نشریه قضاوت
پیاپی 89 (بهار 1396)

Protecting the constitution is considered as one of the major achievements of public law in recent century. In fact, the value and credibility of the constitution is being preserved when all element of a legal system operate in a coordinated manner and protecting the constitution is regared as its dominant aspect. From this perspective, there is no distinction in protecting the constitution in common legal rules since each of which is regarded as part of the legal system. Hence, it cannot be irrational to monitor the lack of conflict of laws with the constitution. This process in rules of law is followed by administrative courts and through the mechanism of administrative proceedings from two distinctive but complementary ways i.e. constitutionalizing administrative law and administrativeization of constitutional law. In accordance to Article 173 of Iranian Constitution, Court of Administrative Justice is as an authority for dealing with people’s grievances arising from measures and decisions taken by government officials in order to administer justice and it has the authority to cancel illegal decisions outside the scope of the authority of public administration and responsible for constitutional proceedings and judicial protection of principles of the constitution. In practice, this court is responsible for a significant part of judicial oversight and protection of the constitution especially in the realm of public law as the broadest part of the government. The purpose of this study is to analyze participation of the Court of Administrative Justice in the process of constitutionalizing administrative law as an instrument in line with constitutional-based supervision on rules of law and enhancing the process of protecting the constitution by expressing mechanism such as cancelation of provisions contrary to the law through relying to principles of the constitution.

The provisional decision, referred to in Articles 310 to 325 of the Civil Procedure Code, is use to protect the subject of disputes and avoid the risk of further losses and in many cases is the urgent need of the claimant. Accordingly, identifying the competent authorities of application of this legal capacity with regard to the distribution and diversity of judicial authorities, is considered as one of the significant aims of the present research. Although our legislator in articles 311 and 312 of the Civil Procedure Code regards the court of the location of the property subject-matter of the case, the Court to handle the dispute and competent court of the principle case as competent authorities, because of different forms of civil issues and different temporal situations containg urgency, any authority which considers a legal case in any way and faces emergency situation- meeting legal requirements- may be considere as competent for issuing interim order. In French law, the juge of summary court and the chief of the district court, and in the English law the equity court are competent to consier request for interim order. In the civil procedure of the Germany, the superior courts are competent to deal with such requests.

Res judicata is one of the established rules, which blocks any way to protest to the sentence after its finality. However, in some issues this rule may conflicts with the principle of discovery of fact in penal trials. The intersection of res judicata and the principle of discovery of fact is the starting point of revision. Basically, one of the conflicts of fairness and justice is here. Justice says after sentencefinality, no other claims would be heard. On the other hand, fairness requires that if a person has been sentenced ilegaly, he must be able to advocate himself and appeal. Appeal to sentence is opponent of res judicata and may loosen the judicial decisions. Nevertheless each sentence must be according to fact and then if it proven that it`s not fact, it must be a way to reverse. Especially no one can claim that a judge is immune from mistakes. This article studies the revision in the new Criminal Procedure Code of 2014. It reviews all aspects of the Code. At the end it explains the general approach of Iranian law-maker and suggests some remedies.

Historical documents and evidences discovered by archaeologists show that legislation in its primary traditional form -namely anything has been remained from codes, epistles, the decrees of kings, recorded rulings in courts, judicial customs and habits, and doctrine- and modern form regars the testimony of witnesses as an important proof of guilt. Meanwhile "perjury" and "concealment of evidence" lead to an ominous phenomenon in the process of trial and it had not been ignored by the historians. From the substantive viewpoint, convicting to fine and compensation, cutting of the hands and tongue, and even depriving the life have been proven for the witness who had the falsely testify in the history of Mesopotamia and Iran’s law. The concealment of evidence has been criminalized only in particular times in history. In Islamic Law the punishment of perjury is the Ta`zir of witness and the type of this punishment was delegated to the discretion of the Islamic governor, and if the perjury lead to the death of an individual, the false witness is punished, and if the perjury had the retribution, it is executed for that testimony, and if lead to the blood money, it would be upn the false witness. From the procedural view, if the perjury is proven before the finality of verdict, reconsideration is allowed, and if the perjury is proven after the finality of verdict, judicial review is allowed. In the contemporary law of Iran, concealment of testimony, though is a great sin and bad practice, but has not been criminalized.

The manner of contract formation is an important issue in the field of contract law. The traditional approach divides an agreement into two elements: offer and acceptance. After analyzing any of these elements and their relations, the question that whether contract is concluded will be replied. The parelle approach, which supplements the traditional one, considers that modern transactions often require long and elaborate negotiations and the doctrine of offer and acceptance cannot applied for proving existnce of contracts. Under this approach it is not necessary to discover offer and acceptance. The latter, whch is the result of complicated, long-term and more detailed negotiiations for conclusion of some contracts, is suitable solution. The article deals with the explabnation and justification of the recent approach in term of national law and conventions and legal principles of international law.

Offence of pandering is one of the offences that has direct connection to destruction of public morals and it also causes commission of several offences. Accoringly, recognizing the grounds of its commission and preparing for its removing is of high significant. One of the main and basic grounds of this offence is street girls. In this regard it is of high importance to study the phenomenon of street women and their relationship to offence of pandering. This offence may facilitate the commission of several crimes. This article deals with the street women and their activities as fasiciltator for commission of the offence of pandering and its related social abnormalities. The exploring of these activities will be answering to this question whether their activities may be regarded as the offence of pandering. It also is necessary to study whether basically this offence itself is a seperat offence from the other ones. The study must clarify the ambiguities.

Criminal law in a society is a symbol of the power of the state, which should walk in line with power, liberty and law. The government inorder to prevent misuse of liberty needs power. The law and the power withut power are equal to chaos. The law and power without freedom is equalent to tyranny and the power free from law and freedom is barbarism. Often the most formal means by which any government can protect the lives and properties of the people and establish levels of desirable social order, homogeneity and security, is the criminal law and its affiliated institutions. In fact, the government is allowed to ciminalize some conducts in order to maintain the social order. Criminalization is a process by which the legislator considers some conducts as crimes for protecting social values and public order or other aspects through the adoption of applicable laws. In the criminalization, there are three primary principles need to be taken into account: legality, necissity and equality before the law. The standards for criminalization of a conduct for it is in contravention with the sense of justice and beyond the legal framework is to take into account the balance between the instruments required and the outcomes, the balance between the cost and benefit of the criminalization, the effect of such criminalization, and the last is the ability of the judicial system to enforce the law on the criminalized act.