نشریه آموزه های حقوقی گواه
سال پنجم شماره 2 (پیاپی 9، پاییز و زمستان 1398)

The framework and foundation of every legal state is determined by the Constitution and Therefore, The importance of designing the requirements and mechanisms of such law is undeniable and it clarifies the benefits of ideal pattern of Constitution-making. The possibility of legal system’s changing in every period, necessitates as a central concern in constitutional law the design of Constitution-making process desirably. Looking attentively to the effective and fundamental characteristics of this process indicates that ensuring maximum participation of people, the openness of responsible bodies’ proceedings and public awareness of them, hindrance of the interested individuals and parties in imposing the power, preventing the chaos and disorder in the country and also, ensuring the participation of elites and experts are as the most important elements in ideal designing of such process. However it’s impossible to suggest one similar pattern for all countries, but the substantial point is how countries can attain the Constitution-making desirably in a competent process; the theme this article is to answer with a descriptive- analytical approach.

Punitive damages is an institution that is rooted in common law. although in Iranian law there is a legal letter, but is used only in civil cases against some foreign states, it is not actually accepted in domestic law of Iran. To this occasion, works have been written in Persian language, about the possibility of accepting and rejecting it in Iranian law and in Some of them, the introduction of this legal concept to Iranian law is recommended. In this regard, attention to the limitations imposed on punitive damages in the United States of America in recent years can be of great help to researchers in this area. Because the review of these restrictions after years of experience in punitive damages in this country has been designed and to address some of the problems caused by punitive damages, especially the criticisms of the unjust enreachment in punitive damages cases and to ignore defendant’s rights in these cases. According to the proposition, the entry of punitive damages to Iranian law in its pure form and without such restrictions would be out of the way of planning and wisdom. In the present article, five of the most important restrictions that apply to punitive damages in the United States, have been attempted to address punitive damages reforms in American law. These restrictions range from the impossibility of claiming punitive damages in four states from the United States to a ceiling for punitive damages in the laws of more than 25 states in the United States, as well as rigorous laws to demonstrate a specific description of a harmful act and Or its subject in the cases of punitive damages, as well as the receipt of part of the punitive damages in favor of the General Fund.

The "Commanding Right and Forbidding Wrong" is among the institutions that have a special place in Islamic criminal policy. This institution, also is one of typical Collaborative criminal policy, influencing all stages of the formation of criminal phenomenon, its role in reforming society, crime prevention, and control of all social relations, make that definitely special in Islamic criminology and crime prevention in Islam. Since the effect of this institution, even in the works of authorship secular also been considered, has been tried to study a comparison between the Criminological Theories that have subscription theoretical or practical with the "Commanding Right and Forbidding Wrong" with dimensions’ criminology in need of close contemplation and examination. Based on the analysis of the elements of Commanding Right and Forbidding Wrong, it’s similarities with the teachings of Broken windows theory, social control, Social learning theory, imitation theory, differential association and social cohesion is analyzed. Besides the difference and gaps in the functioning of Commanding Right and Forbidding Wrong, ideas in conformity has been considered.

The idea of separation of powers, in the light of the Appointment s’ theory and the Selection s’ theory of velayat-e faqih Certainly the idea of separation of powers as essential in politics recent centuries has been known as the standard to value political systems.The idea of fundamental rights in Iran, with formal adoption of the constitution it was proposed constitutional amendment. Constitution of the Islamic Republic of Iran, the idea is referred to as separation of powers. of opinions on leadership and the position of the separation of powers in the Islamic Republic of Iran recognized constitutional rights.

One of the most vital issues that must be considered for applying the regulations of lapse of time, is the beginning of this time through the crimes. Lapse of time beginning is the date determined by law, and lapse of time calculation for crime and penalties will begin from that date. The diversity of the crimes leads us put more attention for determining of this date. However, it is possible that lapse of time be interrupted due to any investigation measures, so the previous passed time may not be calculated during the new course. It is obviously on the contrary to lapse of time suspension through which the passed time before suspension may be calculated through the restart. Recognizing lapse of time interrupting measures, their impacts, and suspending measures in regard with the evolutions of criminal law have been studied in this article. Research method is descriptive-analytical that gained by referring to legal-jurisprudential sources at libraries including books, dissertations and numerous articles. We have addressed this question whether the evolutions of lapse of time regulations could have resolved the increase of criminal cases at courts.

Bankruptcy inquisition according to it’s special nature and character has it’s own special arrangement. One of the fundamental questions about this concept in our current legal system that the requesting bankruptcy settlement from the judicial jurisdiction should be by making petition or it belongs to non-litigious jurisdiction affairs. Current acts define the non-litigious affairs. According to article 1 of non-litigious jurisdiction act enacted on 1319, ((non-litigious affair is a kind of affair that judicial jurisdictions are bounded of settling them, without any need of conflicts and litigations to be made by petition)). In spite of the fact that the legislator hasn’t defined clearly the meaning of ((action)) but with the definitions coming from books of legal doctrine, we can say that ((action)) is a conflictive matter and the reason of bringing action against somebody is solving conflicts. In spite of existing variety evidences and presumptions about the non-litigious nature of bankruptcy, jurists and in some cases the acts, didn’t pay attention to this fact and have Judicial jurisdictions are bounded of settling them, without any need of conflicts and litigations to be made by petition. In spite of the fact that the legislator hasn’t defined clearly the meaning of ((action)) but with the definitions coming from books of legal doctrine, we can say that ((action)) is a conflictive matter and the reason of bringing action against somebody is solving conflicts. In spite of existing variety evidences and presumptions about the non-litigious nature of bankruptcy, jurists and in some cases the acts, didn’t pay attention to this fact and have considered it as an action. In this research it will be shown that the non-litigious outlook has covered many deficiencies that the outlook of considering it as an action can cause. The current research is proving with evidences and documentation that the bankruptcy is a matter of non-litigious affairs

An economic view of bankruptcy law suggests that some policies and behaviors in a legal relationship lead to a distortion of the balance and inefficiency of a legal system. The main focus of this study is to examine the twofold approaches to bankruptcy law, the occurrence of economic disadvantages In bankruptcy law. Economic damage is one of the deadliest illnesses caused by the mismatch of bankruptcy times due to trading transactions with the Iranian economy. Hence, issues related to bankruptcy conditions are among the first to provide the basis for the formation of economic corruption due to the inaccuracy, clarity, comprehensiveness and status of bankruptcy conditions in commercial law. One of the causes of the economic crimes in bankruptcy law is first and foremost the bankruptcy conditions, including standstill and merchant, that the precise knowledge of these conditions in Iranian law and the provision of such solutions as: the calculation of bankruptcy rights in the area of public order, the establishment of specialized courts Bankruptcy and the formation of a special court for bankruptcy crimes due to the quality of the courts, the implementation of third-party protest laws, civil procedural law in bankruptcy proceedings and the prevention of the violation of rights of stakeholders who are not parties to the dispute, a proposal for adjudication without trial and without formalities Civic Bankruptcy Claims Like Tripartite Claims To resolve the conflicts in the Commercial Law, the Law on the Recovery and the Penal Code, to correct and adhere to the reasonable appropriateness of the statutory deadlines set forth in the Commercial Code, to establish an up-to-date and accessible system for inquiring about the situation of traders during transactions, Increasing the powers of the prosecutor, as well as the unnecessary separation of bankruptcy cases for compulsory and optional blame, increases deterrence aspects and strategies to prevent economic damage in bankruptcy law.

Independent Guarantee, is a contract or document that whereby issuer, according to the applicant request, has been claimed to pay a certain amount to the beneficiary with the conditions provided in the guarantee and independent from obligations arising from the basic contract between the beneficiary and the applicant. This guaranties are rooted in the development of commercial transactions and they should take into account a relatively new phenomenon and the result of custom and practice of international trade and economic and commercial needs. Independent Guarantee has several peculiarities that knowing these peculiarities seems to be effective and necessary to use such guarantees more precise in the field of trade law and business interactions; especially when the Iranian legislator has just been trying to improve the situation for trade exchanges by drafting the law in this field. In this paper, with a descriptive-analytical method, the peculiarities of independent guarantee which are independence from the basic contract, the specified procedure of issuance, and the transferability, had been discussed according to domestic regulations and the field of international trade, and the characteristics and precise meaning of each peculiarity had been expressed, and the similarities and differences between Iranian law and international regulations regarding these peculiarities had been mentioned.

In Iranian legal system investment bank including the financial institutions, is subject to paragraph 1 of article 21 of the market law, which provides a variety of financial services in the capital market. This company is the most complete form of financial institution, that is, it is able to provide the total services that other financial institutions provide in accordance with Article 28 of the same, the law of operation is under the supervision of the organization. And public assemblies, managers, inspector-auditor and specialized committees of the company are required to observe and enforce the laws and regulations. After obtaining a license to establish and issue a license, the company will start legal life according to the laws and regulations and is governed by the Statute of the Securities and Exchange Organization approved by the Joint Stock Company or by a public corporation , Therefore, it was necessary to review and review the system of inspections of commercial companies in accordance with the general rules of commercial companies in the Commercial Code, the amending bill and other laws and regulations related to capital market law. Considering the significant impact of investment banks on the supervision of these companies in accordance with existing laws, in addition to the customary internal inspection system in stock companies, several regulations have been approved by the Stock Exchange and In the same direction, the investment bank is required to submit to the organization periodic reports of specific issues in due time that along with these reports, the Securities and Exchange Organization also monitors the activities of investment bank through its inspectors. In addition, the central bank has been trying in many ways to oversee investment banks In order to prevent banks from entering the field of business and finance, making banks and credit institutions more attractive, banks are required to sell their shares in investment banks.

Privacy and its theoretical issues are in direct relation with governments since the expansion of Privacy and its realm are desirable to individuals and legal entities on the one side, and on the other side the governments, under the political and security reasons, are trying to minimize the realm of privacy in order to get access to information and get permissions for violating this absolute humanitarian right. This research attempts to answer the main questions that what are the bases of privacy?, and what are the exceptions considered thereon in regard with Islamic resources? Consequently, the first step is to look at privacy from public law point of view; furthermore, determine the bases of respecting privacy to support the rights of people and the related exceptions to support the government and the society. Therefore, studying the Islamic resources, we categorized the bases of respecting privacy as: Respecting human dignity, Respecting the righteous people (Mu’min), forbiddance of molesting of people, trustworthiness, prevention of dissemination of prostitute, and keeping ethics. It is clear that the rights of people have been emphasized by Islam, but on the other side, the rights of the society in general which represented by government must be considered as well. Generally, the exceptions toward privacy can be listed as governmental authorities, enemies, domestic hypocrites, children from their parents’ side, the sinner, the ruthless ruler, security breachers, and heretics. In the rest, the stand of privacy in the law of Iran has been studied and the principles of the constitution and the vision document eventuated to the enactment of the comprehensive plan of communication and information technology. Even though the bases of privacy limitations have been used in accord with the Islamic subjects, there are some misinterpretations through the opened issues.

The question of reason and possibility of legal enforcement of morality rooted in fundamental concepts of public LAW, such as freedom and law, and the answer to this question have a great influence on determining the form and functions of the state. What is being discussed in this article is that, by contradiction between the morality and authority of the state, how should be the morality enforcement  and in other words, what is  the mechanisms of the morality enforcement in the Islamic Republic as a concrete example of the Islamic state? The answer to this question, in addition to the fact that it is possible to enter the state in the field of morality and the requirement for it, can be a base to the assessment of the validity of the state's morality enforcement, and to use these mechanisms in various subjects or to amend them. In this article, which is prepared by the method of library studying and analyzing the legal- juridical system of the Islamic Republic of Iran, after expressing the concept of morality and a brief examination of the principles of limiting the freedom of individuals by law, the laws and institutions of the Islamic Republic of Iran are analyzed. It can be said that prioritization of morality enforcement, such as the mechanism of the Islamic Republic's fundamental rights, the method of Appointment and supervising state agents, the establishment of special institutions for the promotion of morality, and public supervision have the priority that the morality enforcement of Judiciary. The use of force is the last level of the morality enforcement.

Considering the importance of public-sector partnerships in terms of the ability to raise micro and venture capital, and their use in the direction of business and industrial growth (which requires large capital gains rapidly), following the passage of the partial correction bill With the Trade Act of 1968, the legislator sought to pass dispersed regulations over the years with the aim of resolving problems along the way with these types of companies (with producer and investor protection approaches), and by changing the former procedure of incorporation, It has eliminated or added some things from formation to liquidation of companies. This library research reports on the efficiency or inefficiency of these reforms by presenting some of the most significant changes in the form of management of these companies in relation to the 1968 bill, and in some cases offers suggestions for improving the status quo and achieving the desired status. Don't give up. The need for transparency in the assets of managers with the aim of preventing corporate tax evasion by establishing a transparent stock transfer system, the need to employ technology to hold electronic meetings and information by new methods, as well as quasi-judicial approaches to increase power. Inspector oversight is part of the achievements discussed in this article.