نشریه دیدگاه های حقوق قضایی
پیاپی 88 (زمستان 1398)

In international responsibility law, effective act or omission of injured person don't affects on creation of international responsibility and such conduct shall only be considered in the determination of reparation and amount of that, unless it can be treated as consent to commitment of a certain act by another state which shall prevent the creation of international responsibility as one of the circumstances precluding wrongfulness. also, it shall be entirely exempted the state when conduct of injured person was absolute cause of internationally wrongful act and eventually prevents attributability of this conduct to the State. Injured conduct  will also be considered in diplomatic protection, international liability and invocation to responsibility by a state other than an injured state. In addition, international practice With the development of this concept, duty of injured person to mitigate after the internationally wrongful act and assumption of risk is also considered grounds for reducing the amount of reparation.

Smuggling commodities and currencies, as a social and economic phenomenon, have very adverse economic effects. The smuggling of goods and the importance of fighting them, organizing the status of border exchanges, moving towards a transparent economy and adapting the behavior of regulatory bodies are among the most important operational axes to combat smuggling of goods. In this article, after analyzing the current status of the Anti-Smuggling of Goods and Currency Law We review the smuggling prevention measures that were in place before the adoption and enforcement of the Anti-Smuggling Act of 1392 in Iran's criminal policy. Also, identifying the causes of the ineffectiveness of these measures, we look at criminological comments explaining the causes of the commission of crimes such as smuggling goods; then we will assess the anti-smuggling law critically. Thus, by recounting the consequences of this crime for the destruction of national and regional economies and the destruction of social capital and human resources in the body of the administrative and social system of a country, the principles and rules and the principles of proper criminalization in the fight against smuggling of goods are described. Finally, with a critical approach, the weaknesses and strengths of Iran's penal policy are explained, and solutions for removing barriers to criminal policy and strengthening the current strengths of the discovery, trial and punishment of perpetrators of these crimes are presented.

Today, in leading administrative law systems, the judicial process along with the law is the most important source of legal rules, and the law alone can not feed the legal system. Although in the administrative law system of Iran, the use of judicial procedure has often been considered as a source and interpretation of the law and not as the main source, but the role of administrative courts, especially at their head, namely, the Administrative Justice Court, in the formulation and production of a judicial procedure containing general principles and The basic concepts of administrative law are vital and can play an important and important role in fostering administrative law.The present paper draws on practical examples of case studies to explain the role of the judicial process in the development of administrative law, with emphasis on the judicial process of the Administrative Justice Court. The results of the survey indicate that judicial procedures can play a fundamental role in the evolution and development of administrative rights as a core source for consolidating and enhancing the concepts and principles of public law as well as the complementary instrument of law and guidance in the adoption of progressive administrative laws.

In tri-lateral consumer credit agreements, Recognition legal liability of lender on breaches by supplier is based on two undeniable realities: 1- close relations of lender and supplier so that they seem to be a Joint venture. 2- Responding the requirements of distributive justice and supporting the consumers as the weaker party by imposing all losses incurred by consumers due to any breach of contracts by suppliers on lenders. Whereas in UK the creditor is liable for all losses suffered by Consumer, in US, this liability is limited to the amount of credit not settled. In Iran’s Legal system, Regardless of lack of protective legislation on consumer credit, considering the method of conclusion of tripartite credit agreements, recognition of liability of lenders encounter two main obstacles. Lack of effective relations between the lender and supplier in most credit agreements is the first. Intensive interpretation and replacing the criterion of the possibility of derivation of common interest between supplier and creditor can solve this problem. The Second obstacle is conferring the role of seller to the creditor in almost all of the tripartite credit agreements, concluding the contract in the form of direct loan, resulted in the unification of the role of the supplier and the creditor in one person. Since conferring the role of seller to creditors is artificial and just in order to withhold gavel, passing over this artificial form and interpreting the real intent of the parties abate this obstacle.

In settling disputes regarding international commercial arbitration the parties may instead of choosing the law of one country to choose lex mercatoria or the law of merchants as a applicable law to the disputes. When this choice is possible that applicable choice of law rules recognize such power for the parties. The principle of autonomy is choosing lex mercatoria has been recognized in many national laws and arbitration tribunal regulations. Non-dependence on no state or sovereignty is the most important feature of this system that increase its desirability in the scene of international commercial arbitration. Thus, it should be seen what is the purpose of lex mercatoria as a spontaneous law whose rules drive from trade usages and what is its nature. Whether it is a full legal system and whether lex mjercatoria as a set of principles and legal rules that is not followed any state law has the potential to be applied as the applicable law to international commercial arbitration or not. article finding are to the effect that lex  mercatoria as a subsidiary Hybrid legal system is relied on in arbitration awards.

The revolutionary institutions, due to the authority of the public power, form an important part of the administrative organization in Iran. the legal status of the institutions in question was ambiguous, The legislator tried to create a legal personality by adopting the Public Accounts Act of 1366 and the Law on the List of Non-Governmental Organizations and Public Institutions approved in 1373. The grant of a new legal personality to these institutions also did not result in recognition of their legal status. the explanation of the legal status of revolutionary institutions can be effective in responding to them, realizing the principle of the rule of law and guaranteeing the rights of individuals in dealing with them; In this research, we have tried to study the subject in a descriptive-analytical manner, In conclusion, the conclusion that the requirement for the revolutionary institutions to comply with Articles (2) to (5) of the Public Accounts Law not only did not explain the legal status of these institutions, But also caused some problems in the administrative law system and oversight of the institutions under discussion due to the formation of a dual structure (revolutionary institution, the public non- governmental organization) for some of them. Since the dichotomy of the legal personality of these institutions has caused ambiguities in the employment system, their incomes, property and their monitoring. It seems necessary to create a single recruitment, financial and oversight system for them.

More favorable law Right Provision and compability provision are contemplated in New York convention. When a country implement New York Convention, the arisen question is that if someone can invoke more favorable provisions of both convention and domestic laws for enforcement and recognition of an arbitral award. To deal with this question conventional award and in particular non-domestic ones must be clarified. Then by choosing legal regime of a country , the convention provisions should be compared with those of that country.  In Belgium rules applicable on recognition and enforcement of arbitral awards are amended in accordance with UNCITRAL model law in 2013. Thus Belgian legal regime is selected. Findings show that if there is a foreign factor in parties` relationship . issued award in the country of origin is viewed as non-domestic. In the process of recognition and enforcement of the arbitral award the more favorable rules of both convention and domestic laws can be invoked.

Athletes are among the community reference groups that, according to their followers, their behavior patterns have an impact on the behavior of other members of the community. The same scope of influence encourages business firm to use them in their commercial ads. Certainly, this will not be a problem if the athlete is satisfied with the prior consent, but the main issue is where the business firm uses the athlete's identity tags in its advert without prior consent. In the UK legal system, with concern for the possibility of violating the freedom of expression and, of course, with the inestimation of the contribution of athletes to gaining reputation, A special institution to support athletes not identified . But in the US legal system, supporting the athlete has a greater precedent in judicial proceedings. In this legal system, by relying on the institution of Unjust enrichment, efforts are made to uphold the rights of the athlete. In iranit seems that with using the Code of Civil Liability and the Code on the dissemination and free access to information, as well as institution of unjust enrichment, The athlete's rights can be protected.

According to the well-known opinion of Shiite jurists a child born out of wedlock is prohibited from inheriting from his/her own natural parents. This rule, however, is not among those consensual laws which accept no new rereading. The evidence supporting this law is, basically, some single hadiths (khabar wāhid) which suffer from weakness in terms of authenticity and indication and implication. Also, the law is in conflict with some general Qur’anic teachings as well as some other theological and rational principles like the principle of equality in rights and obligations, The jurisprudential rule of justice and negation of oppression and the principle that responsibility is, in essence, personal. This article criticizes religious evidence supporting the well-known opinion and argues that there is some reliable evidence in favor of permissibility of inheritance of a bastard from their own natural parents. What is prohibited is to inherit natural parents of an illegitimate child from her/him not the reversed.

Our article examines the extent to which state officials are subject to prosecution in foreign domestic courts for international crimes.  We consider the different types of immunity that international law accords to state officials, the reasons for the conferment of this immunity and whether they apply in cases in which it is alleged that the official has committed an international crime. Legal domestic Judgments around the world particularly in UK and Spain support our approach and we use the findings of the International Court of Justice in several relevant cases such as Arrest Warrant of 11 April 2000. We argue that personal immunity continues to apply even where prosecution is sought for international crimes. Also we consider that instead of a single category of personal immunity there are in fact two types of such immunity and that one type extends beyond senior officials such as the Head of State and Head of Government. Most of the article deals with functional immunity.