نشریه قضاوت
پیاپی 90 (تابستان 1396)

Joint venture, as an optimal legal arrangement for business in the group, has always been the focus of attention of investors. Because Joint Venture is more than a subject-matter contract, it's in fact a legal model and technique for allocating costs and reducing risk in an investment. Since in our legal system this type of contract has no specific place in the laws, the legislator tried to overcome this problem in the 5th development plan, with the provision of article 107 and the identification of the economic group with common interests. At the first look, it seems that this new article creats no new entetity and it just provides more limitations and restrictions to maintain the interests of third parties in forming a group, but after paying more attention, it can be seen that the legislator identified a new economic group with common interests as a new entetity. The most important subject that shall attract the attention of parties of a joint venture, even in time of initial negotiations and prior to forming joint venture, shall be the limits of responsibilities of each party against each other and also against third parties. In joint venture contracts, normally an article shall be dedicated to this subject and the limits of responsibilities of partners against each other and also third parties shall be determined. However, in some cases the contract has no article in this regard. In this case, the limit of responsibilities of partners shall be determined based on the laws in location of forming the joint venture. Therefore, it seems that in accordance with Article 403 of the Trade Code and the principle of relative responsibility, if the governing law of the contract is the laws of Islamic Republic of Iran, the responsibility of partners against each other and also against third parties shall be relative responsibility.

Under Islamic criminal law, hadd is a punishment for which the grounds for, type, amount and conditions of execution are specified in Shari’a. In fact, when a given crime and its punishment mentioned in Shari’a explicitly, unlike Ta’zir, legislator is not allowed to revise or change such crime or its punishment according to expediency or existing circumstances and conditions, but there is a controversy among jurisconsults and lawyers in this regard. This article tries to analyses and reviews the opinions of those believing in possibility of mitigation of hadd sentences or those who believe in so-called “updating” such commands, according to legal and Shari’a bases and also from the perspective of criminology while maintaining the principle of immitigability of hadd. It is also indicated that under Islamic Penal Code of 2013, legislator shows its enthusiasm, comparing to previous Penal Code of 1991, to introduce mitigation to hadd.

Aid and Abet in an Offense is to help someone, the principal or main perpetrator(s) of the crime - who have been directly involved in material element of the crime - as referred to in the law. To fulfill Aid and Abet, it is necessary to determine the conditions in the law. Aid and Abet is not an independent crime and borrows its status as a crime from the original crime. Therefore, the role of accessory perpetrator in committing a crime is ancillary, because such perpetrator has no intrusive mass in the material element. In this regard, pursuant to Iran Penal Code and jurisprudence, the punishment of accessory perpetrator is milder than principal perpetrator. However, in penal codes of some countries, such as Afghanistan, Egypt, France, United Kingdom, United States, and ... the punishment of accessory and principal is identical. This research looks at the basis of such difference of opinion, and see which one is closer to criminal justice and jurisprudence.

The rules of the legal system of our country are based on Shari’a law, according to which no criminal act is to be left unpunished, yet the limits and manner of the execution of punishment are not identical for all people, but there is always a question about whether it is possible to determine punishment for child? The present study, tries to answer the said question while focusing on the precise concept of the child in the language of the jurisprudents. Based on the findings of this research, according to Shari’a law, one of the conditions for the execution of punishment and having a criminal responsibility is to reach adulthood, which is one of the general conditions, so a person who has not reached puberty is not punishable. A non-discerning child is exempted from criminal liability, but is considered to be a guarantor in a court order. The child's responsibility in criminal matters is relative, but a discerning child is punishable by law and by Shari’a.

Concealment and retention of properties resulted from the commission of a crime is an act which in the Romano-Germanic and Common Law systems is more or less subjected to criminalization by legislators of different countries and therefore punishable. This offense which is a kind of mediation in the illegally generated proceeds after successful commission of the crime is a prelude to actually making gains from the property subject of crime and can itself indirectly prepare the ground for encouragement of criminals, giving them the incentives to repeat their offenses. Hence, in an effort to thwart the rational calculations of criminals for selling and making profit out of the illegally acquired properties and objects, and curb its rapid growth and discourage the potential offenders, the legislators with concrete restrictions try to criminalize all sorts of handling such properties, either by the perpetrator of the original crime or by others, and punish the perpetrators. However, while there are the shared views and concordance between the legal system of England as the cradle of the Common Law, the French legal system as the most typical representative of the Romano-Germanic law, and even other legal systems, converging around the idea of “constraining and crackdown of the economic transactions on the properties obtained by crime”, the approaches of different legal systems about the subject and criminalization of concealment of criminal property have tangible differences. Unfortunately the legal system of our country has not been performing well and only in regard to certain offenses, such as theft, criminal procedures have been incompletely introduced. It is obvious that the existing laws, in the current state, lack the adequate preventive potential. This paper, based on the existing theoretical background and the literature on concealment of property obtained by crime, studies this offense in the context of the Iranian legal system with a comparative look at the English and French legal systems through which various aspects of this crime in the three legal systems in terms of their similarities and discrepancies are discussed.

Investigator is a title for two officials and is an authority that has neutrality of judiciary, specialized investigative and police skills and also the features of grand jury judges. Although investigator is no more than one title but it includes two sets of different judicial and investigative status. The criminal procedure begins with the discovery of the offence and then, the prosecutor as the representative of the society prosecutes such offence. Investigation or collection of evidence after such prosecution is conducted by investigator. Afterward, the case enters into court proceedings. Iran Code of Criminal Procedure, following the French model, has been designed on the basis of existence of investigator, while global tendency is to remove this institution from the criminal proceedings. According to Code of Criminal Procedure, on the one hand, the investigator attempts to collect evidence based on his investigative status and on the other hand, decides about arresting or releasing of individuals based on his judicial status. According to Code of Criminal Procedure enacted on 2014, the investigator is subordinate to prosecutor. Substantial part of orders issued by investigator needed to be confirmed by prosecutor and without confirmation of prosecutor, orders of investigator has no legal effect. Even, the injunction order has no effect until approved by prosecutor. In fact, investigator is a neutral judge who must respect neutrality in collecting the evidence in accordance with law and follow the prosecutor. Such judge is required to prosecute all offences without exercising his discretion.

The survey of new family protection Act shows it has certain innovations and initiatives and, at the same time, shortcomings in various areas of family law and family litigation. Presence of female judge, consideration of nomination and damage resulting from it, creation of jurisdiction for family court on donation of embryos and change of sex, care of abandoned children, consideration of re-marriage issue, establishment of counseling centers, obligation to register a temporary marriage and prohibition of presence of children in family court, among others, are the innovations of above mentioned Act which is discussed in this article along with the gaps and shortcomings of it.