages. Therefore, this article presents an overview of the issues surrounding the changes of new Act with focus on insolvency claim, including the necessity of recognition for losing party's property, attaching a complete inventory of all losing party's property to an insolvency petition, expanding the scope of the Act, burden of proof in insolvency claim, prerequisite for instalment orders or giving additional period for debtor and debtor's imprisonment as a last resort. In addition, it explores the possible difficulties. Furthermore, the paper analysis some vague understandings about enforcement of judgments relating to Mahr as special debt under Family Protection Act and according to specialia generalibus derogant.

One of the duties of the Chief Justice of Iran by virtue of the second paragraph of Article 158 of the constitution of the Islamic Republic of Iran is "Drafting judicial bills appropriate for the Islamic Republic". Article 47 of the Constitution has obliged the passage of the legal bills through the Cabinet to the Parliament. One of the controversial issues in this area is the possibility of judicial bills being sent directly by the head of the judiciary to Parliament.  This paper, with a descriptive – analytical approach, and to illuminate the goal of the Constitution, has scrutinized the definition of the word "Bill" and with reference to the principle of the separation of powers and some ideas stated by the Guardian Council, has reviews the authority of the Chief Justice of Iran to send judicial bills directly to the parliament.

Although the sensitive task of security establishment is entrusted to the law enforcement agencies by the citizens, in emergency situations they could undertake this essential role. Subsection (1) of Article 45 of the Criminal procedure is an obvious example of citizen participation in the formation of public safety. Accordingly, citizens would assume the law officers task in arresting suspects who have committed crimes that are punishable by death penalty, life imprisonment, amputation and intentional bodily harms with half of the full blood price, Tazir grade Three and above, if they are committed the way that is referred to as witnessed. Therefore, every individual is entitled to apprehend wrongdoers. Of course, this kind of legislation is not far from criticism and ambiguity, because the legislator failed to make clear the legal terms of necessary prerequisites before, during and after the arrest. This could give rise to the deprivation of civil liberties, irregularities and undue interference in privacy. The aim of this writing is to investigate the frameworks of necessary conditions that must be followed in these procedures. Theoretical and comparative studies suggest that despite of the establishment of these institutions in the Iranian legal system, necessary rules and procedures in protecting rights of citizens and suspects are ambiguous.

One of the most important questions concerning the remuneration of the advocates in a civil process is to know if the contribution in requisition or a claim by the attorney is prohibitedby Iranian law or not? It has one of the most involved problemes of several cases in the specialized disciplinary court of advocates in Iran. Although in Iranian law this matter is prohibited, in the American law this contributionis completely legal and not prohibited. In contrast, in French law there are some restrictions to this procedure. This article comes to explaine that this restriction is useless and can induce the attorneys to commit the fraud or shortchange. In addition, it is neither against the Islamic law and Iranian civil law, nor the professionals’ ethics regulations of the advocates. By this reason the Iranian law must be modified toward real and transparent dispositions that can authorize the conclusion of the contracts named in USA by Pactum de quota litis between the attorneys and their clients. This article tends also to analyze a concerned case law.

Captaincy that causes commission of crime by designing, constituting, organizing or managing of criminal group is assistance in crime in respect of behavior. However in other hand it is aggravated factor because captain dose not commit a crime principally but he is convicted to maximum punishment of offence which member of group commit in direction of aim of group by according with s.130. In some cases that sentence of person aggravate on basis of special statutes by reason of leadership or forming a band, network or organizations could not impose punishment again by s.130. Legal persons can not become member or captain of group or captain, In spite of they may have criminal liability. In attention on minimum of group is three persons, time of captaincy of group is time of designing, constituting, organizing or managing of criminal group, no time of committing of crime even members of group deduces to less of three members.

The facts would be considered as a set of legal and material events which are presented by each of the parties to a dispute for justifying and reinforcing their object of action. These parties try to prove this set. Some of the important issues of hearing include possibility or impossibility of the facts in all of the hearing steps and the way of facts effect on the hearing result.These issues cause some ambiguities for the correct civil hearing in terms of silence of civil procedure code. This article aims to answer all of these ambiguities. According to studying different views of jurists and judicial precedent, we can understand that presenting facts and expressing the is obligatedby the parties to a dispute: gradually passive vole of the courts was adjusted by the amendment of laws and the importance of judge’s role beside parties to a dispute was emphasized in justice achievement. Presenting and proving facts are possible in each step of court of first instance and provincial court of appeal and they are different from presentation of new allegation. The court cannot render meritorious judgment in favor of a plaintiff without presenting enough qualified facts in order to justify the enforcement of the legal rule. If court of appeal distinguishes the facts in a different way, then it will annul the reviewed judgment and will render a new judgment. After the conclusiveness of judgment, during the revision, if Supreme Court discovers that the presented facts are not sufficient for justifying invoked legal rule, then it will break the reviewed judgment due to the lack of a legal base. In addition, the facts have a direct effect on clarification and explication of judgment and distinguishing authority of res judicata.

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.

Penal policy in the meaning of the combating crimes by means of punishment, like all other policies has some special patterns. This policy has three fields: criminalization, criminal liability and punishment and every field has its own models. Every countries select one model as a primary pattern and use some other patterns exceptionally. However, the important issue is consistency of policy. There is a strong relationship between selecting the pattern, in one hand, and situation which the provision is enacted, in the other hand. This paper, with the discourse analysis approach will scrutinize the post revolution criminal Acts to find out what was/is the primary model of sentencing in the Iranian criminal law and consider why the sentencing model is changed in the last Criminal law, i.e. Islamic Criminal Law 1392. Finally, it concludes that the most important sentencing model in the first three decades was voluntary sentencing model. Because the prominent approach was Fiqh approach and in the fourth decade the primary sentencing model is shifted to presumptive sentencing model.

In the legal works, it is usual to reason by relying on the spirit of law. In spite of this fact, authors do not explain the nature and basis of the spirit of law. The spirit of law as a legal source was incorporated in the former Civil Procedure Code 1940, article 3.Although the principle 167 of the Constitution weakened the spirit of the law as a legal source, but it survives accompanied with other sources mentioned in the principle. It is necessary to mention that even after the abrogation article 3, the spirit of law has been invoked by courts in several cases. There is no unanimity, in the doctrine, about its meaning. It contains a great spectrum of meanings; from a simple meaning such as contrary argument to the general conceptions like the basis to the deduction general principle of law. In this great spectrum, there are so contradictory meanings that cannot be harmonized in legal system.