مجله حقوقی دادگستری
پیاپی 109 (بهار 1399)

The most important source of Law in countries with civil law system is statute. Understanding nature of statute and its differences from similar concepts such as policy is a requisity of comprehension of legal and judicial systems and effective role-playing in creation and applying legal norms. There are different experts with different specialty such as law, judicial sciences, public policy making, social sciences, economy, linguistics and etc in process of policy making Including judicial policy making. But what is the nature of legislation? What is the role of law in formation of statute? What is the specific nature of judicial bills and the role of the judiciary in judicial policy-making?The sovereignty of state is applied by different political bodies and powers. Systematic cooperation of governmental bodies (Including the judiciary) in doing their duties is a reqisity of good governance. Several state bodies take part in process of ratification of statute. Desirable function of statute depends on proper functioning of competent institutions in policy cycle. The question we will discuss below is that what is the role of judiciary in judicial policy making process?This essay by descriptive-analytical method using library and web resources trying to answer the above questions. According to the findings of this study, legislation is a political act primarily. In the process of judicial policy making, law has both a reinforcing role and a limiting role; the role of the judiciary is also important in the various stages of that process (from problem identification to evaluation and providing corrective solutions).

Analyses on the Judicial Precedent regarding the Claims for Delay Damages of Currency Payment AbstractFollowing the currency crises of 1993, 2002, 2012 and the recent foreign exchange crisis and the non-fulfillment of currency obligations in due time is the claim for a delay in payment of foreign currency which is one of the most complex and prevalent claims today. The judicial precedent in this regard is not established and is open to contrasting views. The origin of the dispute results from the nature of the currency obligations and its non-prevalence. One stated comment (as the dominant view) suggests that the common currency mentioned in Article 522 of the Civil Procedure Code for Public and Civil Revolutionary Courts has been dedicated to the domestic currency money and does not include any foreign exchanges and the other opinion would suggest that this lawsuit is actionable. The same dispute exists in respect with the private agreement on determining the delay damage of payment obligations (including currency and Rial). In view of the undeniable exchange role and value of the currency in economic activities and the need to support foreign investment, It is essential to legally examine and review this claim and its reasons and justifications. It seems that the Article 522 of the mentioned law, which is cited by the courts, seeks to govern the purchasing power of the money and does not include the determination of the contractual monetary obligation and the delay damage in payment in its strict sense, and in light of the legal citations and documents which approve of the claim in delay damages of payment and its basic philosophy, it is possible to hear the claim and decide upon it in favor of the on the payment in foreign currency for the delay damages in payment.

The principle of access to the judiciary has come to the forefront of the new concepts in civil justice law, based on the principles of judicial democracy. The necessity of qualitative access to the judiciary makes it possible, on the basis of openness of the proceedings, the specialization of the judicial system and the development of various forms of dispute resolution, to the efficiency of the judicial system, and the need for little access to the judiciary on the basis of judicial review and compliance with the principle of proportionality Approach the standard judiciary.The principle of access to justice has three fundamental indicators. The principle of easy access, which includes access to the rules of procedure and objective access to the judicial system. The principle of quick access, which relies on digital economy and information and communication technology, is driven by electronic justice. The principle of cheap access also seeks to balance the cost of litigation in the macro perspective. There are three criteria and sub-indicators in this principle, which include the system of judicial assistance, both public and private, the law enforcement agency and the litigation insurance system.In the present paper, with a focus on the economics of justice and in comparative approaches, while recognizing the concept of the principle of cheap access from two legal and economic perspectives during scientific discussions, the following three sub-indicators will be discussed.

Extending the relative jurisdiction arising from connectivity of claims in Iran and France by reviewing the judicial processAbstract:The rules of jurisdiction are showing of good administration and good governance of hearing. The rules of jurisdiction are regulated based on primary and secondary provisions. In primary rules of jurisdiction, the general framework for determining competence criteria is presented but the application of these regulations alone can not meet the purpose pursued by the rules of jurisdiction. Therefore, by virtue of the application of these regulations, effective and appropriate competence will not be obtained; For this reason, secondary rules of jurisdiction play their role. connectivity of claims is one of the secondary regulations of jurisdiction which will be affected the relative jurisdiction and led to the development of the jurisdiction of the Supreme Court. In the French civil procedure, the relative jurisdiction of development is different from that of Iran. The focus of this research is that What effect does have connectivity of claims on relative jurisdiction in civil procedure of Iran and France? And to what does exclude the primary jurisdiction rules?Key words: Extending jurisdiction, Related claims, connectivity of claims, Primary jurisdiction regulations, secondary jurisdiction regulations.

Binding is one of the advantages of official documents which in some cases due to considerations is generalized to normal documents too. Beneficiaries of such documents, after attending document regulator office or registering department with execution, based on the case can pursuit the execution process via registration department. Determination of a competent authority for proceeding complaints of mentioned dual actions and the way of proceeding is one of the challenging matters in law of registration and jurisprudence. The question, for example, is “whether complaining execution in all cases, is in authority of head of local registration office” there are different answers for such question. Here in this research, we criticize the common attitude; also while considering various articles, Supreme Court’s and High Council of Registers’ Judgments, the necessity of separation between cases, competent authority in proceeding complaints and the way of proceedings were defined. This article shows that examination of the execution process complaint in some cases, in which they are just statements of right without any legal aspect, is in the authority of the head of local registration office. And if there is any necessity for legal examination, the court is competent to do that.

Publishing literatures and artworks under copyright protection in the internet and possibility of widespread infringement of these rights by millions of internet users all over the world faces Holder of the right to this important question which law would be applicable in conflict of two or more laws? Whether in determination of governing law in copyright infringement in cyberspace, traditional conflict of laws rules is applicable or we need new rules in this area? This article studied the issue by separation of two assumption of agreement and disagreement on applicable law in contractual and non-contractual infringement of copyright in cyberspace. In contractual infringement which has been agreed on governing law, the procedure of most of the countries and international conventions is acceptance of principle of will. In contractual infringement in absence of agreement on governing law, different benchmarks has been adopted which the most important of them is applying of law if the country which has the closest relation with the contract. In non-contractual infringement which has been agreed on governing law, there are two general viewpoints between lawyers, countries and international regulations. Some ones don’t accept principle of will because of connection of torts with public discipline. And others recognize rule of will in determination governing law before and after entering damage. And finally in assumption of disagreement in non-contractual infringement, which is the most common kind of infringement of these right in cyberspace, among different theories (including Lex fori, Lex loci delictiو Lex loci protectionis(The theory of law of the country of the substantially closer connection has been suggested as the most appropriate solution in order to determination of governing law.

Will and intention is very important in the law. Legal actions interpret with intention. contrracal partis use from word for explanation of willWhile we speak about suspension, there is discussion that axactly when and where suspension is happened by will. Suspension of creation and suspension of existence is place to challenge between experts. It seems that for best presentation of interpration of intention about suspension we should see internal intention of contracal partis. In regard to pragmatic custom we will discern, it is best way to assessment of real intention of partis. Intention display with word and other things but it is importan issuethat, what is declaration purpose of internal intention. In this article we will compare between opinions about place of suspension of in tention and explan that, theory of under taking is nearest to puerpose and intention of conteracal partis.Keywords: will , suspension, creation , existence , undertaking.

The basis of intentional crimes is the will. A person who does not dominate his or her behavior should not be punished legally. Intention to occurrence element circumstances of the crime, which is usually included in the legal definition of crimes and is a part of the actus reus, is not an exception to this rule. When the accused shall be punished that he is aware of the circumstances and how the legislator intends to commit a crime or he considers his behavior to be that. These element circumstances are sometimes confused with the conditions known as the "aggravating circumstances". There are no specific procedures in the criminal law and doctrine regarding the provision of a criterion for distinguishing between these two types of conditions, and the necessity of intention of the aggravating circumstances. While aggravating circumstances, and the necessity of intention can have a significant impact on criminal liability. In this article, in addition to offering the criteria for distinguishing between these two types of conditions, according to Article 155 of the Islamic Penal Code, and the judicial procedure in the United States United, based on the general principles of criminal law, the necessity for intention will be strengthened for increasing criminal liability.

Nowadays, the concept of intellectual property rights has found striking importance in commercial interactions and plays an important role in economic development of countries. New contractual frameworks for transactions have been developed for these assets whereof the “agreement of patent assignment” is a shining example. Since the nature of patent is a independent category of rights with its own effects and characteristics, patent assignment agreement is not possible to justify it based on any specified agreement. Permanent and unconditional property transferring is its main distinguishing feature with other emerging agreement forms in technology fields. Based on this, the contract of assignment of patent should be regarded as a undefined and independent agreement which falls into the domain of article 10 of civil code which as well as general conditions mentioned in article 190 of civil code, contains specific regulations and conditions. This specific essence makes particular obligations for both parties and presents specific issues in dissolving such contract which requires comprehensive legal analysis. This article is going to analyze and clarify all aspects of such agreement.

The media play an important role in responding to crime at different stages of criminal prosecution. The legislator's initiative in Article 96 of the Code of Criminal Procedure, A clear indication of the activities of mass media in the preliminary research phase. According to this regulation, media with the release of the accused person's identity, Have a significant role in advancing the preliminary research process. In fact, with the escape of the accused, the proceedings of the prosecutor's office were stopped and the publication of the specification and finding it again flowed out. On the other hand, with the media being the defendant's identity, he has been convicted of numerous offenses, the offenders will have the opportunity to lodge a lawsuit to prosecute him. Of course, the legislator, in view of the disadvantages of this operation, limits the media to the accused's identity and is subject to a series of legal rules. The purpose of this paper is to while explaining the functions and objections of the media to the identity of the accused at the research stage, studying these criteria is to prevent any irregularities. The methodology of this research is descriptive-analytical-critical and has been used with genuine library resources. According to research theoretical studies, Insert the accused's profile in the media has a judicial nature and it is necessary "The Executive Order of the Mode of Dissemination of the Identity of the Defendant" Which includes such things as Media allowed to publish identity, Number of ads published and… is developed by experts.

One of the ways of mental damage compensation is apology that plays an important role in the healing of mental and emotional pain of victim and has a detrimental effect on his relationship with the wrongdoer. In Iranian law this has been the subject of legislative attention and article 10 of the Civil Liability Act gives the court the authority in case of mental damage to force the wrongdoer to apologize for the loss. However, apology has not been defined and its terms has not considered in Iran laws. Countries such as Canada and the US were leading countries in this case and have used the apology as a tool to relieve mental pain and did a lot of research in defining and explaining of apology. In current research we study the notion and terms of apology and its role in mental damage compensation of victim and its effects on wrongdoer behavior and also the process of apology in the court. In conclusion, on one hand, the Iranian legislator must define the apology and on the other hand, the role of judicial procedure must be emphasized to order to apologize as one of the methods of spiritual compensation if appropriate.

Prevention and management of conflict of interest in the judicial system is one of the ways to reduce corruption in it and in the whole of the political-administrative system. Often, different countries anticipate and control conflicts of interest in the justice system. The countries of the Islamic Republic of Iran, the United States and the United Kingdom each have some laws and regulations in place in their legal system. By comparing the three countries above, it can be concluded that given the early identification of the concept of conflict of interest in the United States and Britain, and as a consequence of the drafting, adoption and enforcement of these laws against Iran, the conflict of interest in the judicial system of these countries has been decreasing and Judicial and public officials have also had a great deal of interest in managing conflicts of interest by knowing and understanding this issue. But in our legal system, an independent concept of conflict of interest has not yet succeeded in finding its proper place in the laws, and as a result we have not witnessed a significant process of managing conflicts of interest in the judicial system. Nonetheless, disparate laws and regulations that involve preventing and combating conflicts of interest have failed to provide effective management of conflicts of interest in the absence of some of the key elements in managing conflicts of interest, such as declaring assets or supporting effective disclosures. The lack of comprehensive legislation and the effective and transparent implementation of existing laws also add to the problems of conflict management in the justice system.