فصلنامه مطالعات حقوقی
سال هفتم شماره 2 (تابستان 1394)

Nowadays financial rights such as goodwill and patent together with tangible properties and profits constitute a significant portion of assets and possibility of their transfer and exchange is demanded by the capital market. Undoubtedly، sale is an assumptive and most common tool for transferring properties among people. But، can we use this tool for transferring financial rights? Most jurists، with the argument that sale is appropriation of a tangible property against a consideration، believe that sale is just a tool for transferring tangible properties and hold that sale may not be used for transferring financial rights. Some of them، arguing that rights may not be held properties، even believe that financial rights cannot amount to consideration in sale. However، most contemporary jurists hold these arguments insufficient and believe that financial rights or waiving them can be held consideration in a sale. Even a few jurists such as late Imam Khomeini hold that right can be sold. It seems that in contemporary Iranian law right or its waiver can amount to consideration in a transaction and sale of rights is permitted.

Most of lawyers have recognized five elements for common heritage of mankind in outer space. Outer space، moon and other celestial bodies couldn''t be subject to possession. Also resulting interests of them should be equitably distributed among countries، so that regard developing countries activities beside interests of developing ones. The Interest of mankind as one of another elements indicate us that economic exploitation of space should be compatible with mankind interest، shouldn''t impair area environment and results from space researches should be accessible for all to use، too. The materialization of this concept in outer space is subject to establishment of an international system for its management and until happening this، mentioned element has been come to pass with international cooperation in various dimensions. Fifth element - Peaceful use of outer space – that its interpretation in meaning of non-military use (opposite non-aggressive use) is more correspondents with thesis of common heritage of mankind، prepares the way for materialization of other elements.

One of the issues in the field of medical law is physician''s acquittal of responsibility in order to negate the liability of the physician. Shi''ite jurists are disagreeing with the responsibility of a proficient and innocent physician who proceeds to treat the patient with his consent. Some have ruled not to take them responsible and believe although quittance is legitimate، it is useless. But the reputed view believes the physician is responsible and the necessity of acquitting from the patient is proposed to release him from such a heavy burden. This article follows the survey of jurisprudential and legal reasons of the latter. The details of the reputed view seem negotiable، as it proposes quittance as the only way of releasing the proficient and innocent physician; and in case it was not obtained، he is found responsible anyway. From the view point of the authors the innocent responsibility of a physician has not a stable basis and is not consistent with the social interests. As a result، if a physician، observing the theoretical and practical standards alongside achieving consent of the patient، follows the treatment، he won''t be responsible in this regard. The new Islamic criminal law acted in 1392 (2013-2014)، has preferred the same viewpoint. So the quittance which is provided by this law has not practically any effect on the physician''s civil liability.

Killing or helping to kill a patient who is suffering from unbearable pain (Euthanasia) may be involuntary or carried out following the patient's request. Involuntary euthanasia is a type of intentional murder and follows the same rules; however, when euthanasia is voluntary, the offender is not responsible for blood money or retaliation. Under normal conditions, the offender of an active euthanasia or the passive euthanasia performed following the patient’s request, is only sentenced to the act committed (Tazir); But under necessity conditions, the action may not even be considered as a crime. In indirect euthanasia, if the consequence were attributed to offender’s action, the same rules would hold as direct euthanasia; otherwise he is considered as an accessory.

One of the challenges of recent years in the field of the environment has been environmental pollution resulting from wastes. Combating this pollution cannot be done only by States. High costs of environmental projects، the need to use advisors and experts، and the necessity of adopting internationally binding laws are among the main reasons that have persuaded States to work and act together in the framework of international organizations in order to preserve the environment against pollution resulting from wastes. It is in this context that this paper examines the role of international organizations in the preservation of t he environment against wastes and also deals with challenges facing these organizations in this regard. This paper concludes that despite barriers and limitations international organizations have been experiencing، they have reasonably acted for the protection of the environment against wastes. For example، references can be made to the adoption of conventions related to wastes، such as the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal (1989) and activities of the United Nations Environment Programme (UNEP) in the management of wastes in certain regions. It should be noted that if international organizations are going to play a more effective role in the management of wastes، there should be more cooperation between industrial countries and developing countries، especially in transfer of knowledge and technology، exchange of experts، and allocation of financial resources within these organizations.

The Article 688 of the Islamic criminal act that has mentioned threats against public health that is as a crime and designates its punishment. The example of threats against public health include the "polluting drinking water or the distribution of polluted drinking water", in such a way that the mentioned examples are related to water and soil pollution, solid waste, illicit livestock butchery, and agriculture crops pollution by illicit use of wastewater. In the analyses of this article the following subjects have been extensively explained to provide a correct understanding of this article according to criminal law principle: Mens rea, Actus reus, and legal factor of crime, authorities and individuals who report and recognize the crime, being conditioned to have criminal result, being deliberate, and other characteristics of the crime of the threat against public health. Then, some ambiguities have been identified in carrying out the article. One of the main ambiguities is the Mens rea within the crime of this article. To know whether the intention and awareness is essential to as certain this factor or the criminal mistake resulting from carelessness to Environmental Considerations as certain this factor. Distinction between the threats against public health and environment pollution and prison punishment other challenges in carrying out are this article that have been analyzed and studied in this research.

The acts of the State in administrative law، according the criterion of the method، are divided into act of authority and act of management. This division is used in the different areas of administrative law such as the determination of the competent judge، the rules of civil liability of the state، etc… In the system of administrative law of Iran، the criterion of the act of authority is used in the above fields. But we have shown in this writing، that the act of authority as the criterion of legal competence and the rules of civil liability of the State is canceled، and also in the areas of criminal liability and administrative organization and civil service، despite the legal credit، this criterion is without any efficiency because of vagueness in its concept، and its effect is limited in the scope of making politics.

The application of penal guarantees before specialized administrative courts، as part of the right to a fair trial، could go against the fundaments and the practical and technical considerations of dejudicialisation current since this could lead to a kind rejudicialisation of the proceedings before these، non - judicial bodies called. Based on this observation that there are two opposing requirements، somehow، we should respect these two requirements so that the considerations of the two is added and followed a balanced way.