نشریه قضاوت
پیاپی 96 (زمستان 1397)

Since the parties of the bank guarantee and documentary credit act only on the basis of documents, they are called documentary transactions. Recognizing the legal nature of these transactions is important because of the fact that if these two legal entities (documentary credit and bank guarantee) are of a contractual nature, the recognition of their elements are based on general rules and principles of contract law and if they are to be identified as (a) nominate/specific contract (namely the contracts which their rules and conditions are prescribed in law), they have the capability of completion and resolution of disputes only pursuant to the applicable provisions of such nominate/specific contract.  Lawyers have variety of opinions in this respect and there is no consensus on the nature of the bank guarantee in judicial proceeding. The examination of cases involving documentary credits also shows that the courts do not discuss the nature of the documentary credit agreement and merely cast a vote by referring to article 10 of the civil code, that is, the documentary credit validity is accepted under article 10.

One of the most important factors in attaining economic growth and prosperity in all countries is the proper functioning of sovereign and financial institutions in accordance with the policies and regulations set forth, including the allocation of credit facilities to the manufacturing sector by banks and financial institutions, thus enabling the economic players to access adequate financial resources quickly and efficiently and obviate their financial resource requirements, most importantly leading to economic growth and consequently increased employment. On the other hand, however, if financial institutions are not supervised by sovereign institutions, in some cases, due to a conflict of their own financial interests with said policies, they may refuse to abide by these legal requirements, including interest rates paid to depositors, type of contracts for awarding facilities to applicants and the interest rates thereof, and may, on occasion, drive most of their resources to nonproductive, or even disruptive, economic sectors in pursuit of greater interests. Furthermore, poor management makes said institutions incapable of even reimbursing depositors, bringing about disasters in the financial system, the likes of which can be observed in today’s Iran. Bank contracts, first and foremost, follow general rules of contract law and have further legal conditions and principles of their own, and even legislators have allowed them certain privileges. Considering the lack of a legal authorization due to nonobservance of genuine transaction conditions, one can safely assume that these institutions lack the required qualification and competence for entering into bank contracts, however, as viewed by economic law, the need for creating a competitive market, and the detrimental impacts of nullifying such contracts, facility contracts must be judged as genuine, nonetheless.

One of the current cyberspace challenges is computer pornography, which affects the security of the space. Therefore, the legislator criminalizes this phenomenon and puts it in its criminal law arsenal. Regarding the criminalization of computer pornography, it is necessary to consider its actus reus and mens rea. Lawmakers consider two behaviors, one conditional and one unconditional, punishable if accompanied by ill-will. By analyzing the actus reus and mens rea, it is concluded that the legislator has not followed a single approach in explaining the elements of this crime in different laws, and this paper seeks to explain and analyze the actus reus and mens rea of the crime based on the legal system of Iran.

Correctional approach to offenders defined as one of the utilitarian functions of punishments seeking to rehabilitate offenders. Helping offenders to return to the community and become law-abiding members of the community by the help of criminal law has been used following the effectiveness of criminology findings and the requirements and guidance of international instruments on criminal policymakers' decisions in this field. The Islamic Penal Code of 1392 is also influenced by the same approach. Recognizing criminologists’ assistances, engaging the clinical criminology findings, assuming emerging legal institutions such as suspension and alternative punishments, in addition to the development and evolution of previous correctional institutions envisaged in the former legislation, clearly indicate the determination of the legislator in pursuing correctional and rehabilitating policies in Iran criminal system. However, most such correctional measurements are not applicable in all crimes and can only be implemented in some offences with a low grade. In fact, while the legislator approach is appreciated, it is still concerning whether such correctional institutions can be implemented properly due to the necessity of provision of relevant infrastructure and facilities. This article studies the impacts of correctional and rehabilitating approach in both judicial and post-judicial stages within the context of the recent Islamic Penal Code and the Code of Criminal Procedure.

One of the most challenging phenomenons of today’s world that we are facing is the presence of the people who does not fit in regular gender classification, that is, male or female. Transgenders are a group of people which their identifications take place in no categorization. At first sight many of people and even doctors call these people sick in the best way and sexually perverse in the worst way. However the number of them is not small, they are considered as a new category in today’s world. The outbreak of these people in the world and Iran (according to the world health organization’s statistics in Iran we have approximately 700 cases on demand for transgender but in coroner’s statistics 350 individuals have changed their sexuality), has attracted juridical systems. Meanwhile claims and rights were discussed in order to be established, the European human rights court that was a pioneer, embarked with recognition and authentication of this category of people for issuance of votes in order to maintain juridical situation. In the meantime, we must say Iran has been a pioneer in recognizing these people since 1360s although some of the fundamental rights for this group has been ignored. In our research, we are willing to recognize the factors violating their rights by using justifying study about criteria and standards of human rights in confronting these people in Iran and the judgment and decisions of European human rights court.

Article 664 of the Twenty-first Chapter of the Tazirat Act of 1996 for theft and theft of unauthorized property stipulates that whoever intentionally constructs or modifies a key to commit a crime, or makes any means of committing a crime, or fails to do so shall be punished by the penalties provided for in that article. There are a number of questions raised in this context, at least some of which have not been adequately explained and answered in the discourse of Iranian law and academics, including Does the article merely refer to the crime of robbery or the crime in general? Is it a condition for the offender to use the device? Does anyone mean a third party, or a perpetrator who intended to commit a crime and who made the device, or does it include both? Is this crime an absolute crime or a conditional crime? Is it a complete crime or an incomplete one? Is it a mere material crime or should its psychological component be verified by the investigating judge? The purpose of this article is to provide a judicial description of the making or preparation of such criminal offense and to provide an analytical answer to these questions based on Iran penal law with a systematic look at the relevant legal theories and judicial practice, and in cases where we do not have proper analysis or information in such sources, we provide our analytical opinion based on our own judicial experience and analysis.

The importance of the notary public is no secret given the necessity of developing citizenship rights and transforming the culture of violence and strife into a culture of peace, friendship and democracy. Therefore, the notary public as a legal-civil and public-service body should ensure dynamism and accountability.  The question and purpose of this article is whether the official system of official documents in Iran, is dynamic and accountable? The present research is based on the analytical and library method under the assumption that the ambiguity in the nature of the Iranian notary system and its administration by personal interests and circular system, the emergence of new technology and also new foundations are the underlying reasons for inefficiencies of some regulations in this institution which in turn impedes the required dynamism and transparency.  This study yields the conclusion that the notary offices in Iran must be guided by a private, non-sovereign, impartial public professional system.