مجله حقوقی دادگستری
پیاپی 112 (زمستان 1399)

The critical statistic concerning traffic accidents, intensifies the necessity of growing attention and importance of preventive measures of these crimes, and makes this issue as a major concern, and reveals the necessity of interactive (non-criminal) preventive measures in respect to traffic crimes and violation. Situational prevention or situation oriented, as the most moderate, possessing the most widespread measures, is considered asan effective non-criminal prevention pattern, and based on the statistics given by official organizations, it has tremendous impact on reduction ofcrimes and violation in different countries. In proportion to scientific and technological developments, different situational preventive measures have been updated, and due to their consistency they can be applied in traffic violations and offences. On one hand the analysis of suggested measures in the framework of situational prevention and on the other hand, statutory criminal policy pathology and some other practical plans linked with this kind of prevention of the offences and traffic violations are the main purpose of this article. In the sphere of I ran's statutory criminal policy “the law of compulsory insurance for damages inflicted to third parties arising from accident of vehicles ” and “the law of adjudication oftraffic violations are the most important legal sources that their analysis shows that most of the components and enforcement measures either have not been predicted or their enforcement process have not been codified even in the form of by-laws, or are far from situational technic and criteria over them. Unfortunately legislature in its statutory criminal policy just in a few cases has taken into consideration situational prevention aspects, although this matter is significant but the practical potentials of situational prevention has been restricted to nominal and brief dimensions. In addition the guarantee of situational prevention approach in the society needs systematization of the variety of adopted situational measures,

In all legal systems, confession has a special place in proving a criminal case, although they do not have the same view on its validity. In the regulations of countries subject to the system of legal reasons, a confession has an intrinsic value, so that the judge is obliged to issue a judgment based solely on the confession for the absolute validity given to it by the legislator. Whereas in countries affected by the system of moral reasons, the confession itself is not valid and its value is as a means of assuring the judge of the event to which the confession has been made.In the present article, an attempt has been made to examine the validity of the confession in proving the case with a descriptive analytical method. In this regard, it is examined whether a criminal judge can issue a sentence as soon as the accused confesses, and this validity remains until the judge is aware of its inaccuracy? or that the sentence can be issued only on the basis of a confession when the judge is satisfied with it? And basically this persuasion can be based on confession alone or does it need other supporting evidence? In order to answer these questions, while briefly studying the legal system of some Islamic countries, the issue has been specifically examined from the perspective of the Codified regulations, legal doctrine and judicial procedure of our country. The superficial conflict between the approach of the Islamic Penal Code and the Code of Criminal Procedure on this issue has added to the complexity of the issue, which makes it necessary to rely on interpretive methods to accept the Relevant validity of criminal confession.

individuals access to internet is one of the current debates in international and national levels from economic, cultural, social, political and legal perspectives. From legal perspective, the main question is that if access to internet is individual right? What is its content and how it could be protected and realised? This article, based on desk research method and studying international and reginal instruments and interpretations, national legislative administrative and judicial practices and legal scholars viewpoints, has concluded that existence of this right is dominant view, but, its content is disputable. For illustration of its content, have induced, right to connection, principle of neutrality, right to anonymity, right to encryption and right to safe and transparent internet as ingredients and elements of the umbrella right of access to internet. Its concentration is on access and not on the content which would be transmitted after access. Thus, this right is structural right not substantive one.

The high-standing status of established law in Iran’s legal system has been manifested as an obvious and unchangeable affair in ideas of thinkers. However, in administrative law, particularly law of employment politically affected legislative system and non-pursuit of scientific and specialized ideas as well as repeated alterations of administrative rules have triggered unstable, dispersive, contradictory and cumulative rules to appear in this field, leading to inefficiency of rules. Law has been weak to play its inherent role as predictable, regulative and decisive source and has followed diversified procedures of administrative authorities and branches of administrative court of justice. Among the other things, judges of the administrative court of justice as administrative justice for obligating their adjudication and resolution of cases have this ability to deal with this inefficiency while acting as judge of the branch, members of specialized bodies and public bodies. The present paper has aimed to prove the above claim, firstly by describing and naming applications of such laws; secondly by analyzing rules and ideas of administrative court of justice. The results show that inefficiency of legislative system in this field implicitly and as a result of judiciary decisions in the court led to recognition of customary role of judiciary ruling for administrative court of justice and to some extent similar to status of supreme courts in common law system as well as status of judicial precedent as the main source in Iran’s administrative law system such as common law system. However, law of the first source is administrative law in Iran.Keywords: Rule making, Judiciary Precedent, Administrative Adjudication, Administrative Court of Justice, Inefficiency of laws

Abstract The mental disposition of individualism and natural law advocates is the main trough of the “right not to be punished”. This right is an innovative and great disputable issue among the law philosophers of criminal. Multidimensionality and ambiguity of “right” and “punishment” have caused a wider area of aforementioned challenge. This article presents the meaning of the “right to not be punished” besides some investigations of its main philosophical and criminological foundations through descriptive-analytic method. Our research found that the “right not to be punished” is as the type of “conditional negative claim-right” and included in natural and fundamental rights of a person. Human dignity, harm and offense principles are philosophical foundations of the right not to be punished. Strain, radical (critical) and Labelling theories are among criminological foundations that form this right; they make its philosophical basis more understandable and acceptable by referring to other researches in social sciences. It is obvious that paying attention to the concept and foundations of the aforesaid right results in reasonable saving on both of criminalization and sentencing in criminal law.

The point of departure for the law and the sign of the adherence to the rule of law is the existence of a constitution in one country. In the legal system of Iran, the safeguarding of the constitution is enforced by the Guardian Council and the judiciary. Nevertheless, the Guardian Council seems to be in line with the principles of fair trial enshrined in the constitution, When reviewing the legal and fundamental principles of the Code of Criminal Procedure, approved in 1392, some of the provisions of this law are in conflict with the principles of fair trial enshrined in the constitution. Accordingly, the analysis of existing conflicts, as well as the possibility of invoking the judges of the courts to the constitution, as well as the non-implementation of legal provisions against the principles of the Constitution. The present study, with a descriptive-analytical method, attempts to measure the compliance with ordinary laws related to the principles of superiority and, in the event of a change and non-conformity, to describe the guarantee of the implementation of these contradictions. The results indicate that the Code of Criminal Procedure, passed in 1392, despite the great progress made in observing the principles of fair trial enshrined in the constitution, in cases related to the right to appoint a lawyer and the publicity of dealing with political and press congresses, the principles related to separation of powers And other cases, contain sentences contrary to the spirit of the Constitution

Achievements of different knowledge such as criminology and penology and also use of answering experiences to criminals show that equivalent giving response and answering to crimes perpetrators, were inefficient and that lead to stabilizing crimes of juvenile offender. In the meantime, documents and international regulations of human rights also with emphasis on different components are still in search for blockage of cycle of becoming a habit of delinquent of this category of citizens. The bests interests of juvenile offender, that as a strategic and fundamental principle was important for system of criminal policy of united nations, and considered as an index so that internal criminal policymakers of countries by that can make decision about choosing methods for removal and stop of relationship of children and teens with criminal process for ever and can be provided as a goal. Criminal justice system of Iran also by these changes in 1392 and by following from paragraph 1 of article 3 of convention on the rights of the children tried to respect to this principle and, in the light of readings of it, in two levels of giving answer and answering as that is possible select a cohesive policy and that to what extent it was successful, is a subject that this writing will consider it. Because it seems that on one hand legislator seek to respect to the bests interests of juvenile in punishable crimes and on the other hand, try to respect to laws, limits and retaliation, that in this way faced with significant duality.

Right of Retention in Securities TransactionsIn the capital market, there is a range of transactions between the issuer and the investor or between the securities buyer’s and seller’s brokers. These transactions, like other kinds transactions in the non-regulated markets, require efficient rules and sanctions. Some of the sanctions are individually restricted to the capital market transactions and have been enacted by the Securities Exchange Organization and Securities and Exchange High Counsel. Some other sanctions can be drawn out of the general rules governing contracts. It is expected that right of retention, as a general rule governing contracts, is applicable in capital market transactions, as well. However, given the specific rules governing the securities market and the necessity of using brokers’ services in this market, there are some skepticisms on the right of retention in securities transactions. This study, in a descriptive-analytic way, shows that despite the fact that the right of retention is the general rule of contracts, there are serious skepticisms regarding its application in securities transactions because of the unique nature of these transactions and the fact that these transactions are realized through brokers and central depository company. This is sometimes for the purpose of protecting investors in the context of capital market regulations but some other times violates both investors’ and brokers’ rights. Therefore, it is necessary to set up the Delivery vs. Payment (DVP) system to cover the gaps.

In order to implementation of public projects which are carried out by the executive systems, apart from the ownership, the owners of the property in the projects’ realm may be affected by the implementation of public projects. The question is whether the executive system can be held liable for such damages? This is one of the most important issues in many countries, which has sometimes been overlooked. In the present article, this issue has been studied in an analytical and comparative manner in the Iranian judicial procedure. In general, in British law, it’s spoken about three types of damages: damages resulting from the ownership of part of the property; damages resulting from the type of work and exploitation of the project and damages resulting from the deprivation (disturbance) of right. Determining the compensation in the first case is done on the base of three rules of Concurrent value or value reduction and the rule of before and after, and in the second case is based on the method of payment of damages in the scope of civil liability and in the third case, is based on the evaluation of relocation costs or completion of business activities. Iranian law and judicial precedent have no corresponding rules regarding the damages of the first and second types, and the judicial procedure does not provide a clear criterion for damages of the third type. In some cases, determining the compensation is subject to the agreement of the parties or to the extent of definite damages. However, it seems that in Iranian law, based on accepted rules and principles, it’s possible to provide acceptable justification for the application of rules in British law.

One of the major problems at present in the branches of criminal Judgments execution throughout the country, which have a significant volume of cases in these units, are cases involving default convictions and their judgments have not been actual notice. Such cases, which were not executed due to the lack of recognition and access to the convicted person, now constitute a large part of the older cases of these branches. Certainly one of the most effective legal tools for overcoming such an undesirable situation is the regulations governing the execution prescription. However, due to ambiguity in jurisprudence over the concept of "definitive verdict", this legal instrument is not well used and the Legal Department of the Judiciary has not been able to assist in resolving this dilemma by providing a proper interpretation of the provisions. On the contrary, it has added to the ambiguity of the field with its controversial and critical advisory opinions. In this article, in addition to exploring the concept of definitive verdict, numerous opinions of the legal department in this field will be criticized, and eventually, it will be shown that default judgments along with other judgments commonly accepted as definitive and non-appealable are subject to execution time lapse set forth in Article 107 of the Islamic Penal Act, 2013.

Ratification of the code of penal procedure in 1392 according to the law 1378 which considered the court of general jurisdiction had raised this question that what shall be the consequences by the separation of legal and criminal authorities? One of these effects would be the effectiveness of the legal authority from the criminal. Nevertheless to what extent are the conditions and the scope thereof legislator mentioned just the term effectiveness of the penal judgment over the judicial decision in Article 18 law 1392 while the term expressed clearly and we must study essential elements criminal review analyze the subject. In this article is that matter examining the range Issue Preclusion res Judicata Penal in Civil by mentioning the fundamentals the description and the condition of the principle mentioned above and by suggesting some judgment in the law of Iran and France through rationalizing the priority of the legal affair over penal. Finally, we have specified the exception of this subject related to the third party suffers in a loss of crime and deal with intention escape of debt. Method of research is based on style descriptive, analytical and functional (legal procedure). The principle result that in the paper was the rear is the act of proving existence the right third party suffer in a loss of law as mentioned earlier.

The Hague Conference on Private International Law concluded the 1961 Convention, The Abolishing the Requirement of Legalization for Foreign Public Documents. In 2012, the Islamic Republic of Iran approved the Act of “the Accession of the Government of the Islamic Republic of Iran to the Apostille Convention’. However, the instrument of accession to this convention has not yet been deposited with Ministry of Foreign Affairs of the Netherlands, so after several years Iran is not considered a member of this convention. The main purpose of this convention is to facilitate the certification of documents as well as to facilitate the use of internal documents in other member states of the convention. By acceding to this convention, the consular representations that mediate the certification of documents are eliminated. This research uses descriptive-analytical method to examine different parts of this convention and in each part analyzes the view of Iranian law based on the executive regulations of the Act of accession to the Convention and explains the appropriate solution in this regard. In the final part of the research, the consequences of accession to this convention are explained. With the passage of this Act, some domestic acts of Iran in reciprocal relations with the member states of this treaty have been implicitly abrogated, including the fourth paragraph of Article 1295 and Article 1296 of the Civil Code, as well as paragraph A of Article 2 of the Act of the Translation of statements and documents in courts and official offices. Accession to the convention also facilitates the attraction of foreign investment and reduces the outflow of foreign currency for certification. Therefore, Iran's accession to this convention is a positive step in the national interest and it is recommended to take other executive steps to join this treaty.