فصلنامه راهبرد
پیاپی 76 (پاییز 1394)

One of the key issues in the legal topics is confrontation between "sovereignty’ rights" and "citizenship rights" in various fields. On the one hand, national sovereignty and political authority is the most important value to governments and statesmen will not spare any effort to ensure the sovereign rights. On the other hand, today the concept of “citizenship rights” as the opposite of "sovereignty’ rights" has found special position in the field of international law and the internal law of many countries, particularly issues related to human rights. According to current thoughts, a dynamic and ideal legal system on the one hand, should be advocate and defender of citizenship rights and its implementation and on the other hand, it must insists on strengthening the foundations of sovereignty in the country, which advocates citizens’ rights and the values of human dignity. In the meantime, without any doubt "crimes against security" is one of the most critical challenges and confrontations between sovereignty rights and citizenship rights. Because of the great importance of crimes against security and pernicious and detrimental consequences that such crimes have for public order and security, independence and national sovereignty, governments in the response to these crimes usually take steps to ensure sovereignty rights and sometimes deviate from of the general principles of criminal law. Criminalization of criminal thought and preliminary conducts, expanding the scope of crimes, depriving the perpetrators from leniency mechanisms and the rights of the defense, deviation from the territorial principle of the criminal law, applying Strict approach in response are the most important examples of deviation from the general and established principles of criminal law in the field crimes against security.

Dissatisfaction of the world’s public opinions with impunity of World War I criminals raised a question in minds of international community after another world war had occurred: "Will we be safe and immune again?" Bitter experiences with wars and conflicts, with massacre and bloodshed in various global dimensions led post- World War II international community to take appropriate tactics to maintain international peace and security. In fact, it can be acknowledged that experiences resulting from such hostilities shocked international community and developed this idea that some fundamental and effective tactics should be taken to punish war criminals in order to prevent recurrence of horrific crimes and even occurrence of wars. Nowadays, for this reason, phenomenon of impunity present in international criminal law system is considered as a wide spread predicament and challenge to fighting against terrorism. In order to realize elimination of impunity in countering terrorism, it is necessary to exercise solid rules of international legal system such as extradition, prosecution and universal jurisdiction. Thus, this paper seeks to provide a clear definition of impunity while evaluating status, conditions and exercise of mentioned rules in putting and end to this phenomenon.

Corruption is main topic behavior against public and administrates order. It is dangerious for the society. However policy-makers foresight prevention, penal policy and plan for control of corruption in international and national criminal policy. This approach resulting to globalization of criminal policy for reduces of corruption United Nations Convention against corruption 2003 is the example. There are many Acts and policis in context in Iranian criminal policy is. By-law of systematic and permanent prevention and reaction against corruption in the executive 2014 is policy of important for control of corruption. In this article, substantive and procedural aspect of prevention of corruption in Iran is studied.

From the early periods of fiqh, jurists classified chapters of fiqh based on various approaches and in different manners. These classifications have been often studied from a logical and educational point of view rather than from that of their methodological requirements and impacts. Reviewing the history of the classifications of fiqh briefly, and going beyond their logical and educational consequences, this article studies the classifications of fiqh more from their methodological requirements and differences in the method of ijtihad (legal reasoning) based on the nature of the issues of different chapters. This article also explains that the topography of the domain to which the text and/or the issue are related plays a large role in distinguishing permanent rules from temporary ones. Differentiation between decrees which are simply means (vasail) from those that are the aims of law (maghsad) is another methodological benefit of the jurisprudential classification. The topography of the issue, according to the author, also enables jurists to differentiate between the rules established initially by the holy lawmaker from those previously settled regulations which simply received the ratification of the holy law maker. This article also suggests that differentiation between interpretative methods of texts related to acts of worship (ibadat) and those related to the relationship between humans (muamilat) is very vital. The location of the jurisprudential questions also plays a role in the recognition of the type of religious statement as well as finding a more suitable way for conflict resolution between contradictory texts.

Scientific findings indicate that the path of sustainable social changes pass through the "education" of manpower. As developed countries considere "education" the most important national action in the course of development. We believe, the development of Public Law depends on promoting education of Public Law and there is significant relationship between the education and development of public law. This study goes beyond the traditional classification of Public Law in the areas of Constitutional Law, Administrative Law, Financial Law and Labor Law and is among the "Methodological studies" or "Foundations of Public Law". The method of this research is from the collection of information "E-Field Library", from the nature of research "Analytical" and from the ultimate goal of "Developmental Research". Conclusions and suggestions of this research state concisely that: There are several problems in the education Public Law in higher education institutions in Iran and its required to revision of the mechanisms, and the of “Iranians ethos” reformation and producing local- historical theories in the path of the development of Public Law in Iran.

Fallowed by the hierarchy of legal rules, Iranian legal system has provided some institutions for preservation of constitution against of laws and regulations. Nevertheless, status of preservation of constitution is not so desired because the scope of jurisdictions of supervisor institutions does not extend to all the existing norms in the legal system. For example, Guardian Council is only institution that preserve the constitution against the resolutions of Islamic Parliament and this supervision does not apply the other legal norms that approved by another Normalization. Also, the supervision of Administrative Justice Court doesn’t include to the executive norms and neither extends to legal rules. The multiplicity of normalization and absence of comprehensive control on them, have caused to enter and attend the conflicting norms with constitution in Iranian legal system. These conflicting become obvious for the Laws enforcement officers in execute phase. Judges of courts are considered as one of the laws enforcement officers that might be to encounter with conflicting norms with constitution. This research is studying the reasons of the Advocates and Opponents of Constitutional supervision of Judges, on the Ordinary laws. Accepting the Jurisdictions of Constitutional supervision of Judges on the Ordinary law is the result of this paper.

According to the demos of Imamiye jurisconsults the trusty is not responsible for the compensations which are caused without his abuse and wastage (Estiman rule). On the other hand the mere expression of trust in a person is caused to his exoneration of onus of proof in case of claiming by the owner of the trusted property (the rule of acceptance necessity of the trusty claim). While both of reasons are related to two different rules, but the origin of both of them is expression of confidence to the trusty. By an analytic view in this article, we were aware that there are some streaks of this rule in public law, and in case of proof of this, it’s results is analyzed because of the independence and linkage, and finally it’s suggested that like a judge and government officers, other government workers to be under this rule in legislation by the parliament.

This article deals with this question, that whether, in case of grave violations of obligations under international law, the states may not longer invoke jurisdictional immunities of the state, as a new development and trend in case law, i.e. lex ferenda, whereby includes the principal official representatives of the state, acting in that capacity, or by exercising jurisdiction over foreign state, the court would act in breach of jurisdictional immunity of states. While certain groups of international law jurists, based upon, in particular, the exigency of ending the impunity, when a grave violation of international humanitarian law is perpetrated, defend the new trend, namely non-invoking of jurisdictional immunity of state, as lex ferenda, the author challenges the said assertion, stating that International Court of Justice judgments have not supported such domestic litigations and adjudications, vice versa still underline state immunity as lex lata and as a principle of international customary law.

Invalidity of the guaranteed profit without undertaking any obligation, risk or charge (Botlane rebhe ma lam yozman) is an extractive (Estyady) rule derived from the Hadith of the Prophet (PBUH). According to this rule wherever profits or proceeds on capital (money), arise from the contractual relations without undertaking any risk, act or economic activity by the investors, must be considered as usury (Reba), which is absolutely forbidden in Islamic law. A clear example of this rule is guaranteed or fixed rate of interest through interest loans. The rule applies on all fields of financial instrument, securities, options, and debt documents, contracts, banking operations, productions and financial services. In Mudaraba contracts, e.g., parties’ interests (capital, interests entitled by trusteeship, agencies or management services) cannot exclude from the business normal risk. In other words, the agent (the party who manages the business in return of the portion of the acquired profit) cannot be obliged to guarantee the project profitability, or to pay a fixed rate on this business. So, no party can be completely excluded from the risks, or losses arise. Consequently, such damages or losses should be allocated to all parties respectively.

The aime of this article is study legal analysis of securities in value. The kind of rights against securities has positive correlation with economic efficiency. In this article the economic analysis of securities would be focused with a comparative study with common law. Securities cause assets with low liquidity such as land to reshape to valuable symbols. In fact, it is value which is transacted in the economy. Thus, the velocity of their transactions and as a result, the velocity of circulation of money would increase. Consequently if we consider securities as circulating rights i.e. consider them as quasi-negotiable instruments and also by legal support of bona fide purchaser, the transaction costs would decrease.