نشریه حقوق تطبیقی (نامه مفید)
سال دوم شماره 2 (پیاپی 4، پاییز و زمستان 1394)

Crimes against person that include murder, assault and battery are categorized under aggressive crimes. In intentional crimes against person, death penalty is the sanction equal to the committed act and if death penalty is not possible or in unintentional crimes against person, blood money (Diyah) is predicted. In this situation, the victim may play a main role in committing crimes resulting death penalty. Therefore, we can relate primary victimology and crimes resulting death penalty in a legal – criminological way, because the victims may play a determining role consciously or unconsciously. The teachings of primary victimology can be seen in gender as a biological factor, the relationship between victim and offender in a father-child form, in the psychological status of victim, in his consent to the crime committed and in the effects of other potential factor in creating victims. So, in this article we attempt to study the effects of primary victimology in Islamic criminal law of Iran 2013. Also, we analyze rulings of courts in order to clarify how the judges of criminal court consider the discussions and topics of primary victimology.

Compensation for losses caused by the adverse events is one of the important issues in private international law. Many countries have specific regulations on this issue and clarify the civil liability issues. Taking a quick look at the related regulations shows that many of these countries have followed English law. Similarity rule was being applied in England for many years, but by enacting the rules of private international law, the mentioned rule was replaced by lex loci delicti commissi – the law of the place where the tort was committed-. There is no specific law for determining the law governing civil liability in Iran. Therefore, like what is done in English law, Iranian legislators can rely on lex loci delicti commissi and enforce the appropriate law in exceptional cases.

In the past, there were different views and ideas about civil liability and compensation, therefore there might have been some negligence towards the rights of injured parties; that or the compensation might have been left unsaid, or with justifying the incentives of causing injury the injured person would be included in beneficiaries of public interests. Facing new ideas, nowadays these views have faded and general belief is that no harm should be left uncompensated In this regardthere are various theories about the basis of the responsibility of the owner of vehicle. Two of them are more prominent: presumption of fault and strict liability. In car accidents, industrial and social developments have raised the acceptance of strict liability. In addition, Islamic Jurisprudence has chosen a different basis, which is strict liability rather than fault assumption more than a thousand years ago. Having in mind the forth principle of Iran' s constitution which states all laws and regulations must be based on Islamic Law criteria; here the absolute liability theory is preferred.

Should there raise a conflict between the customary rule of States’ Jurisdictional Immunities and a peremptory norm of international law (Jus Cogens), the latter shall prevail. However, the World Court has recently invalidated the rise of such a conflict (Jurisdictional Immunities, Germany v Italy (2012)), maintaining that the rule of immunity is concerned with procedures, while rules of Jus Cogens discuss the substance of rights and obligations. The Court also held that since Germany’s alleged violations were related to the conducts of military forces during the course of armed conflict, thus other exceptions to the rules of State Immunity (Territorial Tort exception) shall not apply. This article will criticize the first reasoning of the Court, arguing that such an absolute distinction between procedures and merits, while maintaining the priority of the former, will lead to absurdity. Then it will turn to the second line of reasoning of the Court and posit that the latter shall be read narrowly as such. The problem of conflict between the peremotory norms of international law and rules of immunity shall be studied in light of victims’ rights, or will otherwise be null. With this orientation, and in keeping with the contingencies of peaceful coexistence, cooperation and harmonization of States’ conducts, this article will propose establishment of international arbitration bodies to which the victims shall have the right to submit cases of torture and seek reparations. Such mechanisms, based on cooperation of States to maintain the fundamental norms to protect human dignity, might show promising in respect to various factors relevant to this question.

Identity theft that is one of the most critical crimes that has no common and acceptable definition presented for yet. Study of the elements of this crime, depends on its concept and meaning. In this article, it is attempted to define identity theft, and also to define its similar concepts, such as counterfeiting and identity fraud, in order to clarify that what is commonly mentioned as identity theft (possession of another' s identity without their consent) is actually part of a larger concept which is identity fraud. And this, in turn, is part of a larger series of crimes related to identity. A general concept that all criminal affairs related to identity are a part of an identity, is the main subject or instrument is for committing these crimes. One of the regulations that have criminalized this issue is the United States Identity Theft and Assumption Deterrence Act. Therefore, the constituent elements of this crime and the mechanism of accessing information will be explored and a comparative study of similar titles in Iran law will be done.

Convention on International Sales of Goods has provided particular arrangements for the recovery of damages in articles 74-78. However agreement on damage or damages clause does not have a clear status in the Convention. So that application or rejection of this clause has caused much disagreement within the framework of the Vienna Convention. On one hand, respecting party autonomy and application of Convention' s general principles and on the other hand reference to countrie's domestic laws while applying article 4 of the convention causes different results for the agreement between the parties. World-wide approach and minding the uniformity in the international trade - as one of the main purposes of the Convention - is not compatible with reference to domestic laws. Respecting contracting partie's agreement requires admission, interpretation and application of agreed damages clause based on the Convention' s general principles and international trade Custom.

Social interests lied in the use of genetic information for prevention and treatment of diseases and their economic benefits in non-medical areas such as employment, insurance, judicial procedures or educational and research institutions are undeniable. Yet, these utilizations have posed some legal and moral challenges with regard to genetic privacy and unfair discriminations. Solving the conflict between genetic privacy and public mutual interests requires an appropriate way towards equalizing the respect of privacy and the essential access to genetic information. In this essay, the main grounds of this conflict and the positive/negative consequences of enjoying from genetic information in various fields are considered. To solve the conflict writers suggest enacting suitable laws and regulations and promoting public trust and awareness among citizens.

The United Nations Security Council is the most powerful institutional body ever established at the global level. In today’s international law, there can be little doubt that the international community as a whole attaches special importance and effects to peremptory norms of general international law (jus cogens) and endows them with high status. The interaction between those highranking norms and the powers of the Security Council is therefore among the most central issues of international law Respect to fundamental Human Rights is jus cogens. The Security Council can never be entitled to infringe upon human rights embodied in universal human rights instruments Kadi decision has given preference to human rights standards over United Nations Security Council (UNSC) sanctions stemming from the Resolution 1267 (1999) sanctions regime. This study subsequently illuminates how the respective human rights limits to the Security Council’s enforcement powers could be enforced by judicial review.