مجله تحقیقات حقوقی
پیاپی 84 (زمستان 1397)

International Criminal Court (ICC) is the first permanent body established in pursuance of implementing criminal justice and fight against impunity and was assigned with the critical function of prosecution and conviction of perpetrators of the most heinous international crimes. Having been enforced in 2002, the Rome Statute is the constitutional document of the Court which was drafted and adopted with the goal of ensuring effectiveness and efficiency of this primary international body. Provisions related to jurisdiction of the Court are among the most important parts of the Statute and were the subject of many controversial issues during the negotiations of the Rome conference, after the establishment of the Court, and even now. One such issue is the preconditions to the exercise of jurisdiction the Court and the existence of jurisdictional gaps in the Statute in the confrontation with the international crimes covered in that document. This article tries to, first, appropriately elaborate on the preconditions to the exercise of jurisdiction formulated in Article 12 of the Statute, second, to explain the arguments for and against expanding the mentioned preconditions, and finally, to submit an argumentative assessment of different views concerning whether such expansion is possible.

International Distribution contract is one of the most important agreement on the international trade law. Distribution contracts are agreements concluded between a supplier and a distributor. The supplier agrees to supply the distributor with products. The distributor commits itself to purchasing, distributing and promoting such products in its own name and on its behalf. By means of a distribution contract parties organize the distribution. this contract is a framework agreement, which provides the context for subsequent contracts. due to absence of distribution legislation and lack of important provisions in Iran, the main issue is in this thesis if Iran legal system have capacity of assent this contract. In order to do so, firstly, this work is introduced to the nature of a distribution agreement and assess its with foundamental legal contract In Iran legal system. Accordace with the analyzed, confirm that distribution contract is a framework agreement which infrastructure is the nature of it, in spite of the lack of a solid legal framework on this agreement in Iran and not indentical with other legal entity.

The responsibility of state for measures of terrorist groups is a challenging question. Considering all articles of the ILC Draft Articles on State Responsibility for International wrongful Acts can not include all aspects of co-operation between state and terrorist groups. Relation between state and terrorist groups is in three forms: first, terrorist groups are under control or instruction of state. Second, terrorist groups are independent from state and states only co-operate with and assist them. Third, states are indifferent to measures of terrorist groups done in their territory against other states. Draft Articles of Responsibility of States for International Wrongful Acts enacted in 2001 only respond to the first situation and there is a gap in other situations. Many opinions have been presented for filling this gap which include Theory of absolute or collective responsibility, Theory of Complicity, Condonation and accounting of damage theory and Theory of causation-based responsibility. In this article, it will be tried to study each of these theories and their weakness and strength points and to present final solution.

Given that today reputation of trademarks is very important for their owners and they spend a lot of cost to acquire and keep it from damage, anticipation of institutions such as passing off to prevent infringement of trademarks with goodwill to protect trademark owners is very effective. For this reason, this institution, namely, passing off has a long history in common law system. Trademarks with goodwill are protected, provided that the necessary conditions exist. This article first, clarifies the types of the trademarks which are supported by passing off mechanism, and the conditions which these marks shall contain to be supported by this mechanism. Furthermore, the article sheds some light on the Iranian legal system to see whether or not this system provides the same protection for the relevant trademarks. The article also contends that the reputable marks which are subject to the possibility of misdirection and, thus, causing damages shall be governed by the mechanism of passing off. Against this backdrop, it shall be noted that there is no such an institution in the current Iranian legal system. Hence, in the context of Iranian law, the necessity to establish a similar passing off mechanism or, otherwise, protecting those trademarks through other appropriate mechanisms, to be based upon provisions which prohibit unfair competition, seems to be an irrefutable fact.

Deprivation of liberty from persons who accused of crime to a temporary detention is one of the effects of the conflict between the right to security and liberty;because on the one hand,right to freedom of persons appropriate that any restrictions cannot be created to whom his guilt has not been established by any court.In other hand, access to the accused and also establish a fair criminal trial it is requires that such a person face with limitations in the field of freedom. Today, this has caused that although documents such as the European Convention of Human Rights accept temporary detention institutions for protecting the interests of society but in the implementation and due to the opinions issued by the European Court of Human Right, some criteria and mechanisms are considered to ensure the respect of human rights to persons affected by temporary detention. In Iran, in the new criminal procedure law was accepted temporary detention code, and also was tried to emphasize some of the international standards including necessity of reasonable suspicion of committing a crime by the accused to issue, necessity of criminal proceedings after issuance and the possibility of objecting and etc. Likewise, there are some flaws and problems in the new law including restricting the issuance of a temporary detention to some specific crimes and also the lack of specific sanctions for violations of officials.

Today, because of ignoring the interests of the host country, Following the observance of human rights standards, Environmental rights and Economic concerns such The outflow of capital from the country and also The power and interference of these companies in the political issues of the host country, Governments are trying to make multinational companies Under the jurisdiction of the domestic courts. in these areas The connection is "Territorial" and the connection of "Citizenship". Connects the government to a multinational corporation. However, the practice of developed governments Like the United States (In the description and application of the jurisdiction of these enterprises in their laws) Shows that governments tend to Find More communication lines to exercise jurisdiction On multinational corporations such (Benchmark Supervision, the citizenship of shareholders or managers, manufactured goods, etc.) Principle of territorial jurisdiction of the court Prevent them from exercising their jurisdiction over multinational corporations But if a multinational corporation Intends to The legal personality of their affiliates As cover To stay safe from pursuing local courts, Can be used The piercing the corporate veil rule to apply The jurisdiction of the court to the multinational corporation. At the same time, the courts can investigate crimes and violations of multinational corporations Based on violations of international human rights

Contract Self Performance is a structure in which, without any need to invoke courts, contracts will be performed. Various components are effective to establish this system which efficient compensation is one of them that may be known through recognition of different kind of damages and proper criteria to evaluate damages. These two components are primary incentives to breach agreements or to perform contractual commitments in party's cost-benefit analysis in a way that if the variety of the accepted damages is more, cost of any breach will be more and if the criteria to evaluate damages is more comprehensive, the breach will be more expensive, however the existing legal rules in Iran's Law and the judicial system approach, accept minimum damages in a way that breach will be assumed as a profitable determination. This matter will impose extraordinary costs on legal and economic system, which may be reduced through through efficient and complete contractual damages.

"public morality" or "public morals" are mentioned as a legitimate aim that justified restriction of some rights granted by the instruments for the protection of rights and fundamental liberties, both in a national and in an international context. To avoid arbitrary restrictions to these rights, it is important to understand its meaning and to perceive conditions and limitations on use of restrictions on rights. To achieve this goal, this article refers to some principles that public morality can rely them to be efficient and democratic public morality and has the ability and capacity of restriction of individual rights and liberties. the principle of publicity , the principle of rationality, the principle of autonomy, the principle of freedom and the principle of tolerance are these principles that the lack of one or all of them, makes public morality to inefficient and undemocratic public morality that can not restrict individual rights and liberties.

Forensic Victimology is a branch of applied victimology, a scientific examination of victimhood and victimization in order to discover the truth in the process of preliminary investigation and criminal proceedings. When filing a criminal case, assessing the integrity of the victim''s statements, the evidence and evidence presented in the administration of justice have a significant impact. In the course of the evolution of victimology, the scientific discovery of crimes and the rights of criminal investigations, the scientific significance of the phenomenon of victimization was considered. The formation of a criminal offense and the victim''s personality record are one of the main achievements of victimization. Detecting a crime, conducting investigations, identifying the accused and proving his delinquency in many cases relates to the victim. The victim will be the appropriate clerk to identify and prove the crime. In this way, it is possible to draw the criminal offense of the perpetrators. Forensic Victimology by identifying the causes of victimization and victim''s fault can provide appropriate models for crime prevention. On the other hand, determining the type, severity and actual rate of victimization and distinguishing real victimizations from false ones is also one of the most important issues in the process of preliminary investigations and trials Criminal should be taken into consideration.

The rules derived from the opinions of judges that apear in their decisions, are called the "Case-Law". In the other words, the judgment of courts is called case-law. In the Iranian legal system, there is two types of Judicial decision. The first, is a set of judgments that is passed by the courts at any level, and the second, is the judgment that is passed by Plenary Assembly of the Supreme court, relating to the resolving of the conflicts between the judgments of the courts. In our legal system the first type of judicial decisions is not the source of law but the second type are obligatory for all the courts in the similar cases, thus is the source of law. This second type of judicial decisions is regarded as source of law. In this paper we criticize the judgment as a source of law in the Iranian legal system.

Irrevocable commercial letters of credit, in one respect, are divided into confirmed and non-confirmed credit. The confirmation of credit, in and of itself, is a new judicial act which contains same terms and conditions of confirmed credit. It creates a direct, primary and independent obligation upon confirming bank, so that it add confirming bank's obligation to issuing bank's obligation. The confirmation of credit in strict legal sense requires authorization or request of issuing bank. However, banking market bring about a new type of confirmation which have not this requirement, but it creature of a private contract between beneficiary of credit and a bank; i.e. it takes form at the request of beneficiary of credit rather than issuing bank. This specific type of confirmation is called "silent confirmation", distinguishing it from confirmation in strict legal sense. This article study concept of silent confirmation, differences between two types of confirmation, legal effects and risks of silent confirmation.

Deciding in the subject of custody and the children guardianship in a legal system totally depends on each system’s approach towards child and childhood’s conception. In this regard each system has it’s own factors. While we face with the concept of interest or Ghebte in Islamic jurisprudence, the best interest of the child (BIC) was bolded after convention on the rights of the child’s ratification (CRC) in 1989. Although Iran has joined the convention, the dynamic and ambiguous nature of interest prepare the possibility of different interpretations which will lead to judgements’ dispersion and assessors’ confusion. Thus CRC’s committee has tried to solve the problem and enjoying the internal laws may be effective. The aim of this research is the access to the custody criteria as the leading factors according to the CRC and internal laws’ capacity in the context of BIC. Thus presenting that criteria will be the result.