نشریه مطالعات حقوق تطبیقی معاصر
پیاپی 4 (بهار و تابستان 1391)

In Islamic sources, legal presumption of continuity of status quo at the view of subject is divided into two parts: existence and non-existence status quo. Majority of Islamic jurists have recognized both kinds and acted on the basis of them in doubtful cases. Existence and non-existence status quos have not been foreseen in the enacted laws of Iran; however, legislators have been inspired by them in some laws. In this article, we consider operation of existence and non-existence status quo in civil laws(civil code and civil procedure act).

Religious Jurisprudence Commands, like other texts and deeds, have inward and outward meanings. The outward meaning of a text includes surface meaning, denotation, and lexical meaning. Inward meaning is the implied and connotative one in different stages of lexical meaning including the implied meaning indicated in semantics, rational correlatives of speech, purposes of speech, correspondent and distinctive concepts, certain expurgation of basis of action, and the meaning which is acquired through the abrogation or annulment of acquaintance (unimportant conditions and indications). Debate about the inward and outward meaning of a text is a linguistic and semantic one, and in Religious Jurisprudence, it is commented on in discussions about texts. Inward meaning is not at odds with the outward one, but in order to reach to the deep and implied meaning of the text, we have to comprehend the surface meaning systematically. Mankind has the ability to understand at least some parts of the implied meanings of the Religious Jurisprudence Commands.

Criminalizing moharebeh (war against God) in Iranian penal law is based on the 33rd verse of Maedeh Chapter. However, this verse implies both moharebeh and ifsad fi al-arz (craeting corruption on the earth), but most commentators and jurisprudents (fuqaha) believe that the mentioned verse is just about criminalizing moharebeh and one is not allowed to use it for criminalizing ifsad fi al- arz. However, in many cases, with a superficial interpretation, lawmakers have used this verse for criminalizing ifsad fi al-arz. To define moharebeh, this article criticizes such cases and analyzes the physical and mental elements of moharebeh crime.

Not all crimes are committed intentionally. Sometimes the agent carries out an act which he had not intended, but due to some other factors, his act is reprehensible. Carelessness is one of the most prominent factors which can bring about criminal responsibility. Now the question is from which perspective should carelessness, negligence, etc. be viewed? Should we consider whether the agent was subjectively careless (Subjective Test)? Or whether the subjective test should not be relied upon and the agent’s act should be compared with those of a reasonable person (Objective Test)? In this paper, we are going to prove that due to multiple reasons, the mere reliance on either subjective or objective test is not an acceptable approach since each of these approaches comprises advantages and disadvantages and the sole use of any one of them will bring about the incompetence of the criminal justice system. What will result from the reasonable co-existence of these two viewpoints is a moderate approach which is free from subjective and objective extremism and we shall name it “The Mixed Test”.

Today, thanks to the contribution of psychological concept of "Battered Women Syndrome" (BWS) and considering so called "Post Traumatic Stress Disorder" (PTSD) anxiety disorder and its relationship with criminal behavior, most criminal justice systems adopt gender-based approach and also redefine the components of self-defense, which helps them explain why and how battered women resort to murder in response to sexual and psychological abuses imposed by their abuser husbands or partners. To understand how BWS as one of the subcategories of PTSD can justify criminal behaviors of battered women, dealing with the relationship between anxiety disorder and criminal behavior is necessary. Hence, the present paper proposes that first it is necessary to determine the concept of BWS and other related concepts, and then clarify the situations and role of this syndrome in a legal defense from psychological and sociological perspectives.

One of the main problems in Iranian legislative criminal policy is the "conflict of laws with the scientific foundations of the legal institutions and their objectives", one of whose clear manifestations is the right of making decision provided for courts in many statutes. This article analyses this problem and concludes, by examining the theoretical foundations of some legal institutions and their aims, that this problem mainly arises from "lack of attention on the side of the legislature to these bases and objectives" and from the idea of "islamization of laws", and that the legal nature of the court decision is duty not right. Therefore, providing the right of making decision for courts in laws is not only contrary to the legal nature of the court decision but also congruent with the philosophical foundations of the legal institutions and their objectives.

The regulation of "discretionary punishment is for every forbidden act" is one of the major jurisprudential, legal regulations that jurisprudents disagree about especially on the execution process and the cases of applying. This matter, however, has a direct executive effect in Islamic legal system and Islamic Republic of Iran and two fundamental questions have been raised about it: (1) the executor and the rule of right or duty of the executor and (2) how to implement it. About the executor of discretionary punishment, practically, two choices of ruler and judge should be regarded. The jurisprudents’ opinions about the execution of discretionary punishment, however, support the ruler. Furthermore, if some points of view are raised about the judge, is because of the conception that judgment belongs to government and the Islamic ruler authority. However, the execution of discretionary punishment is ruler’s right and is within his authority, not his task or duty and of course if it were his duty, its quality would be recognized by himself. About the case of applying discretionary punishment in jurisprudential, legal system of Islam, despite jurisprudents’ belief about the restriction of the discretionary punishment only in whipping case, there are lots of reasons which prove that discretionary punishment is not restricted only to whipping. These reasons represent that discretionary punishment can vary from a word of advice or simple punishment to imprisonment, whipping etc, and there is no reason to restrict it only to whipping. Considering the purpose of this regulation and the norm of Islamic ruler’s authorities in restoring order and providing security, its evidence cannot not be found.

In criminalization stage‚ the principle is that homicide must be intentional. But nowadays‚ homicides are not committed intentionally, but they occur as a result of misusing of thought during various activities‚ disturbing the public order and hence they must be criminalized. Hence, the mens rea of homicide should be extended and, in addition to intent‚ it should cover the failure in using the thought by human. If the fault is so grave that it can disturb the public order‚ it is called criminal fault. It must be suggested that the authority that finds occurrence or non- occurrence of criminal fault and its gravity is jury. Criminality of homicide that rises from criminal fault is exceptional and needs to be expressed by legislator. Occasionally, the legislator has alternated the fault with intention and has extended the punishment of murder to that. In this article, it is proved that retaliation is the punishment of murder and would not cover the homicide rising from fault by anyway.

This paper seeks to reveal the extent to which the activities of UN Security Council are compatible with its defined jurisdiction in the UN Charter. For this purpose the activities of Security Council from 1945 to 2011 have been compared with the regulations of UN Charter. The outcomes demonstrate that the Security Council has expanded its jurisdiction in practice, that is, the Security Council has done some activities which have not been predicted in the UN charter. Also it has done some activities which are in contradiction with the rules of Charter and the other regulations of international law.