نشریه تحقیق و توسعه در حقوق تطبیقی
پیاپی 2 (بهار 1398)

Law is a set of binding social rules. In the philosophy of law, the important question is what is the secret of human obedience from legal rules and where does the binding force of legal rules come from? A variety of theories have been presented in response to this question. In this regard, one of the important theories is the historical theory of law which has been proposed by a doctrine of the same name. This school emerged in Germany in the eighteenth century. According to the teachings of this school, the reason for the binding of legal rules is the establishment of these rules through the custom of society. Legal rules are ones that have been gradually formed in society and have been accepted by all people. Law is a reflection of the public conscience or the “soul of the nation”. A nation is a collection of people who have lived in a certain society in successive times. According to this theory, the people of land adhere to and obey laws with complete fidelity Because the legal rules have been affirmed by them and successive generations. This school was not widely accepted. This school declined sooner than expected. In this article, the principles, advantages, disadvantages and decline of this school have been studied.

One of the types of violence is domestic violence, the most common form of which is male violence against women. Matters used by some to justify violence; Verse 34 of Surah An-Nisa ‘which is in a part of the verse, regarding the treatment of some spouses, said: “And beat them”. This article now seeks to answer the question of whether Islam really commanded domestic violence? This question, while seemingly minor, is a general objection to the body of religion if it is not dispelled. To find the answer, we have conducted research on various interpretive, jurisprudential and legal views and finally, by comparing them, we conclude and justify this view; First, arrogance has a meaning beyond mere sexual disobedience And secondly, the reaction given to such arrogance has three characteristics: being Ta’zir, gradual, and even less than the proof of diyat.

Today Governments are well aware of the need for special protection from children and have realized that today’s children are the future of society. That is why countries have adopted different actions and policies to protect and promote the rights of children. One of these policies is the creation of an institution called the Commissar for Children. This literature is a bit strange in the Iranian legal system because such an institution has not been formed in Iran so far But many countries, including New Zealand, Australia, Austria, and Norway, have set up child commissions And have reflected the scope of its duties in its laws. The duties defined for the commissioners are considered as promoting and protecting the interests of children, participating in legislation and supervising their proper implementation, defending children in the courts, mediating and raising public awareness of children’s rights, in the context of respecting the highest interests. And the protection of children’s rights. The basis for the presence of such organizations can be sought in avoiding the official institutions of criminal justice due to the instability in delinquency and the prevalence of clinical and restorative patterns in children and adolescents. In Iran, institutions such as NGOs, department of education, State Welfare Organization, Complex Dispute Resolution Council for Prisoners, and the Prosecutor’s Office have the same criteria of responsibility as the commissioner of children, and it seems that everyone is moving towards the same goal. However, the existence of such scattered forms does not justify the need for a specialized institution in the field of child protection, and it is appropriate to establish an institution with broad powers in the field of children and adolescents that can prevent these people from entering the criminal justice system.

Water as a source of life is one of the most important underlying factors of development in any country. Prior to the 1940s, water was considered unclaimed property according to Imam jurisprudence and, consequently, civil law and any acquisition and exploitation of them was carried out in accordance with the rules and regulations of private law. Over time and also the occurrence of many problems in this area, various damages were gradually inflicted on the country, including due to the introduction of deep well drilling technology and uncontrolled abstraction of groundwater by wells. Accordingly, the role of the government became more prominent in exercising sovereignty over the exploitation and protection of the country’s water resources and water exploitation became subject to the rules of public law as well as the rights of water wells “changed”. So that now any exploitation from groundwater by drilling wells must be done with the permission of the government and within the prescribed limits. Thus, It can be seen that due to the changing water conditions of the country and the crisis in the water sector, the waters became national. And the private rights of individuals were restricted in the exploitation of water wells and public laws take on a major role in the administration of this part of the legal system.

Interdisciplinary studies interact between two or more disciplines and provide context for the growth and development of science and enhance their ability to solve complex and multifaceted problems. This interaction can range from simple exchange of opinions to cross-convergence of concepts, methodology, procedures, epistemology, data terminology, organization of research and education in a wider field. Literature and Law Since they have the same issues for discussion, they have given rise to interdisciplinary approaches to these two domains, and they should not be construed as one of the most logical and emotional state of mind. “Legal literature”, while expanding the scope of the subject for writing stories, leads to the emergence of dry and debatable legal issues and provides a way to teach law schools, public awareness, as well as the possibility of criticizing legislative and executive policy.

This research is dedicated to examining one of the Unified Judicial Precedent of the Supreme Court regarding the acquisition of private property of individuals for the implementation of public, development and competitive projects by the government and municipalities. There have always been different procedures regarding the possession of personal property by the government and the non-payment or compensation of damages. Disagreement in judicial inference led to the issuance of a Unified Judicial Precedent No. 747 on the need to establish a wrong-doing of the government regarding the ownership of personal property or not. This verdict ostensibly states that all claims for demanding price against the government, adversarial and otherwise, are non-adversarial and require a violation in the Court of Administrative Justice. But the interpretation of this verdict is not possible without considering the existing legal texts and special rules of public law in state ownership. Therefore, it is necessary to achieve this important thing, that is, the correct interpretation of this Unified Judicial Precedent by examining the legislative and judicial background of the subject, different precedent and the relevant principles and rules. In any case, since the subject under discussion is related to both the areas of public and private law, so in analyzing it, the considerations of both areas must be taken into account.

Iran’s judicial system that underwent major changes after the Islamic Revolution and established Islamic norms as a basis for the preparation and regulation of laws, has established basic principles as the basis of legislation and litigation, following Islamic jurisprudence. The principle of judicial etiquette, or in other words, the preservation of judicial dignity is one of the basic principles in any judicial system, especially Islamic systems. In this study, in addition to a comparative study, it is concluded that the change and approval of various laws in the field of criteria and what is said about the rules of judicial behavior is due to misunderstandings of Islamic jurisprudence. Because Islamic jurisprudence is very dynamic and the criteria of judicial behavior must be in accordance with the standards of the holy Sharia of Islam. As for the examples, it is necessary to pay attention to the customs and traditions of the international community so that the laws that violate these rules are not passed, due to the change of society and the evolution of customs. According to the mentioned result, an attempt has been made to provide the ground for amending the laws by using comparative studies with the accepted and international document of the rules of judicial behavior and providing the necessary suggestions.

Legal fictions find their reason of existence in their functions, not their theoretical basis. A dichotomy can be considered in the functions of fictions in legal systems. The technical function of fictions should be distinguished from the constructive function of them. The technical function of fictions would be separated in explicative and mechanical functions. The function of some of the fictions is merely explicative such as “general gage of debtor’s assets”. The mechanical function of fictions can lead to efficiency of legal rules, such as “igmorantia juris non excusat”. Constructive function of fictions may be historical or teleological. These fictions either include a new subject-matter under the realm of a rule that not logically cover it (such as capacity of embryo) or exclude a subject matter from the realm of a rule that logically cover it (such as immovable by destination). Function of historical fictions is a priori and function of theological fictions is a posteriori. The historical function of fictions, such as theory of “legal personality”, made it possible to enact new rules without mutilation of legal systems integration. On the other hand by resorting to theological fictions, the legislator can protect some interest or values. Because of the vast initiative of legislature in resorting to teleological fictions, these fictions are often looking with suspicion. Consequently, the authority of creation of these fictions must be studied.

Undoubtedly, justice is considered as the highest objective of the law of law, in which all legal doctrines are set up to achieve this goal. The question, however, is whether the idea of justice can be used as the main independent authority for legislating, prescribing, modifying and interpreting other thematic laws?What seems to be inferred from the study of jurisprudential and legal books is that in this context, three perspectives are capable of plotting. In a theory of justice, it is never considered as an independent principle, and the criterion for measuring law is conformance to revelation. In another trend, justice can be used as the independent source for inference, modification and modification of rules. And the third view, which seems more reasonable, is that a moderate approach to justice must be taken; that is, in a number of cases, justice can be considered as an independent source. In the present article, while criticizing and analyzing these three approaches and examining the legal effects resulting from them, we will ultimately present our chosen point of view.

According to current rules and regulations in Iran, like the other executive bodies, municipalities should pay to compensate for the site and superstructure in approved urban projects to the owners. Municipalities face challenges in case of taking possession because some of the superstructures are built on the sites related to urban projects before constructing the building while the project is publicly announced, and the constructed buildings do not have construction permission. In practice, municipalities try to submit the violation case of such buildings to the court to achieve the building destruction vote issued by commissions on Article 100. Under this order, municipalities do not pay compensation for the superstructure. Accordingly, this practice will not solve the problem due to two reasons: 1- commissions may not issue the order of building demolition; 2- the problem remains unsolved in urgent cases of project implementation when the compensation of site and building is paid to the registration fund for projection and possession. It worth notifying, there are few documents about the possession in these cases in addition to the absence of rules on urban rights in Iran. Hence, the author tended to argue the case of whether paying compensation for such buildings or not. Results showed that such compensation should not be paid for in this case.

There have been ups and downs in the modern legal system of Iran over the hundred years. As an ever-existing dilemma, Iranian Lawyers have always been asking that whether Iran’s Law should rely on the jurisprudence as its main reference or should make its policies based on the European Law, which encompasses the modern rules. The lawyers are now analyzing legal cases using various methods. Sometimes, the highly adhere to jurisprudence just describing and interpreting the jurisprudential texts. Nevertheless, sometimes ignore the jurisprudential antecedents and only rely on European texts and references. The current methods try to keep balance using both Imamiyeh jurisprudence and written law as the reference for Iran’s Law. How legal foundations should be analyzed? To what extent the justice and interests are determinant as the legal ideals? Are legal texts and references respected enough? The above-mentioned questions have had different answers. Some juristic such as Professor Jafari Langarudi have used both references (jurisprudence and objective law) for legal analysis of rules and laws such as civil code. They not only followed interpretive principles but also considered justice. This paper aimed at reviewing this process to introduce the procedures and methods used by lawyers to contemplate the legal rules.

With the enforcement of new Criminal Procedure Act on 1394/04/01 in Iran, the power to hear criminal claims has been taken from civil courts but criminal courts have the jurisdiction to deal with civil claims exceptionally. The most important jurisdiction of criminal court over civil claims is apparent in the claim for damages resulted from a crime. But hearing this civil case in criminal court has some conditions which must be identified and exercised carefully due to its exceptionality. First, the claimed damages must be the direct consequence of an act, therefore, only the victim has the right to bring such an action. The other condition is that the claimant has not bring the mentioned action in civil courts before. Such claimant has been given a power to refer to criminal court if he/she was unaware of the criminal aspect of the matter and had waived his civil claim before referring to criminal court. However, it seems that the claimant has the right to bring an action in criminal court when his previous civil claim form rejected or nullified. In addition, rejection of the claim by the civil court because of the restitution of the claim by claimant give the claimant to refer to a criminal court. Judging about the restitution and value of stolen property, restitution of property taken by fraud, object of breach of trust offence and duty to pay blood money are the matters with civil nature which are dealt with by criminal courts without any need for claim form from claimant, but expressly mentioned by legislator. In addition, judging about the payment for procedural costs and damages and insolvency to pay procedural costs and insolvency to pay judgment debt are some other civil matters which can be seen within the jurisdiction of criminal courts.

The standard of compensation, as well as the method by which the compensation is evaluated, have a direct impact on payable compensation. This paper examines both cases of the standards employed to determine the compensation and the calculation methods for the amount to be paid to foreign investors as a result of expropriation. However, the emphasis is made on the methods used to calculate compensation. According to the findings of this research, the decision made on lawfulness or unlawfulness of expropriation by the arbitral tribunal plays a vital role in choosing the standard and method for assessment of compensation. In the case of unlawful expropriation, the arbitral tribunals are more inclined to choose the full reparation standard in order to wipe out all the consequences of the wrongful act. In lawful expropriation, however, the situation is different so that the payable compensation is calculated based on the standard agreed in the relevant treaty. In absence of any agreement in this respect, the compensation is calculated based on the legitimate expectations of the investor as well as the host state’s needs for structural changes and exercise of sovereignty. Concerning the methods of assessment of compensation, the results of this research indicate that there is no one-size-fits-all method. Discounted cash flow, comparable transactions, and book value are the most common methods for calculating the value of expropriated properties. The abovementioned methods provide both advantages and disadvantages. The property value is evaluated based on a specific method in each case depending on some factors such as the type of confiscated property, investment progress rate, validity and reliability of the records, and finally the market situation in terms of competition and openness. Furthermore, this study only focuses on the compensation for the expropriation of foreigners’ properties without considering the indemnity resulting from a breach of contract by the host state.

Proper legal behavior of officials and the legislative body is a factor affecting the trust of people in government. Hence, misbehavior of such authorities causes mistrust of the public in the power. Accordingly, legislation, like any other profession, is based on a specific culture that has been formed over time discussing under the title of legislation ethics. Analysis of this ethic can form the psychological bases of legislation in which ethical and moral necessities affect the legislator’s conscience as well as human force and legislation institution regardless of current conditions of the era, individuals, or certain organizations. This paper adopted a descriptive-analytical method using a library tool to examine the professional morale ruling the criminal law as a factor that prevents the bias in fair legislation. To this end, this study considers an appropriate legislation model introducing ethics as the criterion for proper behavior. Furthermore, some principles and rules such as justice, fairness, non-infringement, non-violence, respecting human dignity, and privacy have been considered and analyzed as ethical and moral necessities in this research.

Professor Jafari Langarudi, one of the famous figures of Law in Iran also as a Lawyer, Researcher, and Judge was born in Langarud, Gilan, Iran 1921. He was born in an academic family, and his clergy father taught him the basic sciences. Passing his education course at the Introductory University of Rasht, He found then his ideal character in the world of science and feeling in Khorasan spending a long period with him to learn jurisprudence and theological studies and obtained the degree of ijtihad. Then, he was graduated in law from the University of Tehran and worked as a judge in justice administration and as a professor in Law Schools of Tehran University for more than 30 years. He was also the chief of the university and took part in the process of writing the draft of the constitution after Iran’s 1978 Revolution. Jafari Langarudi has written more than 100 books and articles over 50 years of scientific activities. Many precious legal works of literature and law references have been based on his books. We can call him the law dictionary since he is the first writer of Iran’s Law Encyclopedia (five volumes), the first writer of law dictionary, and law terminology in Iran. This study aims to introduce this lawyer to science seekers relying on some critical subjects mentioned in his first work entitled “philosophical principles of law.” His power of the pen in his first work indicates the advent of a researcher lawyer. Moreover, the advanced philosophy of law and jurisprudence can have profound effects on the reforms required for judicial and legal systems. Conducting studies in law from the rule and law-based researches (technical papers) to philosophical and fundamental studies contribute to a systematic process of law based on an informed procedure. Hence, this study adopted an analytical-descriptive-library method to review the general structure, appearance structure, and content of the considered book. The conclusion is derived from the abovementioned procedures.

Those who are in the science world are always thinking of establishing an intellectual system. The intellectual system of Jafari Langarudi is founded based on his more than 80-year experience in research, writing, judgment, and teaching law at the university. He is one of the academic and legal characters trying to redesign and reconstruct the legal system of Iran. He began from monotheism lecture and reached the philosophical principles of law writing more than 50 scientific works. When he was abroad, his age and distance from academic tasks could not stop him from publishing works related to the “philosophy of Islam culture” and “survival secret of Iran”. Professor Jafari Langarudi tried to complete the legal system of Iran by publishing about 100 scientific books. He designed a legal system in which some concepts and components including “rationality”, “looking o the future”, “comprehensiveness”, “justice-seeking”, and “legal ijtihad” are highly interconnected.

The supervision over the councils has been anticipated in Articles 105 and 106 of the Constitution. However, there is not any specific name of authority or reference for such supervision and monitoring. According to Article 173 of the Constitution, to investigate the complaints, grievances, and objections of the people against governmental officials, units, and protocols, and for the people to restore their rights, a court named the Court of Administrative Justice will be established under the supervision of the head of the judiciary. The law shall determine the responsibility and the mode of operation of this court. As mentioned, the legislator has confirmed the supervision over the performance of councils. However, the question raised here is about mechanisms that should be used by the Court of Administrative Justice to monitor actions of local councils and their members by considering the regulatory model of the court on governmental officials and protocols as well as the independence of local councils from three powers. There are several legal theories about the competency of the Court of Administrative Justice for investigation and nullification of approvals of Islamic councils. Some of these theories include lack of jurisdiction of the Court of Administrative Justice to join in councils’ ratifications, competency of Court of Administrative Justice for investigation of councils’ approvals, competency of Court of Administrative Justice for investigation of city councils’ approvals, lack of jurisdiction of this court for investigation of approvals of other councils, and competency of public trials for investigation of other councils’ ratifications. Results of the practical procedure of the Court of Administrative Justice confirm the competency of this court for nullification of councils’ approvals. However, the impendent investigation of councils’ approvals by the Court of Administrative Justice is a kind of violation of purpose by legislator considering the existence of boards of the settlement of the dispute. Hence, the monitoring responsibility should be assigned to boards of the settlement of dispute due to the certain mechanism of approvals nullification predicted by the legislator, lack of explicit anticipation of the court interference in previous rules, and the amendment of the Court of Administrative Justice and Councils Act. This assignment, however, depends on choosing the Court of Administrative Justice as the appeal or final deciding court for decisions made by boards of the settlement of the dispute. This is because, despite the independent and specialized nature of boards of the settlement of disputes, they are independent administrative commissions and quasi-judicial institutions. Nevertheless, an investigation by the Court of Administrative Justice is a kind of investigation in a judicial and specialized forum.

The liability caused by other’s actions has been believed in previous societies. Hence, people used to destroy a tribe because of the murder of a person. With the advent of legal systems, the principle of individualization of punishment was established, so that no other person is punished because of other’s actions. However, with the creation of legal entities, assumptions were presented and led to the criminal liability of legal entities. Now, the question is that whether considering criminal liability for the legal entity is consistent with the principle of individualization of punishment or not? And whether such a person can be punished or not? The answer is that the principle of individualization of punishment has a relative and not absolute impact. When a person is punished for the commitment of a crime, the other people around that person will be damaged physically and spiritually and even other social classes with no relationship with the offender are harmed. On legal entities, the same issue is true. Criminal liability and punishment of legal entity can impose harm on stockholders and other people connected to the person. However, this is not inconsistent with the principle of individualization of punishment. This is because; firstly, the said principle has a relative effect, and secondly, criminal liability of a legal entity is a proxy and not a liability caused by the other’s action. Thirdly, the legal entity has the capability of tolerating the punishment. Fourthly, considering liability for the legal entity and punishing that person can leave impacts in the society to make interest for those people, who were harmed by the punishment of the legal entity.

The Berne Convention is the fundamental international document in the field of copyright. It’s been a long time that attachment of Iran to this document is the subject of a dispute between legal and political authorities. The document contains an appendix including six articles for benefit of developing countries. Investigation of different positions in the field of attachment of Iran to this document and the appendix and the analysis of bonuses presented in the appendix for the developing countries form the subject of the text. The text has been submitted to people interested in the intellectual property field in two sections under the titles of positions of opponents and proponents.