فصلنامه پژوهش حقوق عمومی
سال دوازدهم شماره 28 (بهار 1389)

Legal rules relating to the damage of corporal hurts form the main part of law of torts. Since the enactment of Islamic punishment laws and jurisprudence rules many questions and ambiguities about most of damage caused by corporal hurts and specially moral and financial damage of treatment and disability was raised that despite of a quarterof century still remained unanswered and its matter of law is not clear for lawyers and even courts. Unfortunately our country is among the countries with the highestnumber of victims of corporal events and damage, and the related suits are the most common suits in the courts. The root of this ambiguity is the persistence of jurisprudents on paying only the DYYAH (Fixed amount of money paid to the victim of a corporalhurt) and not paying other damage like costs of treatment and disability on one hand and on the other hand, adverse of lawyers and courts upon injustice and other interpretation of this view that has not been accepted by jurisprudent.This paper tries to present a new view of jurisprudence and legal logic with knowledge of jurisprudence logic and evolution of indemnification of corporal hurts than mere DYYAH to full compensate upon separation mental and material damage in current law of the world to present a suitable solution with jurisprudence logic and basis of justice to solve this inexplicable problem of Iran’s law.

In the cases in which an agent has not the right of Subscription, the questions as choosing another person as an agent for execution of the subject of the contract as delegation, the legal effects and the consequences of this act may be considerable.It seems that, if the subject of the agency concludes of a transaction with special person, such transaction is valid only on the base of this requirement. Therefore in the cases that the contract exceeds special limitations, it will be invalid unless it has been expressly or impliedly agreed. Otherwise, if the price or the subject has general importance in the contract, the agent or the selected persons must execute the entireobligations. However, while the subject of the agency is under performance, in thecases of any damages, the selector and the selected person, both, are responsible to compensate

Right and duty are kinds of subjects that appropriate the most and challenging point of views. Each ideological school considers these issues regarding to its own world view and its own specific values. Islam not only as a religion but also as an ideological school has seen these issues. In other words, the main part of Islam is chain of rights and duties that form a main part of Islamic law. Our research about the concept of right indicates that the common point of right definition in the legal system of Islam and Human rightsis its "Privilege of Being". Whatever is in Islam is “the rights of human” and if it talks about duties, if notice accurately, finally they serve” human rights". Originality of right is another issue that will be discussed in this paper. In other words, according both systems, rightis principle and duty is supplementary and subordinate. Still, there are many important aspects that should be researched. A major study in this field is to identify the most important point of contrast in the territory of Islamic legal system and Human rights.Hence, the writer has tried to study 'right" and "duty" from the perspective of Islamic Rights and Human Rights. Moreover, it has been trying to consider factual manifestation of right and duty in the Constitution of Islamic Republic of Iran- that is actually theintegration of Islamic and Human Rights viewpoints (with the superiority of Islamic views).

Nullity of tenancy will occur in two shapes: first, tenancy may be null upon lack of one of the conditions of validity of contracts or lack of conditions of validity of tenancy. In this situation and with legal view no contract has been created and relation of parties has justappearance of tenancy. So nullity of tenancy whenever it reveal, retrogress and relation of parties must return in the form of before contract. Second, tenancy has all of the conditions of validity of contract in the time of conclusion but in the middle of tenancy,changing circumstance converts rented property that continuance of tenancy becomes impossible and consequently tenancy will null. In this case, nullity affects future and doesn’t retrogress. Upon this basis, in civil law of Iran, jurisprudence, Egypt and France ruin of rented property will null tenancy from the time of destroy and all of theparties relation before nullity will save, because capability of using for a period of time is the subject matter of tenancy and it is supposed that before destroy of rented property, utilization has been occurred and tenant has been obliged to pay rent. Iran law and jurisprudence in spite of Egypt and France law consider tenancy as a possessive contract.This classification involves some effects and consequences that has more harmony with the nature of tenancy and therefore Egypt and France law doesn’t have defects on nullity of tenancy has being seen in Iran law and jurisprudence.

The validity of obligation not to marriage for the second time, as a legal act, has always been a controversial dispute between lawyers and Jurisprudences. Some consider this agreement was illegitimate for general deny of right, and oppose with the imperative rules. Others believe that the assurance upon the decline remarriage right by the manis binding. In this study, explaining both perspectives, citing the legal basis and with the emphasis on social interest of family and a modern interpretation of the role of women in the marital life, validity of this provision in the form of a private contract that explicitly does not opposed the law, would be proved for marital terms. Toward the legal effects of this provision, regarding the importance of infraction of this provision and considering the necessity of effective enforcement, the theory of nullity of remarriage is acceptable, and also the theory rescission is not considered without reason.

The physician is obliged to treat his patient in according to obligations of a contract.He must also attend the technical and scientific standards and governmentalregulations. Although, If the desired results are not acquired this should not beconsidered as the breach of contract and physician responsibility. Therefore the faultof the physician must be proved (Liability on fault).For some reasons the legislator consider the physician fault and his responsibilityonly as a result of the patient's injuries (Article 319 of Islamic criminal law). On thatside, the physician should prove that there is no fault and no causality relationship.In order to reduce the physician responsibility (Article 322) He has been allowed totake exclusion from the patient before starting his treatments. Mere exceptions onlywill reduce his presumed responsibility which may be deduced from Article 319.

In humanities, nature of the crime is recognized by conceptual definition yet in criminal law; exceptionally crime is defined by Act. In fact in criminal law, nature of the crime is legal definition of crime, whereas this kind of definition refers to offences separately and then it is not definition of the crime basically.Understanding the nature of the crime in criminal law inevitably is dependant on three external First definition of offences, which points the nature of offences in each case and not by focusing on the nature of the crime; Second, by using the concepts in humanities such as sociology, philosophy and moral and third, byattending the comparison crime with similar titles which may help the distinctions among the crimes, but not understanding the nature of crime. In any case, crime is one of the most prominent interdisciplinary subjects and criminal law should at last conceder thehumanities for explaining the nature of the crime.

According to 1951 UN Convention relating to the Status of Refugees, a refugee is a person who, among other elements, "is unable or … unwilling to avail himself of the protection of " the country of his nationality. At the first glance, it seems that this element is dependent on the will of the refugee applicant, yet in dealing with refugee cases it has been construed as the lack of the protection which the states areobliged to provide to their nationals. Therefore, the status of a refugee for being unable or unwilling to avail himself under the protection of a State is not proved unless the will of The State for not providing him the protection is demonstrated. To this end, the refugee applicant should, while not having the possibility of resorting to the principle ofinternal flight, have demanded the protection from the state and also been outside the country of his nationality.

Novelty, human with the new technologies has obtained such a power in which he enables to interfere in his environment and in his own functions. In the new environment science and technology have been forced to consider the non science challenges, including social, ethical and legal issues.At the same time, the most complicated issues are those that cause to changes in the natural position of the Human being. These elements cause to enact various regulations in different areas. Such process also leads to the appearance of the fourth generation of human rights called bioethics.Therefore, the fourth generation of human rights has been formed as a result of progressing both science and technology. This article investigates the relationship between bioethics and human Rights by focusing on their fundamental principles, then we try to response this fundamental inquiry that what are the mutual interactions of the bioethics and human rights?

Upon criminal act (actus reus) forgery and deception divide into two groups: concrete and abstract. The concrete one can be divided into two types: 1.overall and primary concrete forgery, 2.minor and secondary concrete forgery. In every two types of concrete forgery, the criminal act (actus reus) is a positive act and conduct but thereare some differences. In the abstract forgery, the criminal act (actus reus) is a positive action and sometimes failure or refusal of a document editor to insert the desired content will redouned to a forged document. The overall and primary criminal act (actus reus) ismaking and creating a complete document that non of its elements are concrete forgery and the offender creates all components of it.The minor and secondary criminal act (actus reus) is adding or deleting some parts of a document. Of course those parts must be effective ones. Actus reus in all of mentioned forms can be simple and solid orcomplex and complicated. Change of theme or content on the time of making is the actus reus in abstract forgery. This alleged behavior is conceivable when a person is incumbent to make a document in relation to another one. In this case the later asserts something but the former writes another thing. In all mentioned cases, the actus reusmust be detrimental to others. Detriment and harm- whenever material and spiritual - is personally and socially. Contrary to fact cannot be considered as the condition of criminal conduct. Forgery and deception can be committed even the conduct conforms to the fact.

Preliminary investigations, as the essential stage in preparing the criminal proceeding file are important to determine the judiciary fate of the accused and the adjudication of rights of injured and administrating the criminal justice. To cross-examine the accused isconsidered the vital part of the preliminary investigations, and with regard to the necessity of advocacy of the principle of innocence and maintaining human dignity during the periods of proceeding vindicating rights of these people prior to and during the interrogation compatible to regional and international documents of human rights atthe stage of preliminary investigation are the basic considerations. Examples of vindicating rights in the mechanism of protocol of interrogations are numerous, which in the criminal proceeding systems of countries to be projected and arranged according to theprinciples of the fair proceeding and related documents. The right of understanding the charge with the mentioning of its reasons, the right of silence and announcing it, the right of having a lawyer and so forth, could be mentioned among these rights. In order to juxtapose with the principles of fair proceeding and guarantees of human rights duringthe interrogation, present deficiencies must be obviated even though in the criminal proceeding of Iranian law-maker has stipulated some of these rights in the constitution and criminal proceeding law. Iran’s judiciary branch has provided comprehensive Bill of criminal proceeding measures and has submitted it to the government to theextent that some of the short comings have been obviated.

The Parliaments Normally may re-enacts rules, while the rules are already valid and then when it repeals one of those rules, the question may arise that whether the previous rules with the same content are also repealed? A positive response is approvable by logic of norms and rules of law. In this regard, the Concept of law may not be recognized by its Subjects, sections and Sub-Sections, but with the main important functions of the law.Of course Legislator has an end by issuing an order. And by repealing an existed rule; he tries to abrogate his previous purport. Therefore postulating the validity of abrogated rule or amending the forms of the rules may amend him to concede the new purports and new issues in the process of Law-making.

Reactive or criminal prevention of delinquency consists of complex measures and actions of criminal justice system that have been applied after committing to a crime in order to deter potential and actual criminals from committing the first or another crime. Criminal policy makers usually use several mechanisms for accelerating criminal process to stop prolongation the time of tribunal, ignoring the rights of actors of criminal suits and preventive function of criminal justice system. In this paper, accelerating the criminal process in both national and international criminal policy is investigated.

Legal definition of the facts of case is prior to judgment. As in both of criminal and civil proceedings, deciding in respect of matter must be done after legal definition of the disputed facts. There is not aprecise definition of definition of facts, but it can be considered as putting it in some categories has been created by legislator. Groupsthat each of them has same law and governs on matters located in. Role of judgment in definition of facts is another subject of this paper. We will see that contrary to famous view, the role of judgment is a positive one and this fact entail some important effects in both of criminal and civil proceedings.

The lack of centralization in the horizon of Iran’s executive history emerged sincethe Constitutional Revolution of Iran, and its origin was in Tabriz. MunicipalCouncil as one of the important examples of decentralization, pioneered by Tabriz,formed across the country and managed the administrative issues of the cities. Butthe circumstances of this matter after a hundred years of establishment was not alikeand had passed many up and downs.Immediately after the Constitutional Revolution, municipal councils relying onmunicipal councils law, approved in 1325 (lunar year) with sufficient authority andconsiderable autonomy, whether for the selection of its members or the rate of thepresence and intervention of central government in their matters, began to organizethe affairs of cities. The coup occurred in 1920 and change of the dynasty and theestablishment of dictatorship, the councils ebbed. Legislation and enforcementof municipality Law in 1930 and its implementing regulations, these associationslost their independence and changed legally and practically into powerless agents ofcentral government. After September 1941, and the relative opening of politicalspace and especially starting of oil nationalization movement, municipal councilsbeing also considered, and by the approving of municipal law and the municipalcouncils formed in 1949 and then the bill of the municipality law in 1952 regainedrelative independence and authority to govern the cities. This period did not last solong and with the Persian date 28 Mordad 1332(August 1953) coup, the role ofmunicipal councils paled at the governing of city affairs. Adopting municipalityLaw in 1955 and its subsequent amendments and under the influence of prevailingpolitical climate, city councils converted to ceremonial institutions.After Islamic revolution in 1978, Iran's constitution, defined a great importance forcouncils, including the Islamic City Councils and declared them as the decisionmakingand administerating elements, but in spite of legislating relative laws,, thesecouncils were not formed for various reasons.Governing the city affairs deputed toostandariha on the behalf of them; finally the city councils were formed in1999,although the level of their authority and interference in city affairs of theirlimits is not in the status of constitutional arrangements in this regard.