نشریه قضاوت
پیاپی 92 (زمستان 1396)

Without any doubt, the act of legislation, without considering the purposes that by their nature, the decree belonged to, is troublemaking and unreasonable. In Islamic law, which is based on wisdom, the “art of purposes” used for explanation of the aims of Islamic principles. Some scholars consider protection of religion, life, wisdom, generation and property as five purposes of legislation while some others also add respectability to this list. However, according to the opinions of a group of scholars, such purposes are inadequate because the list does not include justice, altruism and security. Apart from the type and number of purposes, what is the order of legislation purposes in Islamic law? In case of conflict between such purposes, which one prevails? And, what standards existed for tackling the conflict between the expedient and harmful effects of such purposes? This article tries to answer the aforementioned questions.

The financial independence of the judiciary is closely related to the type of budgeting system of a country and is mainly emphasized by the separation of the executive and judiciary in the area of ​​proposing and approving the judicial budget, which has created two models of judiciary and executive. In the first place, the role of the judiciary in determining its budget is independent and decisive, but in the public model, the organs of the executive branch are significantly involved in this process. In Iran, despite the constitutional emphasis on the independence of the judiciary, according to the system of budget programming by executive branch, which governs the judiciary, and also based on a number of principles of the Constitution such as Article 52 and Article 126, the government has the discretionary power to change the proposed budget of the judiciary, indicating the lack of financial independence of the justice system of the country. By enacting a law that prevents the state to change the proposed budget of the judiciary or provides for direct presentation of the judiciary budget to parliament or allocates a certain percentage of country budget to the judiciary or establishes an independent bank for management of financial resources of the judiciary and, or by modification of the Constitution in this regard, the independence of the judiciary system may be improved.

Reasonable doubt principle is considered as an area for interpreting the doubt in favor of the accused, which has been accepted as a principle in article 120 of Islamic Penal Code in light of the existing jurisprudential principles. Furthermore, under article 91 of Islamic Penal Code relating to crimes of juveniles under 18 years old punishable by fixed corporal punishment and talion, some instances provided which overlap with objects of reasonable doubt principle. However, the scope of article 91 is wider than that of article 120 because, on the one hand, it includes talion, and on the other hand, establishment of growth and complete wit are required for its application. Of course, application effects of reasonable doubt principle is not identical for minors and juveniles. Interestingly, in crimes punishable by fixed corporal punishment, after establishment of reasonable doubt, the grown-up perpetrator will be released and discharged from punishment and criminal justice while juvenile perpetrator will be kept in circle of criminal justice and sentenced by tazier. However, all in all, it seems that article 91 is favorable to juveniles because it includes numerous instances and requires the establishment of growth and wit in crimes punishable by fixed corporal punishment and talion. Therefore, such article, principally, amounts to non-application of severe punishment on perpetrators.

The subject of ownership of land has long been one of the most complex social issues in Iran. With the genealogy and the analysis of the history of land status in Iran, the evolution of ownership and its consolidation methods, in other words, the legal system governing it in Iran, can be traced. Apparently, it should be distinguished between arable lands on the one hand and forests and pastures on the other hand. It seems that constructivism and agenda can be regarded as a turning point in the consolidation of land ownership. However, in accordance with Article 15 of the Amendment to the Constitutional Law, fundamental reforms were introduced in the tax system of the states, and the privileges of the princes and the method of secularization were re-issued, and then, in the Pahlavi period, the land reform was created by requiring the registration of immovable property, therefore, land terms changed in Iran after centuries. After the revolution, the credibility of land allocations was also confirmed through land reform. In the case of forests and pastures, it should be noted that, before the revolution, according to Qajar period privilege agreements, legislators considered forests as state owned properties but after the revolution, taking into account the rangelands as common commons, in various laws, including the principles of the Constitution and the Bill on the Transfer and Restoration of Land in the Islamic State of Iran, as well as its rules, were determined and assigned.

The concept of bankruptcy in Iran's law, in accordance with article 412 of the Commercial Code of 1311, has merely been the subject of businessmen but the Law on the Implementation of the Financial Convictions of 1394 approved by the Expediency Council has been taken to extend the persons subject to bankruptcy and article 15 of this law also subjects non-legal persons to bankruptcy laws. The analysis presented in this article suggests that, in addition to businessmen, non-business legal persons are also subject to bankruptcy rules. Non-business legal persons may include legal persons in public or private law. In this case, legal entities may also be subject to bankruptcy rules other than governing institutions. Furthermore, in the said law, the dealings for debt payment evasion with the conditions prescribed in it expanded to include legal persons and has caused conflicts between this law and Commercial Code (articles 424 and 500 of Commercial Code). Also, a certain formal procedure is introduced for insolvency petition of businessmen and legal persons, which can be criticized.

The aim of issuing court judgement is its enforcement in the shortest time possible, therefore, when enforcement process of a court judgement or an enforceable official instrument initiated, in principle, such enforcement must continue unless in cases which the law expressly permits suspension, cancelation or postponement of enforcement. Such suspension, cancellation or postponement of enforcement of each judgement or instrument, depending on its subject, may be related to different authorities including public and revolutionary courts, quasi-judicial or administrative authorities and also foreign judgements or arbitrations. The situations which enforcement may be suspended include death or incapacity of losing party, third party claim for the loss of confiscated property without negligence, lapse of five years from the issuance of a judgment, collection of object of judgement by winning party or his written consent for the closure, suspension, postponement, or termination of the execution, third party complaint about the property seized at the time of execution or third party complaint of judgement itself, appeal, retrial, request of suspension by general prosecutor under lawful conditions, provision of final judgement with prior date or subsequent date, and provision of official instrument with prior date about seized property. This paper clarifies the concepts of enforcement/execution proceedings itself and also termination, suspension, cancellation, and postponement of execution proceedings of civil judgements. Furtheremore, numerous laws according to which the decisions of domestic or foreign courts or international arbitration tribunals may be suspended are extracted and reviewed for the sake of resolving ambiguities and provision of practical solutions for preventing the impairement of parties rights and third parties rights and also expedition of realization of such rights.

The respect and trust of the general public and legal practitioners in the judiciary depends on the manner, decision-making and fair and just administration of judgments by qualified and competent judges. This paper seeks to elaborate legal and managerial skills and ethical standards for new judges because they are essential requirements for obtaining legal competence.To this end, the article explores the five judiciary skills, including "full control over the rules of procedure", "extensive familiarity with the rules of law", "the ability to conduct a hearing appropriately," the issuance of orders and judgments in a transparent, rational, and accurate way" and, finally, "the ability to deal with requests that cause recurring sessions" and five management skills, including "time management", "branch management", "management of the court", "management of how to deal with attorneys "and" Management of self" and emphasizes that mere acquisition of such skills is not enough for judges to be qualified, and judges are inevitably obliged to achieve five moral standards of "subordination and recognition", "honesty and integrity," "judicial independence," "humility," and "neutrality”. This paper also tries to show the accuracy of its claims with the consistent reference to the "Bangalore Principles of Judicial Conduct" adopted in 2002.