نشریه تعالی حقوق
سال دهم شماره 3 (بهار 1398)

It is not surprising that, despite the passing of decades of legal experience in dealing with the Transaction to avoid payment of a debt, the legal status of the deal remains challenging. Previously, the theory of void had prominent supporters; in recent years, two other perspectives have replaced the old theory that did not recognize the contract as invalid. The differences of opinion in this area result from the amendment of Article 218 of the Civil Code and the replacement of ambiguous provision and its apparent contradiction with Article 65 of this Act. This disagreement peaked following the adoption of the Law on the Implementation of Financial Convictions in 1351 and its revision in 1377 and 1394. However, it seems that the new Act does not contain a new ruling in this regard, compared with pre-reform laws. the Transactions to avoid payment of a debt in the relationship between the parties to the contract is neither absolute void nor ineffective in its traditional sense; it is irrefutable to the creditor. The person mentioned can ask the court as a last resort to cancel it unless his debt is paid. With this interpretation, coordination is established between civil and commercial regulation.

In the international legal system, there have been tangible developments humanitarian consideration ate in common, meanwhile, the international criminal court is a new legal structure for prosecuting perpetrators of international crimes violators of human rights. The tribunal has been linked by linking international peace and security and justice to human rights and humanitarian law, which in the light of its constitution, can play an important role in advancing humanitarian law. The nature of the humanitarian law of international crimes within the jurisdiction of the tribunal... all reflect the evolution of international human law into organized protection of humanitarian law.However, in the current context of the international community,

This paper arrived at the result of studying the legislative developments in the legal system of the country and its jurisprudential principles through the library's method. Which despite the precise determination of Blood is bleeding 's case and the imposition of a punitive punishment for someone who has committed a murder without legal authority, The Islamic Penal Code is also far from the humanitarian system with the ideal system of full and comprehensive support, And the existing legal status in addition to the social security of people in the country endangers, Conflicting the legality of the proceedings with the need to investigate criminal acts by the judiciary It is necessary to remove the title of Blood is bleeding and his murder license from Article 302, to pursue the treatment of the subject under this title in the courtroom through fair trial and the issuance of a legal decree against or against him.

The Right to litigate has been recognized and ensured with different literature in International documents and constitutions of most of countries which have written constitution. Article 34 of constitution of the Islamic Republic of Iran has emphasized on this right and article 159 of constitution has ordered that official body for resolving disputes is judiciary. Although there are no discussions about posibility of using voluntary resolving disputes in non-judicial way from perspective of public law, but there is serious doubt about using that mechanisms in criminal cases and some of administrative cases because of reason related to violation of public order and public interests. Considering current problems of judicial system of Iran such as increasing volume of cases and long processing time, it seems that we can provide conditions of relative decline in volume of cases and enhance the quality of performance of judiciary by using non-judicial mechanisms of settlement of some of cases.

ThePurpose ofThis Article is toAssess the Validityof Mortgageof Debt in Imamie Jurisprudence and Iran Law with a Descriptive andAnalytical Method.According to the FamousView in Imamie JurisprudenceCertain Goodsof Mortgage andthe Possibilityof a Delivery is aValidity Condition.Therefore, Mortgageof Debt isNot Valid.because Debt isNot Tangibleand Deliverable.The Iran Legislator in CivilLaw has Explicitly Ruled inValidity of Mortgage of Debt by Virtue of Article774 as a Consequence of the Jurists. Debts like Demands and Commercial Documents Although, as a Rule,These Properties Like CertainGoods Are Not Deliverable by Mortgages but in Most Cases, It is Possible Customary andSpiritual Deliver of This Kind of property in order to Maintain the Rights of the Mortgagor. And Void of it is far from the Logic and Needs of the Commercial and Economic. Especially as the Research shows in this Article, In Imamie Jurisprudence, there is no Consensus between the Jurists on the Necessity of Delivery. in Iran Law the Legislator in Many Cases Such as Commercial and Bank Laws, Believes Invalidity of Mortgage of Debt and Somehow Reverted Invalidation Verdict in the Civil Code. Therefore, it is Suggested That the Legislator, While Modifying the Civil Code, will Provide the Basis for Accepting All That is Financially Valuable as Mortgage.

Article 152 of The Islamic Penal Code has specified Criminal non-liability of the distressed. Article 1 of Islamic Penal Code in setting the rule of the basis of liability, has subjected the indemnification of losses to the faulty failure that, the distressed lacks this element. Making an exception about this rule and imposing liability without failure only legally is possible once causation is proved, that due to the deletion of the note of article 55, in pertinent laws there is no regulation regarding the distressed. In this situation the requirement of having legal codes and obedience of the rule of civil liability basis, is the exemption of the distress from indemnification; of course this exemption is case when the distressed causes damage, when he does damages in person to others, indemnification will be based on destruction. In American law the distress has strict liability based on damage. Accordingly, the distressed enjoys an in-complete privilege for inflicting damages to others on condition that he indemnifies damages, and failure to indemnify is deemed a fault. The basis of this fault that is called conditional fault has been constructed on distinction of reasonability or un-reasonability of damage.