مسعود البرزی ورکی

Iran's criminal policy, due to the characteristics of the authoritarian model, is facing challenges due to security, social, cultural, etc. This article tries to identify and analyze the challenges of criminal policy in the legislative field from a critical point of view. The current article is descriptive and analytical and has investigated the mentioned subject by using the library method. The findings indicate that the principle of the political term (legal patriarchy), the principle of moralism, the principle of perfectionism and the principle of harm are among the most important principles governing security-oriented legal criminal policy. The principle of balance of evidence, the principle of prevention of damages. The principle of acceptance is one of the most important criteria for criminalization in security-oriented criminal policy. Security-oriented criminal policy is different in various models of liberal democratic, authoritarian and inclusive government. The security-oriented criminal policy faces challenges related to the determination of competencies and challenges related to the determination of competencies. The security-oriented criminal policy aims to eliminate or limit institutions such as reduction of punishment, suspension of sentencing, conditional release, and suspension and postponement of prosecution, with criminal measures in the field of the government's response to deviations, intensifying the guarantee of executions and means of responding to the criminal phenomenon, extreme criminalization. And at the most, and punishing criminals, which will be the indirect result of applying such thinking in the field of criminal policy, violating the achievements of the human rights system.

This study aimed to analyze the conflictual futures in the legislative governance of the Islamic Consultative Assembly. It examined the relations of alternative futures, which entail conflict, cooperation, and balance, in order to examine the future of conflictual legislative futures. The study focused on the legislation and the legislative branch in the 2046 horizon. Monitoring in this context serves as a form of prognosis, emphasizing the importance of being prepared and alert to avoid surprises. It is thus necessary to address the issue to ensure that the legislative system remains agile, accountable, and proactively responsive with timely reactions in the face of new and emerging legislative changes. Although a few studies have touched upon the issue tangentially, there appears to be no comprehensive treatment of the interdisciplinary area where futures studies, legislative governance, and monitoring intersect. In this respect, the present study sought to address the following question: What is the future direction of conflictual futures in the legislative governance?

Literature Review:

There appears to be no serious related study about monitoring legislative governance, or alternative futures in the context of the legislation. Concerning the latter, the literature has mainly discussed the future of conflict, contradiction, and opposition through concrete and practical instances derived from the field evidence. There seems to be no research about abstract, pure foundations of the relations of conflict, balance, and cooperation for different kinds of futures. An overview of the related foundations, theories, and models highlights the significance of a futures studies approach to legislation. The increasing intensity and pace of changes will give legislative governance a unique role, enabling it to handle wild cards, surprises, and uncertainties more effectively. The fields of policymaking and governance require more research and broader scholarly treatment. Field evidence and observations also indicate a growing trend and increasing attention to the future in the context of legislation, as the capabilities of legislative governance are beginning to emerge. At the intersection of legislation and futures studies, monitoring appears to be a neglected area of research at both macro and micro levels. In fact, no concrete system has been designed to illustrate the interaction and mutual influence of monitoring and legislation.

The study used the documentary and library research, questionnaires, and the fuzzy Delphi technique to collect and analyze expert opinions. The analysis was divided into two sections: the relations of alternative futures and the conflictual futures of legislation. Initially, the literature on alternative futures was reviewed, and a 5item questionnaire was designed accordingly. This questionnaire was then administered to the experts in futures studies. Next, the literature on conflictual futures in legislative governance was examined, and a 32item questionnaire was designed in the fuzzy Delphi style, focusing on the confrontation and conflict of futures in the field of legislation. This questionnaire was administered in two stages to a range of experts, including former members of the Islamic Consultative Assembly, lawyers, and scholars of governance studies. Then, the shared opinions were collected.

Monitoring is a process that offers the prognosis of alternative futures. The prognosis helps avoid surprises and unexpected circumstances, thereby reducing potential damage. The legislative system and governance in the Islamic Republic of Iran are influenced by various factors. The analysis of future scenarios suggested the possibility of multiple alternative futures. These alternative futures can be categorized into three types: those that conflict and oppose each other; those that interact and cooperate; and those that achieve a balance. Each presents a different scenario for the government and leadership, ranging from a disaster scenario to a desirable one. Understanding the scenarios and alternative futures, alongside preparing to deal with them, can reduce vulnerability. More importantly, understanding the alternative futures of legislative governance allows for the selection and creation of a desirable future. This can not only minimize vulnerability but also contribute to creating a more favorable legislative and governance environment.

The research results suggested several key implications: reinforcing the executive branch while weakening the role and position of the Islamic Consultative Assembly as the legislative body; reinforcing the customary and popular aspect; enhancing lobbying efforts while weakening legal procedures; increasing the prominence of technology and artificial intelligence compared to the anthropocentric aspect; maintaining centralism and the unicameral system; and facing challenges in achieving genuine partisanship and convincing the public to join political parties.

Although, the final judgement is obtained or the binding deed is issued for the wining party or the beneficiary of the deed requiring the claims to be collected or the obligations to be fulfilled by the judgment debtor, undertaken party, or third party, the mere issuance of judgement or drawing-up of the writ shall not lead to this purpose. One of the requests applied by the beneficiary or the winning party is the confiscation of the undertaken person’ properties, which is one of the most important stage of executive proceedings. Indeed, the enforcement of such measures is not easily accomplished by the judicial and registration authorities in Iran, because of multiple challenges, the enforcement operations, particularly with respect to the properties confiscation, is seriously challenging. This descriptive-analytical study aims to elaborate the gaps caused by the legislator’s silence on articulating some of the decrees and regulations on confiscation, the problems, restriction, and/or impedances for confiscation of governmental and public properties as well as the properties possessed by the municipality, embassies, consulates, and enforcement of the religious exceptions, which can be removed by amending and revising the respective regulations. The French Law as well as Islamic law in some Islamic countries are posing with such challenges. However, in French law, due to the establishment of a proper legal and enforcement structure, amending and ratification of new rules, etc. such challenges have been removed or are less challenging.

The purpose of this article is to investigate the possibility of using the capacity of international institutions and organizations in order to preserve the territorial integrity of Iran against the intervention of extra-regional powers in this field. Based on this, the main issue in the research is: How Iran can use the capacity of international institutions and organizations, such as the International Criminal Court, to deal with the possible aggression of the major powers that support the UAE. To use its territorial integrity? Using the structuralist analytical framework, the hypothetical answer of this research is that "the government of Iran has changed its positive attitude towards international organizations and active participation and membership in organizations such as the International Criminal Court and emphasized while winning the trust of the actors of the international community towards themselves, it will prevent the formation of consensus and finally encroachment on their own land". The results of the research indicate that the United Arab Emirates has been able to bring the big extra-regional powers (including 5 permanent members of the Security Council and the Persian Gulf Cooperation Council) with it in support of its demands during the last two decades. Iran should also try to deal with them by changing its attitude towards the issue. The research method in this article will be descriptive-analytical. Based on this, the method of data collection is based on the type of library research and the use of existing documents.

Despite the significance of the possibility of producing new evidence in the phase of appeal in a proceeding, there is no explicit rule in this regard. This issue is controversial among the scholars in the field of procedural law and the judges in connection with the appellate stage of a proceeding. Most of the courts have induced from the laws and regulations which governs this issue, the fact that a judge can make reference to the new evidence in the appellate, such as new investigation, inspection of scene, or new deeds, even if those evidences have been out of the point or have been deviated or have not been considered by the court of first instance due to any reason. Such approach, from the view point of precedent in the field of appeal, has been provoked by the Iranian Law of Civil Procedure (1939) and Article 563 of French new Civil Procedure Code and it can be said that the judicial precedents in this regard have been established on the basis of the same laws. The only limitation thereof is reference to the new evidence for proving those claims which had been under consideration of the first instance court. However, such precedent is not compatible with jurisprudential (feghhi) history of appeal and the very texts of some laws. Thus the conservative approach of the courts in this regard should be taken into account In the process of the future development of legislation. By following such an approach the legislator can be pushed to revert to the previous laws and regulations concerning the appeal, taking into account some adjustments thereto for confronting the prolongation of adjudications.

Today, the disputes over the sale of buildings and apartment units before construction are one of the most common problems in society, which relates to pre-sale or pre-construction contracts. The long duration of construction projects and fluctuations in the prices of materials, especially due to the unstable economic conditions at the present time, is one of major reasons for the increased number of disputes and obstacles in the development of pre-sale contracts in Iran. Regardless of the circumstances which are beyond the control of the contracting parties, many of the contractual and non-contractual issues, due to the multi-dimensional complexity of the pre-sale contracts, cause the disputes between the contracting parties in fulfilling the obligations of such contracts. This paper aims to identify and assess the major factors that cause disputes in contracts related to immovable assets (in general) and pre-sale contracts (in particular).Furthermore, a number of solutions are proposed to prevent disputes in pre-sale contracts. Formal registration of the pre-sale contracts of buildings seems to be one of the most significant solutions. In general, this paper uses a descriptive-analytical research method to identify the causes of the disputes and presents some solutions to prevent such disputes, regardless of the type and nature of pre-sale contracts

Nowadays, disputes in the sale of buildings and apartment units before construction is one of the common problems in society, which depends on pre-sale or pre-construction contracts. The long duration of construction projects and fluctuations in the prices of materials, especially due to today's unstable economic conditions, is one of the important reasons for the many differences and obstacles in the development of pre-sale contracts in Iran. Regardless of the circumstances beyond the control of the parties, many contractual and non-contractual issues, due to the multidimensional complexity of pre-sale contracts, cause the parties to differ in fulfilling the obligations of such contracts. In this study, the factors that cause differences in real estate contracts (in general) and pre-sale contracts (in particular) are investigated. The government and especially the document registration organization can reduce the number of lawsuits in this area by applying appropriate regulations in various areas such as pre-sale registration, adequate awareness, and implementation of the cadastral plan. Radameh also offers solutions to prevent disputes in building pre-sale contracts, which seems to be one of the most important solutions for the official registration of building pre-sale contracts. In general, in this study, regardless of the type and nature of pre-sale contracts, in a descriptive-analytical manner to identify the causes of disputes with the origin of the administrative system and ways to prevent these disputes from the perspective of administrative law.

Occasionally, deliberate damage is needed to prevent heavier losses, in which case all stakeholders should contribute to the loss. This type of damage is called "public damage" or "common damage". In this case, it is sufficient for the assignment of compensation only to prove the imminent danger and the relationship between the verb and the inhibition of the loss. It seems that there is no specific legal procedure except in Article 185 of the Maritime Code, which is not in the formation of compensation, so it can be possible to extend minor laws on the conditions of compensation, given the position of Islamic jurisprudence in our country's rights. Provided joint damage. In the current silence of the law, it is necessary for Article 167 of the Constitution to be recognized in all civil affairs. In this study, the analytical-descriptive method discuss the situation in which the person is responsible for compensation while the three pillars of civil liability (loss, fault, and the cause of the cause between fault and loss) have not been realized simultaneously. The purpose of the research is to identify joint damages as one of its non -contractual compensation and its legislative requirements, because in the current situation, focusing on the pillars of civil liability, the rights of the individual or persons may be trampled on due to the benefit of preventing the damage. It should be compensated.

There is no consensus on the nature of copyright in legal systems; Theory of Personality rights (in German law), theory of debt, theory of natural right and as property (in Britain and the United States in the 18th century and some of the Paris Court of Appeals), property theory (some of the French courts and some of the Egyptian doctrine), the theory of dual nature (in Quebec law, Lebanese law, the Berne Convention and French intellectual property law), the theory emphasizing the economic benefits of intellectual property, the theory of labor law, Special right theory and as a kind of intellectual rights and privilege theory have been proposed and analyzed. Egyptian law is as silent as Iranian Law. In Iranian law, the term intellectual property is often used (property theory), as a result, the theory of two dimensional nature (independence of the nature of material rights from the morals rights of the author and the specific nature of each one) is more correct. So, the property theory is flawed; because it does not include moral rights that are non-financial and related to the author's personality. The type of this article is Academic / Scholarly.

Arbitration Agreement grant an authority to arbitrator for resolving the dispute, but it does not eliminate the jurisdiction of the court. So that, if the action in relation to matters falling within the scope of the agreement commences in the court, it will be resolved, even though the arbitral process would have been initiated. To ensure the commitment of the parties to the arbitration agreement, in the Iranian International Commercial Arbitration Act, the USA Federal Arbitration Act, the UK Arbitration Act, the Uncitral Model Law on International Commercial Arbitration and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards an approach has been recognized, namely stay of legal proceedings, that is considered as indirect sanction for enforcement of the arbitration agreement. This remedy is established when jurisdiction of the court is demurred by the interested party seeking performance of the arbitration agreement; provided the validity of the arbitration agreement has been ascertained by the court. This remedy can be emerged in various orders including order of non-admissibility, order of decline jurisdiction and order of referring the parties to arbitration. The last order has better function than others because, without dismissing litigation, the dispute is referred to arbitration and, consequently, in addition to saving of time and cost, the court proceedings will continue if the arbitral process does not achieve the result.

One of the most important steps of enforcement operations is the high tender and sale of moveable properties of the losing party or promisor (debtor). Although the final objective of the winning party or beneficiary, in obtaining a definitive judgement or drawing up a binding document, is the collection of claims or the implementation of undertakings, if the relevant judgement or binding document is not implemented, the final objective of establishing and implementing the religious and legal justice will not be achieved. The present study, by a descriptive and analytical method, is seeking to answer the question whether by mere issuance of a judgement or by drawing up a document, such an object is accomplished or is faced with some challenges and obstacles. Indeed, the enforcement path, which constitutes the continuance of proceedings process and the issuance of document, , will not be easily attained before the judicial and registration authorities and, due to the multiple problems and impediments in this process, the path for enforcement operations, in particular with regard to the high tender of moveable properties will encounter with serious tardiness and challenges. Many of these problems can be attributed to the Legislature’s silence about articulating some rules and regulations with regard to high tender including elimination of auction regulations in the registration enforcement system, and about questions like the renewal of high tender, the authority competent for determining whether the properties distrained according to the Bylaw for the Enforcement of the Contents of Binding Notarial Documents (1386 SH) should be returned and the time they should be returned , lack of any specification regarding mutual consent on the place and the time of sale in the registration regulations, lack of any criterion for determination of the place and the time where the high tender and the sale must be executed, failing to make clear the concept of ‘local widely-circulated newspaper’ and ambiguity regarding the ‘renewed notice’ and the ‘renewal of notices’, lack of any specification with regard to joint ownership for the sale of movable properties in the Registration Bylaw and, finally, conflicts in certain articles of the Act for Enforcement of Civil Judgements (1356 SH) and in the Registration Bylaw. It is as a result of these problems that the concerns of the beneficiary persons must be understood, as these shortcomings and problems hinder or obstruct the enforcement operations by judicial and registration authorities. On the other hand, since the enforcement of judgements and documents is made through two different notarial and judicial enforcement systems, despite the similarities in the regulations governing, and the methods applied in, the enforcement by either system, there exist many differences between the two. By elimination of the regulations of auction and elucidating the relevant rules of high tender, the law has disarranged both the legal system and the enforcement system of these two legal institutions. Considering the differences between auction and high tender, the elimination of the regulations of auction and its replacement by high tender has created crucial difficulties as well as perplexities. Because, the institution of auction continues to exist in other laws, such as Art. 2 of the Guild System Act (1383 SH) in which the which defines auction by three charactersitics: in-person transaction, cash payment and definitiveness. But, despite the evolutions in the electronic processes in notarial agencies, no authority has yet been assigned for the enforcement of the high tender operations or for the electronic auction. Hence, considering the high prevalence of auctions, in particular the electronic ones, differentiating between high tender and auction and the elucidation of their rules and consequences in the 1356 Act and the 1386 Bylaw, by amending or revising the respective rules, is a necessity. Other problems to be attended include the law’s silence about the second-turn high tender, about the place of keeping and protecting memory and about the definition and instances of ‘local newspapers’, as well as judicial rules and notarial regulations which are inconsistent with, or contradicts, one another in one respect or another. These problems and inconsistencies that make necessary, first, that the Bylaw for the Enforcement of the Contents of Binding Notarial Documents (1386 SH) be given the status of an act of Parliament and, second, that the Act for the Enforcement of Civil Judgements (1356 SH) be wholly revised considering of the long time since it was enacted.

In the Latin word, res means “subject matter” and judicata means “adjudged” or “decided”, and together it means “a matter adjudged”. By the Roman rule “res judicata pro veritate accipitur” is meant a matter adjudged is taken as truth. The res judicata doctrine which had been recognized for centuries by Roman jurists and ancient Indian texts, due to its importance, was introduced to the common law and, meanwhile, became an integral part of the law of civil law countries. Res judicata, which is generally based upon a public as well as a private interest, promotes fairness and prevents the law from being abused and, at the same time, avoids lengthy and wasteful proceedings. In order to assure the public order and interest, there must be an end to litigations. This aim, as well as avoidance of issuing inconsistent judgements or awards, can be achieved through res judicata doctrine, under which parties cannot sue each other again after the final judgment. The doctrine is based upon three principles: no person should be disputed twice for the same reason; there should be an end to litigation and; a judicial decision must be accepted as a correct and valid decision. Since the purpose of judicial and arbitration proceedings is the decision taken to be definite and enforceable, a judge or arbitrator, by realizing the hidden truth in the case, provides a quick settlement of dispute till respect for judgments or arbitral awards would prevent the plurality of the decisions taken as well as the conflict between them. Although the rendered judgment or award will have the effect of res judicata, as soon as they would become final, the nature of this rule varies in various legal systems. The Iranian lawyers have considered the doctrine, in relation to judgments and arbitral awards, as circumstantial fact or substantive rule which, at the same time, is based upon social considerations and is related to the public order. In some Iranian legal books, the rule res judicata has been discussed in the section relevant to circumstantial facts, under the general topic of the civil law of evidence, as an absolute circumstantial fact adverse effect of which is not provable. In the Islamic jurisprudence also the rule is based upon legal circumstantial fact. On the other hand, some Iranian legal writers consider res judicata as a substantive rule which is envisaged on the basis of special social considerations and which, without having any indication of fact or reality, show no established rule. As a result, in spite of the possibility of inconsistency of the judgement or award with reality, re-litigation of the decided case is not possible. It can be said, for the purpose of securing legal, social and economic security, of providing for fair proceedings, of keeping respect for judgements and awards given and bringing about their validity and credibility, of vindication of rights, of settlement of disputes and of preventing from prolonged and time – wasting proceedings, the rule of res judicata, as a social necessity, plays an important role. In civil law countries, res judicata is also firmly established and the nature of the rule is known as irrefutable legal circumstantial fact. As for the requirements relating to res judicata ,article 1351 of French civil code provides that judgment qualifies as such where the parties, cause of action and claim are identical in both proceeding(triple identity test). In this system, the doctrine, having preclusive and conclusive effects, normally refers to claim rather than issue. The preclusive or negative effect bans the parties from re-litigation of the claim which has been decided in the prior proceedings, while the positive or conclusive effect binds the court by prior decision.in Switzerland the doctrine of res judicata is part of procedural public policy and courts must consider res judicata issues ex officio, while in France the res judicata is not part of public policy. The prevailing view is to separate res judicata from any fact-finding power. In common law countries, res judicata is considered as part of estoppel, which may cover both claim and issue preclusion. While the cause of action or claim estoppel prevents to sue all claims which arise from the same event, the plea of issue estoppel prevents re-litigation of a particular issue which the prior decision has established on that conclusion. In order to this rule can be established, the earlier judgment must be final, valid, binding and conclusive decision on the merit. Therefore, this decision should be taken in a fair hearing and, according to the doctrine; only the parties to the proceedings can benefit or be bound by it, in subsequent proceedings. In fact, not only the parties to the claim must be the same, but also the subject matter of the claim and cause must be identity. In both legal systems of England and the United States the nature of the doctrine is similar and is considered as an absolute rule of the law of evidence which may, sometimes, find works similar to that of the rules of substantive law. In this system, the doctrine of res judicata carries a fact-finding value and restricts either party to “move the clock back “during the proceedings. The scope of this rule has been widened with the passage of time and, in fact, the U. S. Supreme Court, in its judgements, has expanded the areas of applicability of the rule.

The appellate court shall hear a case which has been heard by the court of first instance and, in the nature of the case, has been voted on and appealed to. The appeal stage is the time when the higher court is asked to reconsider the lawsuit filed in the initial stage, as a result of which the application of the first court is somewhat revised. Accordingly, because Articles 7 and 357 of the Procedure general and revolutionary courts cod in civil matters require the involvement of third parties who are not present at the initial stage and must be prohibited in principle, this principle is sometimes accompanied by exceptions. These include third-party entry, impleader,  attachment of relief and temporary order. The time to file a counter-claim in the first instance is until the end of the first hearing. Exceptionally, if a third-party entry lawsuit and impleader is filed at the appellate stage, or the new claim is legally heard, the defendant can be sued in the counter-claim. Article 362 of the Code of Civil Procedure of Iran and Articles 563 and 566 of the Code of Civil Procedure of France, ignoring the principle of two-stage proceedings, have prescribed some examples of new claims in the appeal stage.

Fairness in the sphere of law, which is used, by a judge or an arbitrator, in resolving disputes, in general, refers to one of two concepts of "equity" or "ex aequo et bono". The first concept is a general principle of law, itself consists of three types with different kinds of functions, all three of which are legal norms and, in deciding a case, is considered as part of law, recourse to them often does not require consent of parties to a dispute. Depending on the type of defect in the norms, infra legem by providing an interpretation in accordance with existing facts, the function of moderation, praeter legem which through the filling of legal gaps, has a supplementary function and contra legem by abandoning the governing law when conflicting rules, plays the replacement role of legal rules. Despite the important role of principles of law in the settlement of disputes and its application in international law, this principle has not been addressed in domestic law.

Distinction between airspace and outer space, despite its theoretical benefits and practical effects, has been controversial. The legal system of airspace is based upon sovereignty principle of territorial state; contrary to that of outer space which is based upon freedom to use. Where does space begin or at what altitude does airspace end, determines the domain of states powers in exercising sovereignty over the space. The present study examines with a critical approach the criteria of this distinction, the status of outer space ownership; comparison of airspace with sea area. By resorting to general principles of law, due to absence of an accepted legal rule, reliance must be made on incontrovertible criterion under which, the lowest point of an orbital flight to be considered as the beginning of outer space, and, the maximum altitude of a plane capable of flying as the airspace located in the air territory. Given the rules governing outer space are specific regime, where there is doubt as to state sovereignty, its existence should be presumed. Therefore, the area between airspace and outer space is governed by air law.

The aim of this study was to re-examine the Quranic and jurisprudential evidences of selling self-help as one of the Remedies For Breach Of Contract for the purchase of medical equipment.

This research has been done by library studies and descriptive-analytical method. By referring to Quranic, narrative and scientific texts, the necessary information has been obtained and analyzed.

One of the problems that has arisen in recent years in the field of medical equipment is that for various reasons, including oppressive sanctions, some buyers or sellers of Iranian medical equipment are not able to pay the price or the goods and this factor causes uncertainty. The incidence of material damages and losses to medical equipment activists. The main question of the research is: "What is the ruling on Quranic and jurisprudential arguments regarding the sale of self-help (resale) as one of the Remedies For Breach Of Contract for the purchase of medical equipment?" The findings of the research indicate that the requirements of the holy verse "… فمن اعتدی علیکم فاعتدوا علیه بمثل ما اعتدی علیکم…" (Baqarah: 194) and verses 40 of Surah Shura and verse 126 of Surah An-Nahl and other jurisprudential narrations and rules, including the rule of no Loss principle in Islam and the Retalitation rule, as well as legal provisions in similar matters, not only do not contradict this, but also accept it. However, the principle of agreement must be kept and rights of the other party must be taken into account in this regard, and according to the holy verse "… لا تظلمون ولا تظلمون " (Baqarah: 279), neither party to the deal should be wronged or abused.

Medical equipment contractors can sell the property to another and exercise their rights in order to prevent further damage and uncertainty in the fate of the contract. However, this right and authority should not lead to "oppression", "loss" and "injustice" to the rights of the other party, but from the point of view of the Holy Quran and Islamic traditions, justice and fairness should be observed and the rights of the parties to the transaction should be exercised to the maximum.

Equity, for resolving disputes by a judge or an arbitrator, is sometimes used as a general principle of law ("equity") and sometimes as the high moral principles that can put aside the law ("ex aequo et bono"). A part from the practical effects of distinction between these concepts, it is settled that they are different from each other in several aspects. The origin of equity, in its present sense, dates back in national laws to the Roman Germanic system of law to 1625, on the basis of the Aristotle's thoughts in this regard, and in international law to 1920. Equitable solution, on the basis of ex aequo et bono relates, in domestic law, under the influence of Uncitral Arbitration Rules, to 1976 and, in international law, to 1920. Equity is usually a legal norm which, in decision making, is taken into consideration as a part of law. While the nature of ex aequo et bono is a judicial discretion on the basis of which the judge, disregarding the law, decides about the matter. There is often no need to the consent of disputing parties regarding equity, but use of ex aequo et bono, in any case, requires the consent of the parties. Equity in the law of Iran, except within the context of Art.27 (3) of the International Commercial Arbitration Act, has been used as a general principle of law, often implicitly, in the law and legal precedents

Iran’s legislature, influenced by the law of Islam and moving along the reverence for life, has criminalized all crimes involving deprivation of life, whether intentional or unintentional, and provided for them both criminal and civil sanctions. Nevertheless, some legal rules, especially in the Islamic Penal Code of 1370, are in disagreement with the observance of the human life. The most important of these rules, among others, are: devolution of enforcing penalties involving deprivation of life to private persons in Article 295, note 2, and Article 266 of the Islamic Penal Code; existence of the penalty of Rajm (stoning to death) in Article 83 of the Code; execution of persons under the age of 18 and ambiguity in the Code regarding the deserved punishment for persons accused of mercy killing. These faults have induced the legislature to create some modifications in the Bill of Islamic Penal Code of1390 in which: the enforcement of penalties involving deprivation of life has, as a general rule, been devoted to the courts; no express mention has been made to the penalty of Rajm; ambiguity regarding the deserved punishment for persons accused of mercy killing has been avoided and some particular limitations have been attached tothe enforcement of penalties involving deprivation of life against persons under the age of 18. Despite these improvements, the Bill is not devoid of deficiencies and the present study is intended to clarify its faults and, at the same time, to recommend some positive suggestions.

Mitigation of violence and protection of fundamental human rights, in time of war, constitute the main object of international humanitarian law. The subject of present study is to determine whether or not, apart from international obligations, the duty to respect some basic principles of this law results directly from the Constitution of the Islamic Republic of Iran. Any answer to this question, first of all, necessitates establishing the existence of relationship between humanitarian law and constitution on which manifold reasons can be raised regarding any constitution, in general, and the Constitution of Iran, in particular. It is in the light of this connection that the most important principles of international humanitarian law have been expressed in the Constitution of Iran, the rights which are non-derogable and have been recognized for application in emergency state of war, whether international or non-international.

Although there is in neither conventional nor customary international law any comprehensive or universal prohibition of the use of nuclear weapons, it was absolutely possible for the Court to conclude, in the light of the documentary evidence and factual data placed before it, that recourse to these weapons would be illegal, in all circumstances. The article tries to examine critically the World Court’s refusal or its inability to come to such a conclusion. Apart from some shortcomings and criticisms attached to the Court’s views, in the advisory opinion, it appears that the most cardinal factor in its abeyance originates from the role and place which it gives to the principles and requirements of international humanitarian law. While there is no doubt that these principles and rules must be respected in all circumstances, the Court cannot exclude the possibility that certain uses of nuclear weapons may, in very limited and exceptional situations, be lawful even if they are contrary to the principles and requirements of international humanitarian law. Proving the invalidity of this view, according to the contemporary international law, constitutes one of the main concerns of the present study.