مجله تحقیقات حقوقی
پیاپی 87 (پاییز 1398)

Rights are among the most important fundamental normative claims that have played a pivotal role in the development of individual and social lives of human beings over the last centuries. This concept and institution, the same as any other normative concept and institution, is in need of justification. However, justification of rights, due to their particular nature, seems to be too hard. Are rights established on the basis of morality? In order to answer this question, it is first imperative to inquire into the nature of the moral and also that of rights. Inquiring into the nature of them, in particular that of morality, shall inevitably lead the discussion towards the common and distinguishing features of them from similar fields. This paper is, however, focused on the differentiating dimensions of the moral and rights. Having introduced distinguishing features of “the moral” and “rights”, we shall investigate and conclude on the logical relationship between the mentioned two in the context of justification or theoretical defence of rights. Such investigation and conclusion will pave the way for a more precise understanding and application of the aforesaid concepts.

Bitcoin, one of the realities is the economic system in contemporaneously, which, despite the opportunities, threats and risks it poses to the economic system of countries. At the moment, Bitcoin be considered, as the most used and most valuable virtual currency in the real world. Bitcoin is actually an internet innovation and with similar functions of paperless money or government money, a tool for transferring or storing value is considered with a decentralized nature, which has become widespread in the cyberspace and allows users to do so the entire process of publishing, processing and deals is made by users' networks and without any intermediary. There are many discussions about the nature of bitcoin. Indeed, bitcoin can be considered as a currency, capital or commodity? Extending the welcome to bitcoin has made it possible to examine Bitcoin's various dimensions and its use in the economic system on the agenda of research centers, jurisprudence centers, legislative assembly and central banks of many countries of the world That Iran is no exception. A look on the Bitcoin studies indicate that many experts believe Bitcoin can head certain functions in the real world that traditional cash and e-money play in the economy .Therefore, it does not contradict with Sharia law and Islamic principles, so as virtual currency accepted But the problems and challenges faced in this regard That must be The reliability and confidence in the exchanges by setting proper rules and strict monitoring

Medical fertilization are artificial reproduction techniques, that have been welcomed in recent years by countless couples. In a variety of medical fertilization methods, there is possibility of misrepresentation that occurrence and has many challenges. Some of these, occur in non-fiscal effects such as origin, guardianship and custody. The necessity to attention to these, the lack of a clear legal solution and the silence of the legislator, the new crises will encroach on these methods, and instead of solving the problem of infertility of young couples, will create more serious problems. We conclude that the child's origin arisingfrom deception doesnot destroy and the blood relationship continues to exist ; however, some specialists consider as illegitimate origin. guardianship will return to the ownerof the sperm in the eventof fraud from a heterogeneous fertilization by donors and homogeneous there is no effect on the guardianship. In the eventof deception by donors and the dismissal of the child by receiver, custody is the responsibility of the donors. If the medical team or health center is committed, the child custody costs can be claimed from the deceiver . In Britain, misrepresentation in medical fertilization also has different effects. There is no jurisprudential guardianship in this country. Also, custody will ultimately be assumed by other support institutions if the donors and receiver donot accept custody. in this respect support of the child is wellreceived. origin also has lost its true meaning in this country, because the legal approach is towards the contractual nature of this concept.

The right in the present manifestation relies on the state and discriminating of modern society from the tranditional one. The right and the government are also alive.Creating the right, exclusivity and continuity depends on the goverments guarantec. rights and diverse based on the charactevistics of their rules.we are going to study a part of a different domain of law, which is unique to the rules of the law. the recent realm is the context of criminal law. criminals law is a set of rules that define a crime, determine its punishment, and determine the method of proving the crime and the execution of the punishment in the realm of criminal law, we have also come to the writing systems, in order to quantify the rational criminal low in their study of their claims. our approach to written systems is formal and positive. in our explanation of our hypothesis, we chose coherence and explained the reasons for our reversal.rational criminal law is an interdisciplinary approach that follows the examination of the criminal law and the legalization of the judicial process derived from it through the logic of knowledge. Logical criminal law in the aftermath of military creation is a conditional and homogeneous proposition of self-substanted , positive coherent, deductive and qualitative propositions in our view, the logical rules of criminal procedure are also fundamental, formal, constitutional, disconnected from the origin of the law and are foreseeable.k.w: criminal law, writing systems, logic, logical legislation.

In some countries belongs to Common Law legal system, may be rending Oral Judgment. There are some advantages for this kind of judgment such as preparing more time for judge by economizing litigation duration and freeing their times specialized to other judicial activities. In the other side, there are no effects of oral judgment in French legal system as the most well-known example of Roman-German legal system. Otherwise in this country we can find the declaration of judgment which is very comparable to oral judgment. In Iranian legal system we have no any indication of oral judgment but declaration of judgment is known between lawyers. This research studies the frontiers of legal systems and so studies the possibility and advantage of oral judgment. We can confirm that oral judgment may be advised as a temporarily approach for administration of time in judicial affairs and we can use this method for efficiency of legal system.

In modern treaty practice, there is a temporal gap between the conclusion of treaty negotiations and adoption of the text or signature, on the one hand, and the entry into force of treaty on the other. This is because in many States the entry into force of a treaties is subject to the completion of proceedings necessary for ratification or approval. But sometimes immediate application of a treaty upon conclusion of its negotiations may for different reasons be crucial for states. The provisional application of treaties is an effective mechanism to achieve this objective, and now has become a common practice. This mechanism is codified in Article 25 of the Vienna Convention on the Law of Treaties. But just two allotted paragraph of that article can't answer all questions regarding the provisional applications of treaties mechanism. Thus, provisional application needs more clarifications. Therefore, examination of different aspects of provisional applications of international treaties mechanism is the purpose of this article.

Minority rights are increasingly recognized as an integral part of the United Nations' strategy towards the promotion and protection of human rights, sustainable human development, and peace and security. Permanent Court of International Justice (hereinafter PCIJ), has played a pivotal and determinative role in interpreting and developing international legal framework concerned with the protection of minorities. Interestingly, the related material of some highly significant human rights instruments such as International Covenant on Civil and Political Rights, Convention on the Rights of the Child, Framework Convention for the Protection of National Minorities as well as the 1992 UN Declaration on the Rights of Persons belonging to Ethnic, National, Religious and Linguistic Minorities is based on and built upon the case law of PCIJ regarding minorities and their rights. Views and precedent of PCIJ in this regard could be regarded a reliable foundation for the protection of minorities and promotion of their rights within the framework of UN and other relevant international and regional mechanisms. Accordingly, following PCIJ's opinions and precedent as to minority rights can pave the way for an evolution in protection of these groups through specific binding international instruments. The present study, through a descriptive-analytic approach, attempts to investigate the role of PCIJ in development of international minority protection system.

Nowadays the stipulation of clauses of amiable resolution of disputes, especially mediation and conciliation clauses is a growing trend around the World. But in the French Jurisprudence, the effect of these clauses on right of litigation was unclear for decades. The position of French Jurisprudence in this respect was on change; sometimes it denies any effect for these clauses, then it recognizes the absolute validity for them. Finally in 2003 French Supreme Court recognize the stipulation of these clauses as the obstacle of action and declare the non-acceptance adjudication as the sanction of non-fulfillment of these clauses. Although this decision offered cleare guidance in respect of effect of these clauses, it did not definitely resolve the problem. The controversies continued on the effectivity of these clauses on the incident actions. In accordance to a judgment issued in 2017 by the abovementioned Court, the effect of these clauses is limited to principal actions. Consequently, bring the incident actions in court without the fulfillment of these clauses is no longer limited. Taking into account the fact that Iranian Jurisprudence also hesitates in respect of the effects of these clauses, especially where one of the contracting parties bring the case without the fulfillment of these clauses, the study of nature and effects of these clauses in Iranian Law is necessary. In this Article the effect of these clauses on principal and incident litigations would be studied separately.

The thought of Iranian Constitutionalism, the rudiments of which was noticed along with Iran and Russia war, was indeed a reaction to the crisis precipitated all over the country. This thought was a route for renovation and rise of Iran. Based on the fathers of Constitutionalism, a facet of the rise and its bases was the endeavor to enter all ordinary people of the country in deciding for the fate of the country. With the rise of Constitutionalism, such a viewpoint was so spread that with the provision of rudiments, some constitutionalists such as Akhund Khorasani and his disciples identified a common denomater for the public based on which they passed the verdict of equality of the public. After the provision of such rudiments, Akhund Khorasani identified the governance in Occultation as taken by the public, therefore authorizing the generic and public affairs to be handled by ordinary people, while such a right was not observed for ordinary people before the Constitutionalism, being the freeheld of the King. Akhund Khorasani also denounced the monopoly of Islamic jurists, i.e. Faqih, in this field and authorized it for the public.

What appears from contract for carriage of cargo is that it is concluded between the sender and carrier, under which the carrier is obligated to carry the goods to the destination and deliver them to the consignee. However, this appearance might not reflect the truth, in that the consignee is the main beneficiary in the transport operation consequently, he might not only be entitled under the contract of carriage but also be obligated by the same contract. As a result, this question might arise that whether the consignee could be deemed as a party to contract of carriage or not? Some believe that the consignee is a third party vis-à-vis the contract of carriage, while others see him a contract party either in the form of a bilateral contract (omitting the sender from the circle) or a tripartite contract. On the other hand, the same question arises concerning the carrier as in most of the cases more than one carrier is involved in the carriage operation. It is worth noting that the subject of this article, which is of many legal consequences on the parties involved, is analyzed with a comparative study of French and English law and also the international transportation conventions.

Today, judicial victimization is one of the most important issues in criminal investigations. Existence of ambiguous terms such as security and public order ... threatens the rights of parties without anticipating a deliberate criminal policy that can prevent judicial tyranny. Under the pretext of detecting crime and speeding up operations, reporting on the success of law enforcement and the speed of the process of prosecution and investigation… labeling of criminal is brought to the accused; regardless of the truth of delinquency. One of the most effective resources of labeling is the criminal procedure that are accused people in worst way of litigation and indictment, arrest and prosecution and punishing instead of respecting human rights; Regardless of the principle of penal parsimony, international requirements for the implementation of the law, the executive of the defendant's rights, the rules of criminal procedure that lack of this rules lead to the commission of a judicial victimization against the accused, and finally And ultimately, the criminal justice system is producing new offences. This article examines the positive effects of labeling theory on the Criminal Code of 2013; the article shows that, while there are some defects, The big step by lawmakers to reduce judicial harm is considerable.

Nowadays, particular importance attaches to the choice of court agreement as a common clause in international commercial contracts. Nevertheless, for not taking point regarding the validity of such clauses in some legal systems, there are some challenges and ambiguities about it. One of most important problems is the conflict such agreements with sovereignty of state principle and concept of public policy. This essay with surveying the concept of choice of court agreement and also studying some related conventions and regulations shows this agreement is acceptable based on the party autonomy principle. Also by changing the philosophic basis of extra territorial jurisdiction’s rules, jurisdiction agreement doesn’t hurt sovereignty of states. The extra territorial jurisdiction rules is not related to public policy in all cases to say the jurisdiction agreement against them is invalid. The approach of some legal systems such as European Union and international instruments support the view of essay.

The present study, using a descriptive-analytical method, seeks to answer the main question: Is it generally permissible to deal with retaliations against the natural environment during armed conflicts? In this regard, one of the worst consequences of retaliations in armed conflicts is its devastating effects on the environment. These actions are sometimes intense, extensive and long-term that can threaten the health and life of humans. Examples of such actions have taken place in the Israel-Lebanon War (2006) and the Syria War (from 2011 til now). Article 55(2) of the Additional Protocol I(1977) to the Geneva Conventions of 1949, and Rule 1006 (j) of the 1999 Model Manual on the Law of Armed Conflicts are the few conventional and customary rules that prohibit retaliations in armed conflicts imperatively. The approach of governments and the practice of international judicial tribunals also confirm this prohibition. Despite the fact that in some conventional and customary international treaties, the serious violations of international humanitarian law, including the prohibition of retaliations and environmental devastations, have been described as war crimes, ‘’military use of the environment’’ and ‘’the concrete military advantage’’, are considered as exceptions to these actions. This research refers to the structural weakness of the existing rules and the necessity to focus on guaranteeing the implementation of the documents.

Despite its significant role in settling disputes between sovereign States and foreign investors, the international investment arbitration has been subject to substantial criticisms the most important of which is the inconsistency of awards in similar cases; a serious issue that dismantles the coherence and predictability of awards and undermines the legitimacy of international investment arbitration. In this article, the issues that give rise to the current crisis as well as the potential impacts of an appellate body to be established to review the inconsistent investment arbitration awards will be discussed. In the following, various options that can serve for this purpose will be theoretically and practically assessed. Eventually, after evaluating all the proposed options, the article concludes that the International Center for Settlement of Investment Disputes (ICSID) is the best option for this purpose in a manner that the Annulment Committee of ICSID is modified in order to transform into a comprehensive, fixed, and permanent appellate body acting within ICSID to review and, if necessary, correct the appealed awards. This proposal of course entails the structural modification of ICSID and thus requires the revision of ICSID Convention. Moreover, the article proposes a number of other suggested modifications to the ICSID Convention including expansion of appeal grounds, appointing fixed appellate judges familiar with public international law, preventing judges of the appellate body from simultaneously arbitrating other investment disputes, and fixing a deadline for the appellate body to decide.