مجله تحقیقات حقوقی
پیاپی 81 (بهار 1397)

building's pre _ sale contract is one of the legal phenomena that have been provided different opinions about it . various type of Sale including Forward sale , conditional sale , unconditional sale , sale in the form of a manufacturing contract , innominate contract and nominate contract are the most famous templates for this contract that raised by legal experts . Although when the Building Pre _ sale Act in 2011 enacted , the » innominate contract « was discredited but the » contract of sale « theory and the » nominate contract « theory are the most famous templates for nature of building's pre - sale contracts .in this article , While addressing the mentioned theories and analysis and critique the reasons each of them , Will be reinforced the theory of independence and being nominate pre - sale of building's contract with reasons . . .

The term norm inflation appears to be a generalization, towards all sources of law, of legislative inflation, defined as a disproportionate increase in the volume and length of legislation. As with monetary inflation, the overabundance of sings risk causing their devaluation (Carbonnier). Is this a benign illness or the symptom of systemic pathology of the legal system? Is it specific to our time or has it been known before? Are the effects visible throughout the law or confined to particular areas of it? If norm inflation produces undesirable effects that deserve our attention, we should look at this scope, now and in the past, its foreseeable effects, its possible causes and remedies that might counter it. This article looks at the phenomenon of norm inflation, with reference mostly to Canada, France, the UK and the USA, and with a glance at the Iranian situation. The article demonstrates how economic analysis can be used to broach the matter.

With the development of international criminal law in the light of the establishment of military courts after World War II, international criminal tribunals for the former Yugoslavia and Rwanda, and subsequently the International Criminal court, various objectives were stated for the international criminal justice system that are beyond the traditional goals of punishment. In addition, a new concept of traditional goals is considered in international level. Recognition of these objectives is important because it will lead to better understanding of the system mechanisms and how they operate. It will also be clear that over the years, how international criminal tribunals have succeeded in achieving the stated objectives. Through investigating the aims of international criminal law in instruments and practice of international criminal tribunals, this paper has come up with the conclusion that traditional punishment goals have priority over other goals, such as recording history and post-conflict reconciliation, in the international criminal justice system, but the importance of them depends on stages of the criminal processes so that retribution and deterrence play a more significant role in sentencing as well as in the rehabilitation in the enforcement of punishment.

Terrorism is one of the most serious threats to peace, and ISIS (The Islamic State of Iraq and the Levant) has been introduced as a global and serious threat to international peace and security, as determined by Security Council. The legitimacy of use of force against non-state actors such as The Islamic State of Iraq and the Levant (Known as ISIL) which has seriously violated human rights and humanitarian rights is evolving and not yet well established. In fact, the position of ICJ (International court of justice) and individual opinion of ICJ judges is different from the resolution of Security Council, doctrines and state practice. However developments after 9/11 ( 2001 ) and also the situation in Iraq and Syria and serious crimes by ISIS and other terrorist groups has gradually convinced the Security Council to consider the legitimacy of use of force and self-defense against terrorist activities of non-state actors such as ISIS.

In the recent decades, the production and the supply of goods and services are competitive issues. In this circumstance the role of ensuring the safety of goods is rapidly and completely growing. This role has great importance from an economic (encouraging customers to purchase goods) aspect and legal perspective (protecting the rights of the consumers).Considering this reality warranty is offered in many very different kinds. Sometimes some sort of good is important for choosing warrantee by producer. In some cases the expression " Warrantee" is used instead of "Guarantee" while these two distinctive concepts do overlap with each other in some other ways, they have some differences.Guarantee can also affect the efficiency of the economic institution so not only it is important to protect consumers, but also it has great importance for economic analysis there fore it's function has significant and specific role in increasing the efficiency of the selected type.

Conformément à l’article 38 de la modificative et étendant le règlement des contrats municipalité de tehran aux métropoles , les litiges provoqués des contrats , sujet de ce règlement , se posent devant le conseil d’administrative composé de représentant du conseil municipal , de maire, de gouverneur, de contractant et d’un juge .le jugement prononcé par le juge est obligatoire. selon de l’ancienne disposition, la décision rendues du conseil municipal, considéré comme une pièce jointé au contrat « annexe », tandis que le conseil municipal selon des nouveaux règlements considéré comme une juridiction administrative de laquelle la décision prise s’appelle le jugement et sera susceptibles de pourvoi devant la cour justice administrative. La compétence du conseil ne relève pas des litiges relatives à d’autre contrat, ansi que de litiges relatives à la validité ou l’effet après la résiliation, l’annulation, la remise volontaire. Ces sujets sont susceptible d’attribuer devant les juridictions judiciaires.

In the international Human Rights, the prohibition of torture is categorical and unexceptional. In Islamic jurisprudence, prohibition of torture is a well-known axiom. The undconditionality of the rule, however, is under doubt and controversy. According to some jurists, in case of conflict between prohibition of torture and a more important precept, the prohibition of torture may be overridden, and therefore torture might be permissible under certain circumstances. Likewise, at the international level, some states have tried to justify torture in certain circumstances under the pretext of fighting terrorism. This paper, based on some jurisprudential principles such as the principle of human dignity, the principle of necessity of respect to all human beings, the lack of any evidence in hadiths related to torture suggesting exceptionability of prohibition of torture, the presumption of innocence and incredibility of any confession induced by torture, argues for unconditionality of prohibition of torture. In addition, the article criticizes arguments suggested to allow torture in certain cases, and concludes that they are not sufficient

Marriage as the lawful relationship between men and women is an acceptable social event in all human societies even though there are vast differences in how it is usually realized. It is based, in every society, on some principles which make it legal and if they are ignored the relationship changes to adultery. They present study seeks to explore Sharia laws in this relation and considering the famous tradition " There is marriage for all nations" explain the systematic framework considered for it in Islam. Two basic principles are discussed: a) systematic framework for marriage as the lawful relationship between men and women and for its rules and consequences and b) Formalizing marriage as the lawful relationship between men and women to make it in line with reasonable social norms. The study aims to show that Islamic rules are not strict inhibitors of marriage but actually conform to the basic principles acceptable in all other nations and ideologies.

Within the context of legal recognition of minorities, there are several critical views concerned with different aspects of minority rights. Aylete Shachar who is considered as a feminist law scholar presents an intersectionism theory according to which one must not ignore different aspects of people’s identities in the context of Legal Multiculturalism. According to Intersectionism theory, comprehensive recognition of minorities might lead to the violation of different minorities within those minorities which were formerly recognized. The reason for this could be the notion that legal recognition instruments usually do not consider various internal frames in the minority group. Therefore, leaders of minority might have urged the group identity in order to ignore other aspects of the minority members’ identities. For example, regulations of minority membership might deny the membership of a woman who marries a man outside the group. However, for a man who marries a foreigner woman new membership of his wife would be considered.

Lawyers as a free profession ought to pay their tax annually and before 1956 had not any obligation to pay tax in part payment by buying timber and attaching it on their act of attorneys or court’s process verbal. After stipulating this obligation, the question of nonobservant of this duty and its sanction posed on lawyer’s attorney power. Law of Direct Tax, 1988, article 103 of that Law added a phrase to its prior laws that the attorney will not accepted in courts ‘’under Civil Procedure Rules” and referred the sanction to our Law of Civil Procedure but, before this year as after that, we see many conflicts between consultative views and judgments. Some courts have held that nonpayment of on account payment is equivalent to non-representation and some others have held that the act of action is incomplete and the other courts have held that the representation is not exist but lawyer’s act is admissible. In this article we have essayed to analyze and finding a solution about the nonobservance of duty of in part payment.

Pragmatism is an approach which focuses on satisfaction of consequences instead of essential elements of a phenomena. The definition guide us that pragmatism effects a widespread influence on social sciences. The pragmatic movement on law began in fist twenty centuries and have raised until today. This article is seeking to study the effects of pragmatism on judicial interpretation. For this aim, we list the elements of classic interpretation and compare or adjust them to new approach. In classic view, the judge must find truth but a pragmatic person does not believe in a given result as true one; all approaches, even some conflicting approaches may be true. Classic interpretation trends to textual interpretation and systemic analogy. Systemic analogy make these dimensions: essentialism, sovereignty of legal principles and logical interpretation. On the contrary, legal pragmatism is guided to contextualism, antiessentialism and induction. this comparison guide us to a novel nethod of interpretation

The subject of international law’s sources is one of the most debateful subjects in international law. Article 38 of International Court of Justice statute has been enumerated the international law’s sources. Unilateral acts of states haven’t any status between these sources but the states have shown repeatedly that they accepted some obligations through these acts and know themselves beneficiary in related to unilateral acts of other states. There are similar positions about international case law. This situation has led to be mentioned the unilateral acts and declarations of the states as one of the international obligations. But, all unilateral acts are not as such. The doctrine, states practice and case law have explained some conditions for the validity and the binding of unilateral acts, then with help of these conditions is separated legal acts from political ones. Thus, it seems the unilateral acts of states, under certain circumstances, have binding effects.

On the basis of a personal nature of wrongful act, every internationally wrongful act of a State entails the international responsibility of that State. This principle does not provide an appropriate response on the succession of States as to the international responsibility of the predecessor state. If the international responsibility to be forgotten because of absence of doer state, internationally wrongful act will be released without reparation and the right to reparation of injured state will be ignored. Current practice of states show that has been very limited application of the doctrine of non-succession in International Responsibility, but in some cases including existence of doer state (predecessor state) and even on the assumption that there is predecessor state, it is could also raised the subject of succession of States in international responsibility by the consent of the successor state, the nature of territoriality of wrongful act and the principle of unjust enrichment. with using norms of law and state practice in different types of succession of states, this Article is to Endeavour to Responses this main challenge whether international responsibility of predecessor state before the date of the succession has been transferred to the successor state?

In countries, which have not yet realized all the needs and necessities of large industrial societies, it is not uncommon to find people who question the nature of Air Law or deny its originality and independence. Helping to understand the concept and features of Air Law and the need to pay more attention to this branch of law in Iran, is the subject of this research paper. To this end, 14 features of Air Law, were reviewed and the recurrent questions about its nature have been clarified and answered. In Study of the nine features (positive features), the originality and independence of this branch of law has been verified and then by the criticism and rejecting of the five common points of view regarding the Air Law, the originality and independence of this field has been further verified. . . . . . . . . . . . . . . . . . .

North Korea's numerous nuclear and missile tests in the past two decades have not only raised concern for regional states, but also the entire international community, with a worrying situation against international peace and security.North Korea conducted its first nuclear test in 2006, and has since successfully completed five other nuclear tests. Moreover, despite many obstacles, Koreans also advanced their missile program which naturally followed the ultimate goal to build missiles capable of carrying nuclear warheads. Moreover, despite expectations, the SC Resolutions could not stop the progress of North Korea's nuclear and missile programs. North Korean nuclear program is clearly indicating the weaknesses of the IAEA regime and the SC, and in this regard, Pyongyang's actions may well be the beginning of a procedural formation of a Nuclear Non-Proliferation neutralizer. What is to be addressed in the present paper is to verify the legality of North Korea's nuclear and missile tests in accordance with international law. At the same time, the legitimacy of SC Resolutions is also criticized and reviewed in terms of content against the DPRK. Finally, a perspective on how to deal with North Korea and the current nuclear crisis will be discussed in the conclusion.